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

Supreme Court briefDec 23, 2020

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Nos. 19-1231, 19-1241

IN THE

Supreme Court of the United States

————

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Petitioners,

PROMETHEUS RADIO PROJECT, et al.,

Respondents.

————

NATIONAL ASSOCIATION OF BROADCASTERS, et al.,

Petitioners,

PROMETHEUS RADIO PROJECT, et al.,

Respondents.

————

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

————

BRIEF OF THE DISTRICT OF COLUMBIA AND

THE STATES OF CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, HAWAII, ILLINOIS,

MAINE, MARYLAND, MASSACHUSETTS,

MICHIGAN, MINNESOTA, NEVADA, NEW JERSEY,

NEW MEXICO, NEW YORK, NORTH CAROLINA,

OREGON, PENNSYLVANIA, RHODE ISLAND,

VERMONT, VIRGINIA, AND WASHINGTON AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

————

KARL A. RACINE

Attorney General for the

District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Principal Deputy

Solicitor General

CARL J. SCHIFFERLE

Deputy Solicitor General

SAMSON J. SCHATZ

Assistant Attorney General

D.C. OFFICE OF THE

ATTORNEY GENERAL

400 6th Street, NW

Suite 8100

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the Third Circuit correctly deferred to

the Federal Communications Commission’s consistent

interpretation that ownership diversity is an important aspect of the public interest served by its

broadcast ownership rules and correctly held that the

Commission acted arbitrarily and capriciously in

repealing most of those rules without any reasoned

analysis of ownership diversity.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

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

INTRODUCTION AND INTEREST OF

AMICI CURIAE ...............................................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. Diverse Local Media Is Critical To State

And Local Governance ...............................

A. Diverse ownership and media voices

are vital to civic awareness and

engagement ..........................................

B. Representative local media is particularly important to states and localities

during emergencies .............................

II. Industry Petitioners’ Interpretation Of

Section 202(h) Would Diminish The FCC’s

Power To Promote Localism, To The Detriment Of State And Local Governments ...

A. Industry Petitioners’ position threatens

localism ................................................

B. Local news plays a crucial role in

state and local democracies .................

C. Consolidation of local media ownership has contributed to the deleterious effects of vanishing local news .....

TABLE OF CONTENTS—Continued

Page

D. The Internet has not proved an

adequate substitute for declining local

media....................................................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

Cases

Page(s)

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) ...................................

Fox Television Stations, Inc. v. FCC,

280 F.3d 1027 (D.C. Cir.), modified on

reh’g, 293 F.3d 537 (D.C. Cir. 2002) ........

Nat’l Assoc. of Broads. v. FCC,

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

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .....................................

Statutes

Telecommunications Act of 1996, § 202(h),

47 U.S.C. § 303 note.................................passim

Court Filings

Suppl. App., Prometheus Radio Proj. v. FCC,

No. 17-1107 (3d Cir. Apr. 12, 2019).......... 24, 25

Executive and Legislative Materials

2002 Biennial Regulatory Review, 18 FCC

Rcd. 13,620 (July 2, 2003) ........................

2016 Order, 31 FCC Rcd. 9864 (Aug. 25,

2016) .........................................................passim

Broadcast Localism, 19 FCC Rcd. 12,425

(June 7, 2004) ............................................ 4, 14

TABLE OF AUTHORITIES—Continued

Page(s)

C.R. Div., U.S. Dep’t of Just., Tips and Tools

for Reaching Limited English Proficient

Communities in Emergency Preparedness,

Response, and Recovery (2016) ........... 11, 12, 13

Localism Public Hearing in Washington,

D.C., FCC (Oct. 31, 2007) ..................... 8, 10, 11

Public Interest and Localism: Hearing

Before the S. Comm. on Com., Sci., and

Transp., 108th Cong. (2003) .....................

U.S. Dep’t of Just. et al., Guidance to State

and Local Governments and Other Federally Assisted Recipients Engaged in Emergency Preparedness, Response, Mitigation,

and Recovery Activities on Compliance

with Title VI of the Civil Rights Act of

1964 (Aug. 16, 2016) .................................

Steven Waldman, Working Grp. on Info.

Needs of Cmtys., FCC, The Information

Needs of Communities: The Changing

Media Landscape in a Broadband Age

(July 2011)................................................passim

Other Authorities

A Month After Katrina, A Long Road

Ahead, NBC News (Sept. 28, 2005) ..........

Penelope Muse Abernathy, U.N.C. Hussman

Sch. of Journalism & Media, News

Deserts and Ghost Newspapers: Will

Local News Survive? (2020) .....................passim

vii

TABLE OF AUTHORITIES—Continued

Page(s)

About Us Washington D.C. Business Daily,

DC Business Daily ....................................

Davey Alba & Jack Nicas, As Local News

Dies, a Pay-for-Play Network Rises in Its

Place, N.Y. Times (Oct. 20, 2020) ............. 28, 29

Roberta Baskin, Revealing How Dentists

Profit by Abusing Children, Nieman Reps.

(Mar. 23, 2009) ..........................................

Timothy Burke, How America’s Largest

Local TV Owner Turned Its News

Anchors into Soldiers in Trump’s War on

the Media, Deadspin (Mar. 31, 2018) .......

Maria Cantwell, Ranking Member, S. Comm.

on Com., Sci., and Transp., 116th Cong.,

Local Journalism: America’s Most Trusted

News Sources Threatened (Oct. 2020) .....passim

John Creamer, Inequalities Persist Despite

Decline in Poverty For All Major Race

and Hispanic Origin Groups, U.S. Census

Bureau (Sept. 15, 2020) ............................

Joshua P. Darr et al., Newspaper Closures

Polarize Voting Behavior, 68 J. of

Commc’n 1007 (2018) ................................

Sydney Ember & Nicholas Fandos, Pillars

of Black Media, Once Vibrant, Now

Fighting for Survival, N.Y. Times (July 2,

2016) ..........................................................

6, 8

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Mike Fannin, The Truth in Black and

White: An Apology From the Kansas City

Star, Kan. City Star (Dec. 20, 2020) ........

Paul Farhi et al., In This Town, You Can

Flip the Channel All You Want—The

News Is Often the Same, Wash. Post

(June 14, 2018) .............................. 23, 24, 25, 26

Gallup & Knight Found., American Views

2020: Trust, Media and Democracy

(Nov. 9, 2020) ............................................ 18, 21

Pengjie Gao et al., Financing Dies in

Darkness? The Impact of Newspaper

Closures on Public Finance, 135 J. of Fin.

