Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. Prometheus Radio Project, et al.

Nos. 19-1231, 19-1241

IN THE

Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

v.

PROMETHEUS RADIO PROJECT, ET AL.,

Respondents.

NATIONAL ASSOCIATION OF BROADCASTERS, ET AL.,

Petitioners,

v.

PROMETHEUS RADIO PROJECT, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

TYLER R. GREEN

Counsel of Record

JEFFREY M. HARRIS

ALEXA R. BALTES

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

November 23, 2020

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

STATEMENT OF INTEREST .................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 5

I.

The Third Circuit’s interpretation of §202(h)

likely renders it unconstitutional .................... 5

A.

The Third Circuit’s reading of §202(h)

likely violates the First Amendment .... 5

B.

The Third Circuit’s reading of §202(h)

likely violates the nondelegation

doctrine ................................................... 9

C.

The Third Circuit’s reading of §202(h)

likely violates the Fifth Amendment’s

equal protection principle .................... 14

CONCLUSION .......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995).......................................... 14, 15

Am. Inst. for Int’l Steel, Inc. v. United States,

806 F. App’x 982 (Fed. Cir. 2020).......................... 13

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946).................................................. 11

Big Time Vapes, Inc. v. FDA,

963 F.3d 436 (5th Cir. 2020).................................. 13

Buckley v. Valeo,

424 U.S. 1 (1976).................................................. 6, 9

Clark v. Martinez,

543 U.S. 371 (2005)........................................ 4, 5, 14

Columbia Broad. Sys. v. DNC,

412 U.S. 94 (1973)........................................ 6, 7, 8, 9

FCC v. Nat’l Citizens Comm. for Broad.,

436 U.S. 775 (1978)........................................ passim

Gundy v. United States,

139 S. Ct. 2116 (2019)................................ 10, 13, 14

Hirabayashi v. United States,

320 U.S. 81 (1943).................................................. 15

iii

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928)................................................ 10

Jennings v. Rodriguez,

180 S. Ct. 830 (2018)................................................5

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)..............................................1

Lamprecht v. FCC,

958 F.2d 382 (D.C. Cir. 1992) .......................... 14, 15

Metro Broad., Inc. v. FCC,

497 U.S. 547 (1990)...................................... 8, 14, 15

Mistretta v. United States,

488 U.S. 361 (1989)................................................ 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018)................................................1

Nat’l Broad. Co. v. United States,

319 U.S. 190 (1943).......................................... 11, 13

N.Y. Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932).................................................. 11

Paul v. United States,

140 S. Ct. 342 (2019).............................................. 13

Prometheus Radio Project v. FCC,

939 F.3d 567 (3d Cir. 2019) ............................... 3, 16

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969)...................................... 6, 7, 8, 9

iv

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984)................................................ 15

Sessions v. Morales-Santana,

137 S. Ct. 1678 (2017)............................................ 14

United States v. Lopez-Alvarado,

812 F. App’x 873 (11th Cir. 2020) ......................... 13

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014)..................................................1

Washington Mkt. Co. v. Hoffman,

101 U.S. 112 (1879)..................................................2

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001)................................................ 10

Constitution and Statutes

U.S. Const. amend. I ............................................... 6, 7

Pub. L. No. 104-104 110 Stat. 56 (1996),

as amended by Pub. L. No. 108-199,

118 Stat. 3 (2004) ........................................... passim

Other Authorities

In re 2002 Biennial Regulatory Review,

17 F.C.C. Rcd. 18503 (2002) ........................ 3, 12, 16

In re 2018 Quadrennial Regulatory Review,

33 F.C.C. Rcd. 12111 (2018) ....................................3

v

In re Amend. of Section 73.3555,

100 F.C.C.2d 74 (1985) .......................................... 12

Order on Reconsideration and Notice of Proposed

Rulemaking, 32 F.C.C. Rcd. 9802 (2017) .............. 16

Report of Editorializing by Broadcast Licenses, 13

F.C.C. 1246 (1949) ...................................................8

1

STATEMENT OF INTEREST 1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates for constitutional

individual liberties, limited government, and free

enterprise in the courts of law and public opinion. In

particular, SLF advocates to protect individual rights

and the framework set forth to protect such rights in

the Constitution. This aspect of its advocacy is

reflected in the regular representation of those

challenging overreaching governmental and other

actions

in

violation

of

the

constitutional

framework. See, e.g., Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014), and Nat’l Ass’n of Mfrs. v. Dep’t

of Def., 138 S. Ct. 617 (2018). SLF also regularly

files amicus curiae briefs with this Court about issues

of agency overreach and deference. See, e.g., Kisor v.

