NAA asks U.S. Supreme Court to review cross-ownership decision

NAA joined Tribune Co., Morris Communications Co., The Scranton (Pa.) Times, Fox Television Stations Inc. and others in filing a petition for certiorari on Dec. 5 asking the U.S. Supreme Court to review the decision by the 3rd U.S. Circuit Court of Appeals in Prometheus Radio Project v. FCC. The petition asks the court to decide whether the Federal Communications Commission’s continued restriction on cross-ownership of newspapers and broadcast stations in the same market violates the First Amendment and equal protection clause.

The petition contends the newspaper-broadcast ban is based on long-outdated constitutional standards and factual assumptions, namely that the scarcity of broadcast spectrum (or limited number of frequencies reserved for public broadcasting) justifies government regulation to promote greater diversification of ownership and of viewpoints. When the FCC adopted the ban in 1975, consumers obtained news and information mainly from their one local newspaper and from one of the three major television networks. However, the ban has continued for almost 40 years despite the significantly changed media landscape, with cable, satellite television and the Internet offering a vast array of options in the media marketplace.

The petition argues that because the scarcity doctrine no longer is valid, the court should apply strict scrutiny to ownership restrictions. Thus, resolution of the question presented – i.e., whether the scarcity doctrine should be overruled, thereby invalidating the FCC’s media ownership rules – is likely to be outcome determinative for most ownership rules evaluated by the FCC in its statutory quadrennial reviews.  The Telecommunications Act of 1996 requires the FCC to review all of its media ownership rules every four years and repeal or modify any regulation it determines to be no longer in the public interest.

The FCC currently is conducting its 2010 quadrennial review. A notice of proposed rulemaking – which, among other things, will outline potential changes to newspaper/broadcast cross-ownership rules – is expected from the agency by the end of 2011.

First Published: December 12, 2011