Econ. 445 (2020) .................................. 20, 21, 29

Hadassa Gerber, 2020 Coronavirus Media

Usage Study, Television Bureau of Advert.

(Apr. 2020).................................................

Sherita Hill Golden, Coronavirus in African

Americans and Other People of Color,

Johns Hopkins Med. (Apr. 20, 2020) ........

Elizabeth Grieco, Newsroom Employees Are

Less Diverse Than U.S. Workers Overall,

Pew Rsch. Ctr. (Nov. 2, 2018) ...................

Danny Hayes & Jennifer L. Lawless, The

Decline of Local News and Its Effects:

New Evidence from Longitudinal Data,

80 J. of Politics 332 (2018) ........................

TABLE OF AUTHORITIES—Continued

Page(s)

Clara Hendrickson, Critical in a Public

Health Crisis, COVID-19 Has Hit Local

Newsrooms Hard, Brookings (Apr. 8,

2020) ..........................................................

Homepage, DC Business Daily ....................

Juliana Keeping & Hannah Covington,

Oklahoma Storms: Many Spanish-Speaking Families Struggle to Understand

Storm Precautions, Oklahoman (July 14,

2013 ...........................................................

Mary Ellen Klas, Less Local News Means

Less Democracy, Nieman Reps. (Sept. 20,

2019) ..........................................................

Sarah Koenig, 468: Switcheroo, Act II:

Forgive Us Our Press Passes, This Am.

Life (June 29, 2012) ..................................

Susan S. Kuo, Speaking in Tongues: Mandating Multilingual Disaster Warnings

in the Public Interest, 14 Wash & Lee J.

C.R. & Soc. Just. 3 (2007) .........................

Brenda Muniz, Nat’l Council of La Raza,

In the Eye of the Storm: How the Government and Private Response to Hurricane

Katrina Failed Latinos (2006) .................. 11, 12

Vishnu P. Nepal et al., Off. of Surveillance

& Pub. Health Preparedness, Houston

Dep’t of Health & Hum. Servs., Understanding Disaster Preparedness of Linguistically Isolated Groups: Chinese, Somali,

Vietnamese and Spanish Speaking Communities (Nov. 2009) .................................

TABLE OF AUTHORITIES—Continued

Page(s)

Felix Obeholzer-Gee & Joel Waldfogel,

Media Markets and Localism: Does

Local News en Español Boost Hispanic

Voter Turnout?, 99 Am. Econ. Rev. 2120

(2009) ......................................................

Pew Rsch. Ctr., For Local News, Americans

Embrace Digital but Still Want

Strong Community Connection (Mar. 26,

2019) ...................................................... 9, 10, 16

Press Release, FCC News, Commissioner

Starks Statement on Fourth Broadcast

Station Ownership Report (Feb. 14,

2020) .......................................................

Elisa Shearer, Local News is Playing an

Important Role for Americans During

COVID-19 Outbreak, Pew Rsch. Ctr.

(July 2, 2020)............................................... 9, 19

Erin M. Simpson, Nation Without Place:

Does Local News Decline Cause Democratic Dysfunction in the Contemporary

United States? (June 2019) (MRes thesis,

U. Oxford) ...................................... 18, 21, 26, 29

Trina Thomas, Equinix Expands to

Washington, D.C., DC Business Daily

(Nov. 24, 2020) ........................................... 27, 28

Trina Thomas, Genuine Parts to Launch

Lebanon Location, Tenn. Business Daily

(Nov. 26, 2020) ..........................................

TABLE OF AUTHORITIES—Continued

Page(s)

Trina Thomas, POLYWOOD Expands Production Site to Syracuse, Ind. Business

Daily (Nov. 30, 2020) ................................

Timeline of the New York City Housing

Authority’s Response, N.Y. Times (Dec. 9,

2012) ..........................................................

S. Derek Turner, Free Press, Off the Dial:

Female and Minority Radio Station Ownership in the United States (June 2007) ...

INTRODUCTION AND

INTEREST OF AMICI CURIAE

Local news is crucial to the functioning of state and

local democracies, and diversity is key to a robust local

news system capable of reaching all state residents.

Unfortunately, financial pressures, increasing consolidation of news outlets, and misplaced reliance on the

Internet have made communities’ news less local and

less diverse. The District of Columbia and the States

of California, Colorado, Connecticut, Delaware, Hawaii,

Illinois, Maine, Maryland, Massachusetts, Michigan,

Minnesota, Nevada, New Jersey, New Mexico,

New York, North Carolina, Oregon, Pennsylvania,

Rhode Island, Vermont, Virginia, and Washington

(“Amici States”) submit this brief as amici curiae in

support of respondents because the health of their

state and local institutions is inextricably linked with

the fate of local news.

The current coronavirus pandemic makes plain both

the important role of local news and the tremendous

economic pressures on the institution. On the one

hand, over half of the country has increased its

local news intake during the coronavirus pandemic,

as Americans seek comfort in trusted personalities

and look for information about local restrictions and

business closures. Maria Cantwell, Ranking Member,

S. Comm. on Com., Sci., and Transp., 116th Cong.,

Local Journalism: America’s Most Trusted News

Sources Threatened 8 (Oct. 2020).1 On the other hand,

“the pandemic and the ensuing recession have greatly

accelerated the loss of local news that has been

occurring over the past two decades.” Penelope Muse

Abernathy, U.N.C. Hussman Sch. of Journalism &

Available at https://bit.ly/38fjqKo.

Media, News Deserts and Ghost Newspapers: Will

Local News Survive? 5 (2020).2 What is more, the

quality of many communities’ news has declined as

media conglomerates have bought up outlets, fired

reporters, cut coverage of local issues, and even

broadcast the same content on multiple channels.

“The paradox of the coronavirus pandemic and the

ensuing economic shutdown is that it has exposed the

deep fissures that have stealthily undermined the

health of local journalism in recent years, while also

reminding us of how important timely and credible

local news and information are to our health and that

of our community.” Id. at 5.

The Amici States’ interest in the preservation of

diverse, local media are of the highest order. Local

news plays a crucial role in state political systems,

prompting enforcement actions and spurring election

turnout. Local news outlets cover statehouses, hold

state institutions accountable, and provide a channel

of communication between state officials and their

residents. Truly local news is essential given the

diversity of communities that the Amici States serve,

from dense urban areas like the District of Columbia

to rural communities in New Mexico and Vermont.

Local news ensures that those diverse voices are

heard, particularly for populations that are often

underserved.