Wilkie, 139 S. Ct. 2400 (2019).

1 Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certifies that this brief was not authored in whole or in

part by counsel for any party and that no person or entity other

than amicus curiae or their counsel have made a monetary

contribution to the preparation or submission of this brief.

Counsel of record for all parties received timely notice of the

intent of amicus curiae to file this brief and have consented to it.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Section 202(h) of the Telecommunications Act of

1996 commands the FCC to review broadcast

ownership restrictions and to repeal regulations that

the evolving competitive market renders unnecessary.

Pub. L. No. 104-104, §202(h), 110 Stat. 56, 111-12

(1996), as amended by Pub. L. No. 108-199, §629, 118

Stat. 3, 99-100 (2004); see Brief for Industry

Petitioners (“Ind. Pet. Br.”) at 24-33. Indeed, §202(h)

explicitly commands the FCC to reevaluate its

broadcast-ownership rules in light of what is

“necessary in the public interest as the result of

competition.” §202(h) (emphasis added). “Public

interest” in the abstract might be a capacious term—

and perhaps too capacious a concept, standing alone,

to guide agency decisionmaking, see infra I.B—but its

meaning here is constrained by the rest of the

statutory text and context.

Given that Congress instructed the Commission

to consider how the “results of competition” might

obviate the need for various rules, it follows that, here,

the relevant “public interest” is combating harms that

result from anticompetitive practices. See Washington

Mkt. Co. v. Hoffman, 101 U.S. 112, 115 (1879) (“We

are not at liberty to construe any statute so as to deny

effect to any part of its language. It is a cardinal rule

of statutory construction that significance and effect

shall, if possible, be accorded to every word.”). And,

indeed, Congress enacted the Telecommunications

Act “to promote competition and reduce regulation” as

communication technology evolves. See Pub. L. No.

104-104, Preamble, 110 Stat. 56 (1996).

3

The Third Circuit thus erred in implicitly

concluding both that “public interest” reaches beyond

competition concerns and that it affirmatively

requires the FCC to consider “promoting ownership

diversity.” Prometheus Radio Project v. FCC, 939 F.3d

567, 587 (3d Cir. 2019); see id. (ordering the

Commission to “ascertain on record evidence the

likely effect of any rule changes it proposes … on

ownership by women and minorities”). Divorcing

“public interest” from “competition” is unfaithful to

the statute’s text, inconsistent with the statute’s

purpose, and problematic for the statute’s

constitutionality.

To be sure, the Commission and the Court have,

at various points, expressed “competition, localism,

and viewpoint diversity” as the “traditional policy

goals” of ownership regulations. See In re 2018

Quadrennial Regulatory Review, 33 F.C.C. Rcd.

12111, 12127 (2018) (“2018 Review”); FCC v. Nat’l

Citizens Comm. for Broad., 436 U.S. 775, 780 (1978).

Of course, neither the Commission’s independent

goals nor those advanced by the courts can rewrite the

statute’s text. But here, that is not a concern.

Competition, localism, and viewpoint diversity work

together to drive at a “touchstone” of regulating to

“ensure[] that the public has access to ‘a wide range of

diverse

and

antagonistic

opinions

and

interpretations.’” In re 2002 Biennial Regulatory

Review, 17 F.C.C. Rcd. 18503, 18516 (2002) (“2002

Review”); see Ind. Pet. Br. at 30. Properly functioning

competitive markets produce the same result,

allowing the FCC to deregulate “as the result of

competition.”

