Project Narrative explaining that it is “standard practice” to follow the historical primary frontal dune line
How later courts described this case
- Project Narrative explaining that it is “standard practice” to follow the historical primary frontal dune line
- using 5 U.S.C. section 706(1) to order the Federal Communications Commissioner to update regulations defining an eligible entity
- "Th[e] repeated use of 'shall' creates 'an obligation impervious to ... discretion.' " (omission in original) (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26 , 35, 118 S.Ct. 956 , 140 L.Ed.2d 62 (1998) )
- discussing the use of Form 323 to gather data about minority ownership
Written by the judges who cited it.
The opinion
SCIRICA, Circuit Judge,
concurring in part and dissenting in part.
I join in my colleagues’ comprehensive analysis and disposition of the eligible entity definition and the television joint sales agreement rule. With regard to the Commission’s inaction on the broadcast ownership rules, however, I respectfully dissent. I would neither dismiss the petitions nor would I vacate the broadcast ownership *61 rules. But I would compel the Commission to take final action.
The Commission has declined to issue a final order that decides whether the five broadcast ownership rules continue to be “necessary in the public interest as the result of competition,” as required by Section 202(h) of the Telecommunications Act of 1996. By opting to “merge” the 2010 Quadrennial Review into the 2014 Quadrennial Review rather than complete it, the Commission has evaded its congressional mandate under Section 202(h) and this Court’s directives in Prometheus II. The Quadrennial Review process has foundered and, like a sailboat, needs to right itself and get back on course.
The Commission has a duty to complete its now long-overdue 2010 Quadrennial Review, both under Section 202(h) and under our remand order in Prometheus II. Section 706(1) of the Administrative Procedure Act, 5 U.S.C. § 706 (1), permits us to “compel agency action unlawfully withheld or unreasonably delayed” in circumstances where (as here) the agency is compelled to take a specific action. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 62-63 , 124 S.Ct. 2373 , 159 L.Ed.2d 137 (2004). This Court also has authority to issue a writ of mandamus to prevent the frustration of its own previously-issued orders. See In re: Chambers Dev. Co., Inc., 148 F.3d 214, 224 (3d Cir. 1998); see also In re Core Commc’ns, 531 F.3d 849, 856 (D.C. Cir. 2008).
It has been more than eight years since the public and the industry have had the benefit of a current assessment of the broadcast ownership rules. As my colleagues aptly observe, the Commission’s delay has had significant consequences. While the industry changes and evolves and new technologies emerge, broadcasters are required to adhere to a set of ownership rules, at least one of which is now four decades old, without the benefit of a fresh assessment of whether “such rules are necessary in the public interest as the result of competition.” Perhaps they are and perhaps they are not; that decision is not for this Court to make in the first instance. But the Commission must make some decision, either to retain, repeal, or modify those rules.
As my colleagues recognize, the Deregu-latory Petitioners chose to pursue a bold form of relief, asking this Court to strike down all of the broadcast ownership rules entirely. But an advocate’s arguable overreach is not a basis for declining to act. Given the egregious delay in the face of a congressional directive and a mandate from this Court, a disagreement with the Petitioners about the proper form of relief should not bar us from taking action.
The Commission Chair has stated that he intends to circulate a draft final order by the end of June. But a draft proposal by one Commissioner is no guarantee that a final order is forthcoming. At oral argument, the Commission would not agree to any firm deadline for action, noting, “It’s a multimember body. It’s hard to bind them.” There should be a firm timeline for action.
In In re Core Communications, the Court of Appeals for the D.C. Circuit considered a similar case of egregious Commission delay under a different provision of the Telecommunications Act of 1996. The Court determined that the unreasonably delayed agency action under APA § 706(1) and the agency’s violation of the Court’s prior mandates warranted judicial intervention. It therefore granted a writ of mandamus and directed the Commission to respond — in the form of a final, appealable decision — within a strict timeline for action. See 531 F.3d at 862 .
*62 I would follow that approach here. Under APA § 706(1) and in furtherance of our mandate in Prometheus II, I would issue a writ of mandamus and remand this matter to the Commission with the instruction that it must adopt and issue a final decision completing the 2010 Quadrennial Review of the broadcast ownership rules within six months. I would direct that this Court retain jurisdiction to ensure compliance with this deadline.