The Federal Communications Commission’s (“FCC”

or “Commission”) proposed overhaul of local ownership rules threatens to further diminish the important

role local news plays in informing, engaging, and

connecting the Amici States’ residents. As respondents ably argue, the Third Circuit was correct to hold

Available at https://bit.ly/34dWx94.

the FCC to its burden of logical, methodical reasoning,

and to make the Commission show its work before

promulgating rules that might threaten diverse local

media.

SUMMARY OF ARGUMENT

1. The Third Circuit correctly insisted that, in its

rulemaking pursuant to Section 202(h) of the Telecommunications Act of 1996, the Commission must

consider the impacts on media ownership diversity.

Diverse local news is critical to healthy state and local

governments, as well as the communities they serve.

Women and people of color have long been underrepresented in the media, and one reliable method

of fostering newsroom diversity is to encourage

ownership diversity. And diversity in the newsroom

and boardroom matters. The average media outlet is

less likely to cover issues affecting communities of

color, often underreporting issues like public safety,

education, and fair housing. The dearth of trustworthy coverage from sources that look and sound like

their local communities can have negative effects on

civic engagement and voting, to the detriment of states

serving these residents.

Representative and trusted media sources are particularly critical to state and local governments during

emergencies. When storms, fires, or floods strike, local

news is often the only source of information about

whether to evacuate and where to seek shelter. When

states lack adequate media outlets—for example,

foreign language stations—the consequences can be

deadly. And the lack of accessible, in-language information on health and safety can further tax limited

state resources.

2. This Court should also reject Industry Petitioners’

reading of Section 202(h) that subverts not only

diversity but also localism—the idea that local media

should serve the “interests and needs of their communities,” Broadcast Localism, 19 FCC Rcd. 12,425,

12,425 (June 7, 2004). Industry Petitioners argue that

“Section 202(h) requires the Commission to assess its

ownership rules in light of one factor and one factor

only: ‘competition,’ not the effect of its rules on

minority and female ownership.” Industry Pet’rs Br.

24-25. This argument ignores the statute’s own terms,

which mandate that the Commission “shall determine

whether any such rules are necessary in the public

interest” and “shall repeal or modify any regulation it

determines to be no longer in the public interest.”

Telecommunications Act of 1996, § 202(h), 47 U.S.C.

§ 303 note (emphases added). If Congress meant the

FCC to regulate on the sole basis of competition—at

the exclusion of any other “public interest”—it hardly

would have included that term in the statute twice.

Moreover, Industry Petitioners’ position, if adopted,

would not only restrict the Commission’s power to

consider diversity, it would also prohibit the FCC from

seeking to foster localism, which is another key “public

interest” factor, and one that is especially important to

the Amici States.

Local news is an essential component of state and

local democracies. Local journalists serve as government watchdogs; local news informs residents of local

happenings and stimulates political participation; and

local media provides critical channels of communication during crises like the COVID-19 pandemic. The

decline in local media outlets and news coverage over

the past two decades has already taken a toll on state

and local communities. Yet, despite petitioners’ and

their amici’s contention that deregulation is the key to

saving local news, the opposite is true. As the record

before the Commission and now this Court makes

clear, media consolidation has exacerbated the deterioration of local news and negatively impacted states

and localities. And while many have placed hope in

the Internet to fill the role of local news it has proved

to be an imperfect substitute.

ARGUMENT

I. Diverse Local Media Is Critical To State

And Local Governance.

Amici States encompass many diverse communities,

both urban and rural, and they rely on local media to

communicate key information to their residents.

Minority- and female-owned local media companies

are uniquely able to speak to audiences that look and

sound like their owners, whether catering to Spanishspeakers in rural settings like Mississippi or Black

residents in urban areas like the District of Columbia.

Representative ownership and leadership are crucial

to ensuring that these audiences, whether people of

color or women, see and hear themselves on television,

on the radio, and in print. States need all residents

to listen and understand when public health is

threatened, when emergencies strike, and when citizens are called on to vote and hold leadership

accountable. Promoting diverse local media helps

states achieve those goals. It is, in part, for these

reasons that the Third Circuit correctly insisted

that the Commission give media ownership diversity

serious consideration before promulgating its rules.

See Nat’l Assoc. of Broads. v. FCC, 939 F.3d 567, 587

(3d Cir. 2019).

A. Diverse ownership and media voices

are vital to civic awareness and

engagement.

As respondents ably articulate, the FCC has long

recognized the importance of, and remains committed

to, diversity in broadcast services. Resp’ts Br. 4-7; see

Fox Television Stations, Inc. v. FCC, 280 F.3d 1027,

1042 (D.C. Cir.), modified on reh’g, 293 F.3d 537 (D.C.

Cir. 2002) (“In the context of the regulation of

broadcasting, ‘the public interest’ has historically

embraced diversity (as well as localism).”). But diversity in media is not easily achieved or maintained. For

example, employees of color and women are severely

underrepresented at media outlets. Elizabeth Grieco,

Newsroom Employees Are Less Diverse Than U.S.

Workers Overall, Pew Rsch. Ctr. (Nov. 2, 2018).3 Less

than one quarter of newsroom employees are people of

color, compared to roughly 45 percent in all occupations and industries combined. Id. And about 39

percent of newsroom employees are women, compared

to roughly 47 percent of all workers. Id.

Fostering ownership diversity promotes diverse

media. At present, very few broadcast stations are

owned by people of color or women. See Press Release,

FCC News, Commissioner Starks Statement on

Fourth Broadcast Station Ownership Report (Feb. 14,

2020).4 And yet, the few minority- and women-owned

stations that do exist outperform others in employing

diverse workforces. Sydney Ember & Nicholas Fandos,

Pillars of Black Media, Once Vibrant, Now Fighting

for Survival, N.Y. Times (July 2, 2016).5 They also

Available at https://pewrsr.ch/2Kqa9ah.

Available at https://bit.ly/3mkXEd4.

Available at https://nyti.ms/2WCidYp.

both have better track records in appointing both

people of color and women to leadership positions. S.

Derek Turner, Free Press, Off the Dial: Female and

Minority Radio Station Ownership in the United

States 5 (June 2007).6

Diverse leaders and newsrooms are vital to ensuring

that stories in diverse communities receive coverage.

“Several studies have indicated that mainstream

media do not adequately cover African-American

and other minority communities.” Steven Waldman,

Working Grp. on Info. Needs of Cmtys., FCC, The

Information Needs of Communities: The Changing

Media Landscape in a Broadband Age 252 (July

2011).7 For example, one study found that just 1.9

percent of news stories written in a one year period

pertained to Black Americans, in some way, and even

that meager coverage tended to paint a “downbeat

picture.” Id. (internal quotation marks omitted).