4

Preserving a true, accessible, and relevant

marketplace of ideas—as opposed to monopolizing

broadcasts by limited voices—is the central feature of

the Commission’s ownership restrictions. Section

202(h) indicates that when competition achieves this

goal, regulation need not interfere. In other words,

§202(h) is not a vehicle for the FCC to regulate

according to whatever it thinks might be good for

society, but rather a command to serve the public

interest by protecting against anticompetitive

practices and consequences.

But even if this Court harbors doubt about which

interpretation of “public interest”—a competitionbased interpretation or an unbounded interpretation

defined by anything the FCC (or the Third Circuit)

determines is for the public good—is the best reading

of the Act’s text, it should adopt the narrower reading

as a permissible saving construction that avoids at

least three constitutional conflicts. See Clark v.

Martinez, 543 U.S. 371, 380-81 (2005). First, the Third

Circuit’s expansive understanding of §202(h) will

likely lead to violations of the First Amendment if the

FCC must regulate the means and methods of

communication disconnected from concerns about

anticompetitive practices. See infra I.A. Second, if

competition concerns do not constrain the meaning of

“public interest,” then that term is not constrained at

all and likely violates the nondelegation doctrine—

especially under the more robust application of the

doctrine contemplated by at least five members of the

Court. See infra I.B. Third, forcing the FCC to prefer

ownership by women and minorities, even when doing

so has no bearing on its competitive policy goals,

5

raises problems under the Fifth Amendment’s equal

protection principle. See infra I.C.

ARGUMENT

I.

The Third Circuit’s interpretation of

§202(h)

likely

renders

it

unconstitutional.

The constitutional avoidance canon requires the

Court to “consider the necessary consequences of its

choice”

between

“two

plausible

statutory

constructions.” Clark, 543 U.S. at 380. “If one of them

would raise a multitude of constitutional problems,

the other should prevail—whether or not those

constitutional problems pertain to the particular

litigant before the Court.” Id. at 380-81; see Jennings

v. Rodriguez, 180 S. Ct. 830, 836 (2018).

Section 202(h) is best read to constrain “public

interest” by competition concerns. But at the very

least, that reading is a plausible alternative to the

Third Circuit’s

much more

expansive—and

constitutionally precarious—approach. This Court

should adopt the narrower reading to avoid likely

violations of the First Amendment, the nondelegation

doctrine, and the Fifth Amendment’s equal protection

principle.

A. The Third Circuit’s reading of

§202(h) likely violates the First

Amendment.

Requiring the FCC to give in-depth and

particularized consideration to the effect that any rule

changes will have on ownership by women and

minorities, disconnected from the need for competition

6

and diverse viewpoints, runs headlong into the

protection afforded by the First Amendment. U.S.

Const. amend. I. As a general matter, the First

Amendment dictates that the “government may [not]

restrict the speech of some elements of our society in

order to enhance the relative voice of others.” Buckley

v. Valeo, 424 U.S. 1, 48-49 (1976). Nevertheless, this

Court has long recognized that “broadcast media pose

unique and special problems not present in the

traditional free speech case”—and thus that unique

and special First Amendment considerations apply to

cases involving them. See id. at 49 n.55 (quoting

Columbia Broad. Sys. v. DNC, 412 U.S. 94, 101

(1973)). For one thing, “broadcast frequencies

constitute[] a scarce resource.” Red Lion Broad. Co. v.

FCC, 395 U.S. 367, 376 (1969). For another, “in a very

real sense listeners and viewers [of broadcast media]

constitute a ‘captive audience.’” Columbia Broad. Sys.,

412 U.S. at 127. None of this means that broadcasters

lack First Amendment freedoms or are somehow

“without protection under the First Amendment.” Id.

at 102. But it does mean that the government may

regulate use and ownership of frequencies to the

extent these unique problems actually serve to

undermine broader First Amendment principles. See

Red Lion, 395 U.S. at 388; 390; FCC v. Nat’l Citizens

Comm. for Broad., 436 U.S. at 800.

