FCC v. Prometheus Radio Project (19-1231)

argument 19-1231

FCC v. Prometheus Radio Project

Supreme Court of the United States 1h 20m 8 speakers 8 chapters transcribed 6 days ago official recording ↗

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What statutory provision requires the FCC to review cross‑ownership rules every four years?

John G. Roberts 0:00

We will hear argument first this morning in case nineteen twelve thirty one, Federal Communications Commission versus Prometheus Radio Project and the consolidated case. Mr Stewart.

Unknown 0:12

Mr. Chief Justice, and may it please the court, Section two hundred two H of the Telecommunications Act of nineteen ninety-six reflects Congress's conclusion that, in light of intervening competitive developments, broadcast cross ownership restrictions adopted in an earlier era may no longer be warranted. To ensure that such restrictions do not remain in force simply through inertia, Congress required the FCC to re examine those rules every four years. and to repeal or modify any rules that no longer serve the public interest. After reconsidering its ownership rules in accordance with Section 202H's mandate, the FCC determined in 2017 that its newspaper broadcast and radio television rules should be repealed entirely and that its local television rules should be relaxed.

Unknown 0:59

The Commission explained that the profusion of new media outlets, particularly through cable and the internet, alleviated the v viewpoint diversity concerns that had originally justified the restrictions. It further found that the rules disserved the public interest by preventing economically efficient combinations that would provide consumers better broadcast service. The Court of Appeals did not find fault with that analysis. Indeed, the court in 2004 had sustained the FCC's determination that the blanket newspaper broadcast cross-ownership ban no longer served the public interest. The court nevertheless vacated the FCC's rule changes on the ground that the agency had not adequately assessed the changes likely effect on minority and female ownership levels.

Unknown 1:43

The court's elevation of that single factor has no basis in the governing statute, and the court failed to show adequate respect for the agency's predictive judgments and its balancing of competing policy objectives. The Third Circuit's judgment should be reversed.

John G. Roberts 1:58

Uh m Mr. Stewart, uh was the uh FCC required to consider the impact on minority and female ownership uh in the twenty seventeen reconsideration order?

Unknown 2:09

We don't think anything in the statute required the FCC to consider that factor. The Court of Appeals, in what we referred to as Prometheus III, its prior decision in this line of cases, had included a footnote that directed the FCC when it next reevaluated its cross ownership rules to consider that factor. And the analysis that the FCC did in the reconsideration order was in compliance with So it could have So it could

John G. Roberts 2:36

have it could have said nothing about that at all, uh uh in in changing the focus of its uh regulations?

Unknown 2:44

Yes, h historically when the Commission has uh adopted cross ownership rules of various sorts, it has been to promote viewpoint diversity and and localism, to ensure that there is uh as much of a plethora as possible of distinct voices within the local community. And it has not historically taken into account impacts on minority and female ownership in conducting that analysis. And it nothing in two hundred two H would have required the Commission to start doing that in its quadrennial reviews.

John G. Roberts 3:16

W what scrutiny would apply when the uh Commission simply shifts uh priorities? Let's say that there were was uh consideration of uh female minority ownership and the uh cross ownership rules and it just decided, well we think the latter is more important than the former, uh so we're going to focus solely on the on the latter.

Unknown 3:35

I I think it's really b rational basis review. That is, if the FCC had decided to uh adopt an explicitly race or gender conscious standard, that is, give a preference to members of racial minorities or to women as such, then it would be required to satisfy heightened scrutiny. But it's not a good thing. Thank you, Council.

John G. Roberts 3:54

Uh Justice Thomas?

Clarence Thomas 3:56

Uh thank you, Mr. Chief Justice. Uh Mr. Stewart, uh you indicate that uh the landscape uh in the area of viewpoint diversity has changed over the years. Could you talk a bit about that particularly?