Mainstream media also “often underreports issues

such as crimes against minorities.” Cantwell, supra,

at 24. A recent mea culpa by the Kansas City Star, the

nearly 150-year-old local paper in Missouri, highlights

the point. The paper apologized for the “decades

of coverage that depicted Black Kansas Citians as

criminals living in a crime-laden world,” and for giving

“short shrift” to the “achievements, aspirations and

milestones of an entire population.” Mike Fannin, The

Truth in Black and White: An Apology From the

Kansas City Star, Kan. City Star (Dec. 20, 2020).8

Meanwhile, the Star heralded the work of the local

Black press for “chronicl[ing] critical stories [that]

Available at https://bit.ly/3akOxqL.

Available at https://bit.ly/37k6Zhb.

Available at https://bit.ly/3aCRlzH.

the white dailies ignored.” Id. The Reverend Jesse

Jackson once explained succinctly at an FCC hearing:

minority “[r]epresentation is directly tied to

ownership.” Localism Public Hearing in Washington,

D.C., FCC, Tr. 41 (Oct. 31, 2007) (test. of Rev. Jesse L.

Jackson, Sr.).9 “If we don’t own our press,” Leonard

Burnett Jr., the owner of Uptown Magazine told the

New York Times, “we don’t have a platform to speak.”

Ember & Fandos, supra.

Credible coverage of issues affecting diverse communities is also crucial to good governance. As Wade

Henderson, the former President of the Leadership

Conference on Civil and Human Rights, has explained,

“the way the public looks at issues, indeed whether

the public is even aware of issues like fair housing

or voting discrimination . . . is directly related to

the way these issues are covered by the media.”

Localism Public Hearing, FCC, Tr. 37 (test. of Wade

Henderson). Less ownership diversity, Henderson

reasoned, means less coverage of “[i]ssues like economic inclusion, the struggle for quality public education, immigration reform and the prevention of violent

hate crime.” Id. at 35. Henderson gave an example of

media ownership in the District—an urban, predominantly Black community—where, at the time, “[t]wo

companies, News Corporation and NBC GE, together

control[led] over half the television revenues,” and

over half of commercial radio stations were non-locally

owned, which resulted in coverage that did not “reflect

the diversity of th[e] population.” Id. at 36. As a

result, “there [were] few” media outlets “who [could]

speak with authority about their condition in the

community.” Id. at 35. Under these conditions, it may

Available at https://bit.ly/3p7WlQM.

be harder for District leaders to reach the residents

who are in greatest need of accurate local news, and

for residents to hear about the issues and events that

affect them most.

Communities of color tend to be even more dependent on local media than the average population. For

instance, Black Americans are “more likely to be

interested in local news and to trust information from

local news organizations more generally.” Elisa

Shearer, Local News is Playing an Important Role for

Americans During COVID-19 Outbreak, Pew Rsch.

Ctr. (July 2, 2020).10 In fact, Americans living in

communities with particularly high shares of Hispanic

and Black residents “are more likely to say [that] most

key local news topics are important for their daily lives

than those in higher-proportion white areas.” Pew

Rsch. Ctr., For Local News, Americans Embrace Digital but Still Want Strong Community Connection 65

(Mar. 26, 2019).11 This has been especially apparent

during the coronavirus pandemic, in which surveys

show that “Black Americans are more likely than

other adults to turn to local news organizations and to

trust them to get the facts right about COVID-19.

Shearer, supra. Local news thus provides public

health officials a particularly useful channel of communication regarding, among other things, the disproportionate risks posed by the coronavirus for Black

Americans. See Sherita Hill Golden, Coronavirus in

African Americans and Other People of Color, Johns

Hopkins Med. (Apr. 20, 2020).12

Available at https://pewrsr.ch/34bknCr.

Available at https://pewrsr.ch/2WeGbsh.

Available at https://bit.ly/38192pr.

Moreover, residents of lower-income areas, which

strongly correlate with majority-minority communities, see John Creamer, Inequalities Persist Despite

Decline in Poverty For All Major Race and Hispanic

Origin Groups, U.S. Census Bureau (Sept. 15, 2020),13

“are more reliant on TV news and less so on digital

[media],” Pew Rsch. Ctr., For Local News, supra, at 65.

And, for Hispanic immigrants living outside of metro

areas and Native American populations living on

reservations—areas with low broadband penetration—

radio has historically offered an important means

of communicating news. Abernathy, supra, at 44.

Traditional media is thus particularly important to

reaching these minority communities.

Minority-focused media can also drive minority

turnout in elections. For example, researchers found

that Spanish-speaking “Hispanics without access to

local television news are significantly less likely to

participate in elections than Hispanics with access

to news in Spanish.” Felix Obeholzer-Gee & Joel

Waldfogel, Media Markets and Localism: Does Local

News en Español Boost Hispanic Voter Turnout?, 99

Am. Econ. Rev. 2120, 2127 (2009).14 Informed and

active civic participation, including by minority

constituents, is in every state’s best interest.

B. Representative local media is particularly important to states and localities

during emergencies.

As Reverend Jackson put it, media coverage can be

“a life or death issue for communities of color across

the country.” Localism Public Hearing, FCC, Tr. 41

Available at https://bit.ly/34IUPNl.

Available at https://bit.ly/3ab0EXi.

(test. of Rev. Jesse L. Jackson, Sr.). That is, in part,

because local media is often the best source of information during emergencies.

When local media

excludes, for example, language minorities, residents

suffer. As the U.S. Department of Justice has

observed, when individuals who are not proficient in

English are unable to understand states’ instructions

and announcements during emergencies, “the consequences can be deadly.” C.R. Div., U.S. Dep’t of Just.,

Tips and Tools for Reaching Limited English Proficient

Communities in Emergency Preparedness, Response,

and Recovery, at i (2016) [“Tips and Tools”].15

The events surrounding Hurricane Katrina illustrate the point. That storm decimated the city of New

Orleans and surrounding areas, leaving thousands

stranded and without power, housing, or drinkable

water. A Month After Katrina, A Long Road Ahead,

NBC News (Sept. 28, 2005).16 The storm also forced

New Orleans’s sole Spanish-language radio station off

the air, depriving Spanish-only speakers of critical

instructions as to “where and how to seek shelter, and

what precautions to take.” Susan S. Kuo, Speaking in

Tongues: Mandating Multilingual Disaster Warnings

in the Public Interest, 14 Wash & Lee J. C.R. & Soc.