Put differently, the scarcity of broadcast

frequencies—and the possibility that a few voices

might dominate the airwaves—threatens not only the

competing speech rights of would-be broadcasters, but

also the public’s right to a free and open marketplace

of ideas. See Columbia Broad. Sys., 412 U.S. at 122

7

(identifying “the various interests in free expression of

the public, the broadcaster, and the individuals”); id.

at 123 (“[T]he public interest in providing access to the

marketplace of ‘ideas and experiences’ would scarcely

be served by a system so heavily weighted in favor of

the financially affluent, or those with access to

wealth.”). In this situation, the rights of smaller or

less affluent broadcasters who would be shut out by a

“sanctuary” of “unlimited private censorship

operating in a medium not open to all,” Red Lion, 395

U.S. at 392, align with the public’s right to a robust

marketplace of ideas.

This Court has long held that when the rights of

broadcasters who could otherwise take over the

frequencies are pitted against the broader public

interest in diverse viewpoints and information, “it is

the right of the viewers and listeners, not the right of

broadcasters, which is paramount.” Red Lion, 395

U.S. at 390. Thus, the FCC can regulate broadcast

media to serve this public interest—that is, it can

regulate according to the “public interest standard.”

See Nat’l Citizens Comm. for Broad., 436 U.S. at 795;

Columbia Broad Sys., 412 at 120, 122; Red Lion, 395

U.S. at 390.

The public interest standard recognizes that “[i]t

is the purpose of the First Amendment to preserve an

uninhibited marketplace of ideas in which truth will

ultimately prevail, rather than to countenance

monopolization of that market, whether it be by the

Government itself or a private licensee.” Red Lion, 395

U.S. at 390. The public interest standard “necessarily

invites reference to First Amendment principles, and,

in particular, to the First Amendment goal of

8

achieving the widest possible dissemination of

information from diverse and antagonistic sources.”

Nat’l Citizens Comm. for Broad., 436 U.S. at 795

(cleaned up); Metro Broad., Inc. v. FCC, 497 U.S. 547,

568 (1990) (“[T]he diversity of views and information

on the airwaves serves important First Amendment

values.”).

Given of the “right of the public to be informed,”

Columbia Broad Sys., 412 U.S. at 112, and the

consequent importance of supporting a broadcast

media that “reflect[s] different viewpoints,” id.

(quoting Report of Editorializing by Broadcast

Licenses, 13 F.C.C. 1246, 1249 (1949)), the FCC is

“permitted to take antitrust policies into account in

making licensing decisions pursuant to the public

interest standard,” Nat’l Citizens Comm. for Broad.,

436 U.S. at 795. Regulations supporting the public’s

interest in an open marketplace of ideas thus

“enhance rather than abridge the freedoms of speech

and press protected by the First Amendment.” Red

Lion, 395 U.S. at 375. But regulations that go beyond

that specific understanding of the public interest

don’t.

The Court has been explicit that when engaging

the “delica[te] and difficult[]” task of “[b]alancing the

various First Amendment interests involved in the

broadcast media,” the “process must necessarily be

undertaken within the framework of the regulatory

scheme that has evolved over the course of the past

half century.” Columbia Broad. Sys., 412 U.S. at 102.

That scheme has focused principally on combating

information monopolization. See id. at 101-02 (“In

analyzing the broadcasters’ claim that the Fairness

9

Doctrine and two of its component rules violated their

freedom of expression, we held that ‘(n)o one has a

First Amendment right to a license or to monopolize a

radio frequency; to deny a station license because the

public interest requires it is not a denial of free

speech.’” (quoting Red Lion, 395 U.S. at 389)).

Restrictions on broadcasters do not violate the First

Amendment to the extent—that is, “[o]nly when”—

they serve the broader public interest in preserving a

marketplace of ideas. See id. at 110.

When

no

concerns

about

viewpoint

monopolization exist—as the FCC found here after

reviewing its rules in light of “the public interest as

the result of competition”—then there is no basis for

altering the ordinary First Amendment principles

that prohibit the government from “restrict[ing] the

speech of some elements of our society in order to

enhance the relative voice of others.” Buckley, 424

U.S. at 48-49; see also Columbia Broad. Sys., 412 U.S.

at 102; Nat’l Citizens Comm. for Broad., 436 U.S. at

799-800. Relying on broader, ahistorical, acontextual

understandings of “public interest” to maintain

regulations and restrictions over broadcasters in such

a situation thus likely violates the First Amendment.