Just. 3, 5-6 (2007).17 Many Vietnamese residents of

the affected areas were also “injured or killed during

the storm and the flooding in its wake because they

could not understand the English-only evacuation

orders.” Id. at 4-5. And the lack of information in

Spanish and Portuguese has been cited as a contributing factor in the death of dozens of Peruvian and

Available at https://bit.ly/3nmPdzj.

Available at https://nbcnews.to/3apIMYB.

Available at https://bit.ly/37xCa8V.

Brazilian immigrants in a Gulfport, Mississippi apartment complex. Brenda Muniz, Nat’l Council of La

Raza, In the Eye of the Storm: How the Government

and Private Response to Hurricane Katrina Failed

Latinos 5 (2006).18

Hurricane Katrina is only one example. The dearth

of multilingual communications hindered community

responses during wildfires in Southern California

in 2007,19 Hurricane Ike in Houston in 2008,20 Superstorm Sandy in New York in 2012,21 and a tornado

in Oklahoma City in 2013.22 Without representative

media, the struggle to reach language minorities

during crises will likely worsen over time.

In addition to the tragic loss of life, a paucity of

multilingual media can strain states’ emergency

resources. The Department of Justice warns that

“[w]hen individuals do not evacuate, find shelter, or

understand how to prevent getting a contagious

Available at https://bit.ly/2LFFaYb.

See U.S. Dep’t of Just. et al., Guidance to State and Local

Governments and Other Federally Assisted Recipients Engaged in

Emergency Preparedness, Response, Mitigation, and Recovery

Activities on Compliance with Title VI of the Civil Rights Act of

1964, at 5 (Aug. 16, 2016), https://bit.ly/3raPVCi.

See Vishnu P. Nepal et al., Off. of Surveillance & Pub.

Health Preparedness, Houston Dep’t of Health & Hum. Servs.,

Understanding Disaster Preparedness of Linguistically Isolated

Groups: Chinese, Somali, Vietnamese and Spanish Speaking

Communities 6 (Nov. 2009), https://bit.ly/3r3rE0H.

See Timeline of the New York City Housing Authority’s

Response, N.Y. Times (Dec. 9, 2012), https://nyti.ms/3aim9Fw.

See Juliana Keeping & Hannah Covington, Oklahoma

Storms: Many Spanish-Speaking Families Struggle to Understand Storm Precautions, Oklahoman (July 14, 2013),

https://bit.ly/3gP0V3e.

disease, emergency response personnel and resources

are further strained to conduct rescue operations or

otherwise remedy avoidable situations.” Tips and

Tools, supra, at i. States therefore have a critical

interest in diverse media that can reach local

communities in times of need. Given the stakes,

the Third Circuit justifiably insisted that the FCC

examine the issue of ownership diversity carefully

before taking action that could damage the local media

ecosystem—a system on which states, localities, and

citizens alike rely.

II. Industry Petitioners’ Interpretation Of

Section 202(h) Would Diminish The FCC’s

Power To Promote Localism, To The Detriment Of State And Local Governments.

A. Industry Petitioners’ position threatens

localism.

“As with competition and diversity, localism has

been a cornerstone of broadcast regulation for decades.” Broadcast Localism, 19 FCC Rcd. at 12,425.

Embracing localism—the idea that licensed broadcast

media outlets serve the “interests and needs of their

communities of license,” id.—is critical for the healthy

functioning of state democracies. Accordingly, along

with diversity, localism has long served as a component of the FCC’s interpretation of the “public interest” within the text of Section 202(h). 47 U.S.C § 303

note; see FCC Br. 5; 2002 Biennial Regulatory Review,

18 FCC Rcd. 13,620, 13,627 (July 2, 2003).

Industry Petitioners take the position, however,

that “Section 202(h) requires the Commission to

assess its ownership rules in light of one factor and one

factor only: ‘competition,’ not the effect of its rules on

minority and female ownership.” Industry Pet’rs Br.

24-25. Industry Petitioners’ reading, if adopted, would

not only undermine the Commission’s efforts to bolster

diversity, but it would also prevent the FCC from

“fostering localism,” one of the “core missions” that has

“driven much of [the Commission’s] radio and television broadcast regulation during the last 70 years.”

Broadcast Localism, 19 FCC Rcd. at 12,445 (Statement of FCC Chairman Michael K. Powell).

1. Industry Petitioners’ reading of Section 202(h)—

which contradicts the Commission’s own interpretation, see FCC Br. 33—ignores key provisions of the

text. Industry Petitioners state that “the FCC’s mandate under Section 202(h) is limited to reviewing

whether its ownership rules remain necessary in light

of competition in the media marketplace.” Industry

Pet’rs Br. 25. This reading blatantly ignores the term

“public interest,” which the statute twice directs the

Commission to consider. Section 202(h) mandates

that the Commission “shall determine whether any of

such rules are necessary in the public interest as the

result of competition” and “shall repeal or modify any

regulation it determines to be no longer in the public

interest.” Telecommunications Act of 1996, § 202(h),

47 U.S.C. § 303 note. The statute’s mention of “the

public interest” is no accident, as it appears “over 100

times in the communications law.” Public Interest and

Localism: Hearing Before the S. Comm. on Com.,

Sci., and Transp., 108th Cong. 7-8 (2003) (statement

of FCC Comm’r Michael Copps);23 see id. (“I take

Congress seriously when they tell me something once.

When they tell me 112 times, I stand at attention.”).

As this Court has “stated time and again[,] . . .

courts must presume that a legislature says in a stat23

Available at https://bit.ly/3oS7KEg.

ute what it means and means in a statute what it says

there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992). And “[i]t is a cardinal principle of

statutory construction that a statute ought, upon the

whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void,

or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19,

31 (2001) (internal quotation marks omitted). The

Court should therefore reject Industry Petitioners’

construction, which reads the term “public interest”

out of the statute.

2. Beyond being wrong as a matter of statutory

construction, Industry Petitioners’ position would not

only eviscerate the FCC’s commitment to diversity, it

would also kneecap the Commission’s commitment to

localism. Like promoting diversity, fostering localism

enters the FCC’s quadrennial review through the term

“public interest.” Telecommunications Act of 1996,

§ 202(h), 47 U.S.C. § 303 note. Without the discretion

to consider localism as part of the public interest,

the Commission would be unable to enact or maintain

ownership regulations to promote and safeguard local

news. The Commission would thus be without power

to consider the fact that, as described below, robust

local news stimulates voter turnout and decreases

polarization; that local journalists serve as critical

watchdogs over government officials and spending; or

that, in times of natural disasters or once-in-a-century

pandemics, local broadcasters can literally save lives.

B. Local news plays a crucial role in state

and local democracies.

Americans have a unique relationship with local

news. For one, local television “remains Americans’

most popular source of local news and information.”

JA 237 (2016 Order, 31 FCC Rcd. 9864 (Aug. 25,

2016)). Survey after survey shows that Americans

trust their local news broadcasters and journalists.

See Cantwell, supra, at 7 (“76 percent of Americans

have ‘a great deal’ or ‘a fair amount’ of trust in their

local television news, and 73 percent have confidence

in local newspapers.”). This remains true during the

current pandemic, when Americans from cities, suburbs, and rural areas alike have rated local broadcast

TV as the most trustworthy medium for coronavirus

coverage. Hadassa Gerber, 2020 Coronavirus Media

Usage Study, Television Bureau of Advert. (Apr.

2020).24 Most Americans consider their local news

unbiased (66 percent, compared to 31 percent who consider national news organizations to report “without

bias”), and an overwhelming percentage believe it is at

least somewhat important that local journalists be

personally tied to the local community. Cantwell,

supra, at 7. That said, Americans recognize that their

local news is often not local—nearly half of Americans

report that their local news media covers an area other

than where they live. Pew Rsch. Ctr., For Local News,

supra, at 5. Meanwhile, Americans appear to have

little concept of the economic strain faced by their local

media outlets: more than two-thirds think that local

news media are doing either somewhat or very well

financially. Id. at 36-37.

As the Amici States and their residents have

experienced, local news plays an important role in the

fabric of our nation’s democracy. States and localities

rely on local news to inform and engage voters, and

to hold public officials accountable. Accordingly, the

disappearance of local news media has already

begun to take a toll. And, contrary to what Industry

Available at https://bit.ly/3mkE3d2.

Petitioners’ and their amici argue, the increased

consolidation of local media has further exacerbated

those harms. See infra, Subpart C. Meanwhile,

although many have expressed hope that the Internet

can fill the gaps left by local media outlets, it is clearly

failing to do so. See infra, Subpart D.

1. Local journalists have long served as the watchdogs of both state and local government. Take the

case of the Todd County Standard, a roughly 2,300circulation paper based in Elkton, Kentucky, which

“blew open” the Kentucky Cabinet for Health and

Family Services “for the management of its foster care

system after a child in its custody was murdered.”

Mary Ellen Klas, Less Local News Means Less Democracy, Nieman Reps. (Sept. 20, 2019).25 Or WJLA, a

local broadcast station in Washington, D.C., which

exposed a chain of dental clinics that were performing

unnecessary dental operations on children in order

to collect money from Medicaid. See Roberta Baskin,

Revealing How Dentists Profit by Abusing Children,

Nieman Reps. (Mar. 23, 2009).26

Often, news reports lead to government action. For

example, in Louisville, Kentucky, local station WHAS

investigated allegations of sexual conduct between

prison guards and inmates, and the resulting segment

led to a new state law. Waldman, supra, at 83. In

Houston, Texas, KHOU conducted a two-year investigation of the Texas National Guard, which started by

looking into allegations of harassment and discrimination against female officers and ended up unearthing

corruption and misappropriation of funds. Id. The

Available at https://bit.ly/2Wcv8jt.

Available at https://bit.ly/382tKFF.

reporting led the Governor to relieve numerous

National Guard officers of their command. Id.

Local news also stimulates civic engagement and

political participation. People who “pay more attention to local news” find themselves “more confident in

their knowledge about aspects of their local communities, local politics and engagement.” Gallup & Knight

Found., American Views 2020: Trust, Media and

Democracy 43 (Nov. 9, 2020).27 Those who closely

follow local news are also more than twice as likely as

those who do not to “always” or “nearly always” vote in

local elections. Id. at 44 (“75% versus 33%, respectively”). This evidence reinforces the “central tenet of

democratic theory . . . that an informed and engaged

polity improves representation and lends greater

legitimacy to the political system.” Danny Hayes &

Jennifer L. Lawless, The Decline of Local News and Its

Effects: New Evidence from Longitudinal Data, 80 J.

of Politics 332, 333 (2018);28 see Erin M. Simpson,

Nation Without Place: Does Local News Decline Cause

Democratic Dysfunction in the Contemporary United

States? 4, 40-41 (June 2019) (MRes thesis, U. Oxford)

(documenting the effect of local media outlet closure

on “decreas[ing] political participation” in elections).29

As noted above, supra Part I.B., local news also

provides public officials a critical channel of communication with residents. As the FCC Working Group

on Information Needs of Communities once observed,

“[d]uring emergencies, the local TV station is often

considered to be as vital a part of the local community

as the police and fire departments.” Waldman, supra,

Available at https://kng.ht/2LBRgBK.

Available at https://bit.ly/3mhtqYz.

Available at https://bit.ly/2WbyiUC.

at 79. Local media has accordingly proven indispensable during the coronavirus pandemic. Local news has

helped inform Americans about “community spread

and local hot spots,” “[b]usiness opening decisions

and regulations,” “[l]ocal public health directives,”

“[s]chool health codes” and closures, and “[l]ocal employment opportunities.” Cantwell, supra, at 10. In

fact, the role of local news has been so crucial during

the pandemic that nearly 60 percent of Americans

have “reported consuming more local news than before

the COVID-19 crisis.” Id. at 8. This is no doubt in part

because Americans “see local news outlets as more

credible sources of COVID-19 information than the

news media in general.” Shearer, supra.

2. And yet, while the pandemic has pushed many

Americans to rely more heavily on local news, the

ensuing recession has accelerated the pace at which

local media outlets have folded. Abernathy, supra, at

5. Already before the pandemic, “[h]undreds of news

organizations . . . ha[d] vanished,” “leaving residents

in thousands of communities . . . living in,” what one

journalism professor calls “news deserts.” Id. at 8.

These news deserts appear all across the country, but

they disproportionately occur in rural areas—68 percent of U.S. counties without a daily or weekly

newspaper are rural. Clara Hendrickson, Critical in a

Public Health Crisis, COVID-19 Has Hit Local Newsrooms Hard, Brookings (Apr. 8, 2020).30 And those

media outlets that remain have been forced to cut

personnel and coverage, becoming “mere ‘ghosts,’ or

shells of their former selves.” Abernathy, supra, at 8;

see, e.g., Waldman, supra, at 86 (“[T]he amount of in-

Available at https://brook.gs/3nnKBJb.

depth accountability journalism on many local TV

newscasts has been declining for a while.”).