This Court can avoid that constitutional problem by

giving “public interest” the narrower meaning that is

consistent both with precedent and the statute’s text.

B. The

Third Circuit’s reading of

§202(h)

likely

violates

the

nondelegation doctrine.

If the FCC’s obligation to review regulations in

the “public interest” is not limited to a competition

10

analysis, then it is not limited at all and likely runs

into nondelegation problems. The nondelegation

doctrine “bars Congress from transferring its

legislative power to another branch of Government.”

Gundy v. United States, 139 S. Ct. 2116, 2121 (2019)

(plurality opinion); see Whitman v. Am. Trucking

Ass’ns, Inc., 531 U.S. 457, 472 (2001). “If Congress

could pass off its legislative power to the executive

branch, the vesting clauses, and indeed the entire

structure of the Constitution would make no sense.”

Gundy, 139 S. Ct. at 2134-35 (Gorsuch, J., dissenting)

(cleaned up). It would also threaten representative

accountability, id. at. 2135, and “invite the tyranny of

the majority that follows when” legislative and

executive responsibilities are “united in the same

hands,” id. at 2144-45.

Over the last century, the doctrine has been oft

discussed, though rarely applied to invalidate a

delegation to an administrative agency. See id. at

2130-31 (Alito, J., concurring in the judgment)

(“[S]ince 1935, the Court has uniformly rejected

nondelegation arguments and has upheld provisions

that authorized agencies to adopt important rules

pursuant to extraordinarily capacious standards.”);

see also Mistretta v. United States, 488 U.S. 361, 372

(1989) (“So long as Congress ‘shall lay down by

legislative act an intelligible principle to which the

person or body authorized to exercise the delegated

authority is directed to conform, such legislative

action is not a forbidden delegation of legislative

power.’” (cleaned up) (quoting J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928))).

During that time, the Court rejected nondelegation

11

challenges to statutes that require agencies to

regulate in “the public interest.” See Nat’l Broad. Co.

v. United States, 319 U.S. 190, 225-26 (1943); N.Y.

Cent. Sec. Corp. v. United States, 287 U.S. 12, 24-25

(1932). But it did so only after reading the statutes’

text and context not to instruct the agency to do

anything it perceives as good for society. Indeed, “a

mere general reference to public welfare without any

standard to guide determinations” would constitute

an unconstitutional delegation. Nat’l Broad. Co., 319

U.S. at 226; N.Y. Cent. Sec. Corp., 287 U.S. at 24.

Thus, the Court must look to “[t]he purpose of the

Act, the requirements it imposes, and the context of

the provision in question” to see if it narrows and

saves an otherwise impermissible delegation. Nat’l

Broad. Co., 319 U.S. at 226; N.Y. Cent. Sec. Corp., 287

U.S. at 24 (same); see also Am. Power & Light Co. v.

SEC, 329 U.S. 90, 104 (1946) (drawing “meaningful

content from the purpose of the Act, its factual

background and the statutory context in which [the

phrase] appear[s]”). In other words, the Court must

consider whether the “context” of the statute

demonstrates that “public interest” is “not to be

interpreted as setting up a standard so indefinite as

to confer an unlimited power.” Nat’l Broad. Co., 319

U.S. at 216.

Here, the text and context of §202(h) demonstrate

that the FCC is required to evaluate what the “public

interest” requires in light of competition—that is, it

should keep regulations only if they are necessary to

protect against anticompetitive concerns. See Ind. Pet.