This decline affects reporting on state and local

government operations. As state government spending rose from 2003 to 2008, “the number of statehouse

reporters dropped by one-third.” Waldman, supra, at

11; see id. (“In New Jersey, the number of statehouse

reporters dropped from 35 to 15. In California[,] it fell

from 40 to 29; in Texas, from 28 to 18; and in Georgia,

from 14 to 5.”). In addition to decreased state-level

reporting, local government issues have been getting

short shrift. A study of Los Angeles newscasts in 2009

“found that stories about local civic issues . . . like

transportation, community health, the environment,

education, taxes, activism, and fundraisers took up

one minute and 16 seconds of the monitored half-hour

broadcasts.” Id. at 84. And these local government

stories “led the newscasts only 2.5 percent of the time.”

Id.

The reduction in coverage of state and local issues

has had a negative effect on the accountability of state

and local governments. “[W]hen newspapers close or

reduce their news coverage, the loss of government

oversight can substantially increase the cost of local

government, increase taxes, and reduce government

efficiency and civic engagement.” Cantwell, supra, at

11. Indeed, several finance professors have demonstrated that the closure of local newspapers leads to

an increase in the costs of municipal borrowing within

a few years, for two primary reasons. Pengjie Gao

et al., Financing Dies in Darkness? The Impact of

Newspaper Closures on Public Finance, 135 J. of Fin.

Econ. 445, 446 (2020).31 First, municipal governments

Available at https://bit.ly/3mmrT3o.

become less efficient in the absence of a media

watchdog. Id. at 447. Second, the higher cost of borrowing compensates for lenders’ relative lack of information about localities resulting from the reduction in

press coverage. Id.

The case of Bell, California illustrates how a reduction in local reporting can lead to exorbitant government spending. Robert Rizzo was hired as the

Bell town manager in 1993 with a starting salary

of $72,000. Id. at 449. By 2010, however, Rizzo owned

“a beachfront mansion and a ten-acre horse ranch

outside of Seattle.” Id. Reporters from the Los

Angeles Times caught on after 17 years and discovered

that Rizzo was earning $787,637 per year, a roughly

$42,000 annual increase year-over-year from his starting salary. Id. In the end, local prosecutors charged

Rizzo and other Bell officials with stealing $5.5 million

in public funds, id., but as an FCC working group put

it, “if a reporter earning $50,000 had been regularly

covering the city council, and salaries of those officials

had therefore remained at the level of most other

elected officials, taxpayers would have saved millions

of dollars,” Waldman, supra, at 246.

Finally, numerous studies have also demonstrated

that “the loss of local news coverage in many areas

may be a factor in Americans’ current level of political

polarization.” Gallup & Knight Found., supra, at 48.

According to one Oxford researcher, “local newspaper

closure[s] drive[] polarizing effects—both in terms

of concentration of party support and ideology.”

Simpson, supra, at 55. “As newspapers close, other

local media are not emerging to fill the information

gaps,” which are often filled by “more extreme, partisan, and polarizing [national] news.” Joshua P. Darr

et al., Newspaper Closures Polarize Voting Behavior,

68 J. of Commc’n 1007, 1007-08 (2018).32 Such polarization makes state, local, and national governance

more difficult. And it erodes voters’ ability to focus on

the platforms of state and local officials, which often

have more to do with the nuances of local conditions

than the politics of national parties.

C. Consolidation of local media ownership

has contributed to the deleterious effects

of vanishing local news.

Large station owners, including petitioners’ amici,

argue that their strategy of purchasing multiple

local news outlets in a single market allows them

“to increase efficiency and profitability” and thereby

aid local news. Gray Television, Inc. Amicus Br.

24 (“Gray Amicus Br.”). Cooperative arrangements—

either through common ownership or contractual

agreements—enable stations to share resources and

reduce overhead costs. But that is not all that they

share. “Increasingly, cooperative news services are

not only sharing” production equipment, technical

resources, or “footage from official events but also

interviews, so stories on three different stations might

feature the same newsmaker interview.” Waldman,

supra, at 98. These types of cooperative arrangements, and especially conglomerate ownership, undermine the key qualities of local newsgathering.

One serious problem with consolidation of local

news is the lack of transparency. Local news, and

quality journalism in general, is built on trust, which

requires basic information about who owns, produces,

and delivers the news. As large conglomerates

consolidate more and more local news outlets, “it has

Available at https://bit.ly/3h7YJ72.

become harder and harder to discern the financial and

journalism priorities of local newspapers or to hold

them accountable.” Abernathy, supra, at 36. And,

even worse, large station owners often obfuscate that

information intentionally. Stations might, for instance,

hold out reporters as “local talent,” when they are

actually delivering news from across the country. At

one point, for example, WLTZ in Columbus, Georgia

listed anchors as “part of its local news team,” even

though those individuals broadcast from Iowa as

part of a content-sharing agreement to which WLTZ

subscribed. Waldman, supra, at 97.

Additionally, the “efficien[cies]” that Industry

Petitioners and their amici tout is code for less

competition among news outlets in local markets and,

often, lower quality products. Industry Pet’rs 9; ABC

Television Affiliates Assoc. et al. Amici Br. 12; Gray

Amicus Br. 24. The “business strategy” of purchasing

multiple local stations, Gray Amicus Br. 24, simply

“allow[s] companies to cut costs by consolidating

newsrooms that may have once competed against each

other—creating a uniformity of news coverage and,

critics fear, diminishing the watchdog power of local

media,” Paul Farhi et al., In This Town, You Can Flip

the Channel All You Want—The News Is Often the

Same, Wash. Post (June 14, 2018).33 On the record

now before this Court, the FCC previously arrived at

the same conclusion: “Competition within a local

market motivates a broadcast television station to

invest in better programming and to provide

programming tailored to the needs and interests of

the local community in order to gain market share.”

JA 123.

Available at https://wapo.st/2LBREAc.

Lack of local competition can have jarring effects.

Consider the case of Johnstown, Pennsylvania, where

“[n]ews stories broadcast on WJAC, the NBC affiliate

in town, have appeared on nearby station WATM, the

ABC affiliate. And many of those stories are broadcast

on WWCP, the Fox station [t]here, as well.” Farhi,

supra. Inside a single studio, there are different sets

equipped with backdrops for the different stations. Id.

The same cast of anchors and reporters shift over to

the appropriate backdrop when it is time to broadcast

the news on that channel. Meanwhile, “there is little

public acknowledgment of the relationship between

the three stations—not even their websites clearly

promote the connections to one another.” Id. Such

deception undermines trust in this purportedly local

media. That, unfortunately, is the “trend that has

spread across the country, as a small number of large

holding companies are taking over local TV stations,

often more than one in the same market.” Id.