Br. 29-33; see supra 2-4, 7-9. The Third Circuit’s

understanding, which requires the FCC to give

12

particularized consideration—disconnected from

competition concerns—to the impact that modifying or

repealing ownership restrictions would have on

women and minority ownership, is unmoored from

this context. 2 That is problematic. If “public interest”

is not constrained by “[t]he purpose of the Act, the

requirements it imposes, and the context of the

provision in question,” we are left with the kind of

“general reference to public welfare” that lacks “any

standard to guide [the FCC’s] determinations.” See

2 In addition to the evidence pointing to competition as the

relevant consideration—e.g., the stated purpose of the

Telecommunications Act and the plain text of §202(h)—other

evidence affirmatively indicates that fostering ownership by

women and minorities was not part of the traditional

understanding of public interest. In 1985, before the Act was

passed, the Commission stated that “ownership rules were not

primarily intended to function as a vehicle for promoting

minority ownership in broadcasting” and that it would be

“inappropriate to retain multiple ownership regulations for the

sole purpose of promoting minority ownership.” In re Amend. of

Section 73.3555, 100 F.C.C.2d 74, 94 (1985). And in its 2002

Review, the Commission identified four diversity goals:

viewpoint diversity, outlet diversity, source diversity, and

program diversity. See 2002 Review at 18516. It noted that

“viewpoint diversity” has always been “central” and that other

kinds of diversity serve “a proxies for viewpoint diversity.” Id. at

18518-19. Notably, the Commission excluded “ownership by

diverse groups, such as minorities, women and small

businesses,” from its traditional diversity goals by questioning

whether it had “legal authority to adopt measures to foster that

goal” “[i]n addition” to its other policy goals. Id. at 18521. Of

course, the Commission has since considered ownership by

minorities and women to be an aspect of diversity. The point here

is simply that it wasn’t a part of the original understanding of

“public interest.”

13

Nat’l Broad Co., 319 U.S. at 226. Put differently, if

“public interest” isn’t constrained by competition

concerns, then it isn’t constrained at all. And that may

well pose a delegation problem even under this Court’s

historically hands-off approach to the nondelegation

doctrine.

And that hands-off approach might soon change.

Recently, five members of this Court have indicated

that “safeguarding [the] structure” of the Constitution

will require the Court to breathe new life into the

nondelegation doctrine as a tool to limit Congress’s

ability to “assign” away its responsibility through the

“announce[ment of] vague aspirations.” See Gundy,

139 S. Ct. at 2133, 2135, 2148 (Gorsuch, J.,

dissenting); id. at 2131 (Alito, J., concurring in the

judgment) (“If a majority of this Court were willing to

reconsider the approach we have taken for the past 84

years, I would support that effort.”); Paul v. United

States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J.,

respecting the denial of certiorari) (“Justice Gorsuch’s

scholarly analysis of the Constitution’s nondelegation

doctrine in his Gundy dissent may warrant further

consideration in future cases.”). These indications

have led lower courts to conclude that this Court

appears poised to reexamine and reinvigorate the

doctrine. Big Time Vapes, Inc. v. FDA, 963 F.3d 436,

443 & n.20, 447 (5th Cir. 2020); United States v.

Lopez-Alvarado, 812 F. App’x 873, 879 & n.3 (11th Cir.

2020); Am. Inst. for Int’l Steel, Inc. v. United States,

806 F. App’x 982, 990 (Fed. Cir. 2020).

If “public interest” in §202(h) can simply mean

anything that the executive branch (or, for that

matter, the judicial branch) deems good for the public,

14

then it embodies the kind of “vague aspiration[]” that

threatens the very structure of our tripartite

constitutional system. Gundy, 139 S. Ct. at 2133

(Gorsuch, J., dissenting). Such a construction would

require the Court to confront the nondelegation

doctrine again. The Court can avoid this issue by

reading “public interest” through a competition lens.

And it should do so. See Clark, 543 U.S. at 380-81.

C. The Third Circuit’s reading of

§202(h) likely violates the Fifth

Amendment’s

equal

protection

principle.

Broadcast regulations and polices can give a

preference to minorities and women if they satisfy

heightened scrutiny. See Adarand Constructors, Inc.

v. Pena, 515 U.S. 200, 227 (1995) (overruling the use

of intermediate scrutiny in Metro Broadcasting, Inc. v.

FCC, 497 U.S. 547 (1990), in favor of strict scrutiny

for race classifications); Sessions v. Morales-Santana,

137 S. Ct. 1678, 1690 (2017) (applying intermediate

scrutiny for sex classifications); Lamprecht v. FCC,

958 F.2d 382, 390-93 (D.C. Cir. 1992) (Thomas, J.).

The government has a compelling interest in avoiding

viewpoint monopolization of the airwaves. And if it

can show that sex-based policies are substantially

related to that interest and that race-based policies

are narrowly tailored to achieve that interest, then it

can regulate on the basis of those protected

characteristics. Adarand, 515 U.S. at 227; Lamprecht,

958 F.2d at 390-93.

Inherent in that increased-scrutiny analysis is

“the basic principle that the Fifth and Fourteenth

15

Amendments to the Constitution protect persons, not

groups.” Adarand, 515 U.S. at 227. “It follows from

that principle” that group classifications are “‘in most

circumstances irrelevant and therefore prohibited’”

and “should be subjected to detailed judicial inquiry to

ensure that the personal right to equal protection of

the laws has not been infringed.” Id. (quoting

Hirabayashi v. United States, 320 U.S. 81, 100 (1943));

Lamprecht, 958 F.2d at 391-92 (explaining the

dangers that drive the intermediate scrutiny

applicable to sex-based classifications in this context

and noting that “the Supreme Court has repeatedly

denounced ‘unsupported generalizations about the

relative interests and perspectives of men and

women’” (quoting Roberts v. U.S. Jaycees, 468 U.S.

609, 628 (1984))).

Given the dangers that group classifications pose

to the equal protection of all persons, there must be an

appropriately tight relationship between race- or sexbased classifications and the accepted goals of federal

actors like the FCC. See Metro Broad., 497 U.S. at 569;

see also Lamprecht, 958 F.2d at 398 (“When the

government treats people differently because of their

sex, equal-protection principles at the very least

require that there be a meaningful factual predicate

supporting a link between the government’s means

and its ends.”). If such a relationship is lacking, the

regulation or policy must fall in the face of the equal

protection embodied in the Fifth Amendment. See,

e.g., Lamprecht, 958 F.2d at 398.

Here, the FCC has determined that some current

ownership restrictions are not “necessary in the public

interest as the result of competition.” §202(h); see

16

Order on Reconsideration and Notice of Proposed

Rulemaking, 32 F.C.C. Rcd. 9802, 9806-07, 9831, 9852

(2017); Ind. Pet. Br. at 14-17. In other words, it

determined that the restrictions are unnecessary to

maintain diverse viewpoints and a robust

marketplace of ideas. For its part, the Third Circuit

held that the FCC cannot make such a determination

without first collecting data or engaging in “in-depth

theoretical analysis” on how the rule change will affect

ownership by minorities and women. See Prometheus,

939 F.3d at 587; Ind. Pet. Br. at 17-19. But since “[n]o

party identifies any reason to question the FCC’s key

competitive findings and judgments,” see Prometheus,

393 F.3d at 593 (Scirica, J., dissenting)—that is, since

it is undisputed that the rule changes will not

endanger competitive markets or viewpoint

diversity—a group-based analysis would be necessary

only for its own sake and not the task at hand. 3 So the

Third Circuit’s mandate creates an equal protection

problem. See supra 14-15.

The Court should give the public interest

standard its appropriate, narrower meaning and

avoid this troubling confrontation with the Equal

Protection principle of the Fifth Amendment.

3 Notably, in its 2002 Review, the FCC cited this Court’s

equal protection precedents in questioning whether it had “legal

authority” to adopt any measures “to foster th[e] goal” of

“ownership by diverse groups.” See 2002 Review at 18521 &

n.123. Against this backdrop, the Third Circuit’s conclusion that

the FCC can never act without applying particularized measures

to foster ownership diversity is startling.

17

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

TYLER R. GREEN

Counsel of Record

JEFFREY M. HARRIS

ALEXA R. BALTES

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tyler@consovoymccarthy.com

November 23, 2020

Counsel for Amicus Curiae