Consolidation and joint operating agreements also

lead to less and less quality local news coverage and

more recycled content. Residents of Rapid City, South

Dakota noticed this trend when two stations owned by

one of petitioners’ amici, Gray Television, Inc., aired

the “same interview with the same real estate agent

about a mall’s shuttered stores.” Id. Youngstown,

Ohio residents similarly may have noted that two

stations owned by Industry Petitioner Nexstar, Inc.

“recently aired identical segments about a councilman’s outburst.” Id.

Residents of Honolulu, Hawaii are also aware of this

trend. Until 2009, four local television stations each

produced their own news and programming. That

year, a single production company, Hawaii News Now

(currently owned by Gray Television), began airing the

exact same local news programming on two stations

and producing content for a third. Suppl. App. at 3537, Prometheus Radio Proj. v. FCC, No. 17-1107 (3d

Cir. Apr. 12, 2019) (Decl. of Christopher Conybeare).

Honolulu’s two daily newspapers then merged to form

the Honolulu Star-Advertiser, which entered into an

exclusive content-sharing agreement with Hawaii

News Now. Id. at 36. A study of the 2012 elections

found that Hawaii News Now “rarely addressed issues

in the races for the state legislature or city or county

councils.” Id. at 37. A local media leader explained

in a declaration before the Third Circuit that, “[a]s a

result of these transactions, the diversity, coverage,

depth and quality of local news in Honolulu has

significantly diminished.” Id. at 36-37. Indeed, states

inevitably suffer when quality, local journalism

declines.

In a more recent example, Industry Petitioner

Sinclair Broadcast Group, Inc., a telecommunications

conglomerate, faced immense criticism when it

ordered news anchors at dozens of its affiliates to read

an identical, ideologically charged script. See Timothy

Burke, How America’s Largest Local TV Owner Turned

Its News Anchors into Soldiers in Trump’s War on the

Media, Deadspin (Mar. 31, 2018) (depicting dozens of

news anchors delivering the same speech on “the

troubling trend of irresponsible, one sided news stories

plaguing our country”).34 Political scientists studying

newscasts at hundreds of stations have found that

“Sinclair typically rolls back coverage of local politics

when it buys a station.” Farhi et al., supra. Local

issues then receive short shrift, to states’ and residents’ detriment.

Available at https://bit.ly/3mgjCOt.

Cooperative newsgathering is not always bad. But

where stations repackage the same programming

and news stories, often without admitting to doing so,

Americans are harmed by the lack of transparency and

competition. Such developments mean “fewer sources

of independent reporting about government, civic

affairs, economic development and crime.” Id.

D. The Internet has not proved an adequate substitute for declining local

media.

Unfortunately, none of the negative effects caused

by the loss of local media have been counteracted by

the rise in online media outlets. As one researcher put

it, “although [Americans] now operate in a high-choice

media environment overall, they are simultaneously

faced with a low-or-no choice local media environment.” Simpson, supra, at 1. Although the Internet

has facilitated a proliferation of, on the one hand,

national news and, on the other, personal content

sharing, “[i]t is as if the media system has lost a part

of its connective tissue—a middle local layer bridging”

the national and the personal—“resulting in a

delocalized media ecosystem.” Id. at 2.

In its 2016 Order, the FCC observed that “[w]hile we

recognize the popularity of video programming delivered via . . . the Internet, and mobile devices, we find

that competition from such video programming providers remains of limited relevance for the purposes of

our analysis.” JA 124. This is in part because,

“[u]nlike local broadcast stations, [Internet video] providers are not likely to make programming decisions

based on conditions or preferences in local markets.”

JA 124. Also troubling is the fact that around 10

percent of the U.S. population “lack[s] broadband

access at speeds sufficient to stream or download video

programming available via the Internet,” so local

broadcasting remains a critical source of news for

these Americans. JA 127-28. Therefore, while online

content “may offer [some] consumers additional programming options in general, they do not serve as a

meaningful substitute in local markets.” JA 124.

Even the online effort to directly replace disappearing local news outlets has fallen flat. See JA 236 (Even

“local, hyperlocal, and niche websites generally do not

fill the role of local television stations or daily

newspapers.”). Take the example of the DC Business

Daily: despite looking like a local business-focused

publication covering Washington, D.C., the site actually belongs to a network of “Business Dailies” with

nearly identical publications in every state. See

Homepage, DC Business Daily.35 The network’s various Dailies are so cookie-cutter that the DC Business

Daily’s “About Us” section declares that its “mission is

to be a key source of information about our state’s

business climate” and to “provide important data

and facts about the state’s economy.” About Us

Washington D.C. Business Daily, DC Business Daily

(emphases added).36 Meanwhile, the site’s writers are

clearly not local, as their articles appear on numerous

states’ “Business Dailies.” Compare Trina Thomas,

Equinix Expands to Washington, D.C., DC Business

Daily (Nov. 24, 2020),37 with, e.g., Trina Thomas,

Genuine Parts to Launch Lebanon Location, Tenn.

Available at https://bit.ly/37g99OU (last visited Dec. 22,

2020).

Available at https://bit.ly/2JUWpVa (last visited Dec. 22,

2020).

Available at https://bit.ly/34nMeiG.

Business Daily (Nov. 26, 2020);38 Trina Thomas,

POLYWOOD Expands Production Site to Syracuse,

Ind. Business Daily (Nov. 30, 2020).39

An investigation by the New York Times unearthed

“a fast-growing network of nearly 1,300 websites that

aim to fill a void left by vanishing local newspapers

across the country.” Davey Alba & Jack Nicas, As

Local News Dies, a Pay-for-Play Network Rises in Its

Place, N.Y. Times (Oct. 20, 2020).40 But these sites

hardly substitute for local news. Instead, the network

generates “propaganda ordered up by . . . political

operatives, corporate executives and public-relations

professionals.” Id. The network’s “sites appear as

ordinary local-news outlets, with names like Des

Moines Sun, Ann Arbor Times and Empire State

Today” and they purposefully present “articles about

local politics, community happenings and sometimes

national issues, much like any local newspaper.” Id.

But the New York Times found that, “behind the

scenes, many of the stories are directed by political

groups and corporate P.R. firms to promote” certain

candidates or companies, or smear rivals. Id. That

said, the sites hide their partisan financial ties—

“[m]ost of the sites declare in their ‘About’ pages that

they aim ‘to provide objective, data-driven information

without political bias.’” Id.

This network has also bought up and ruined existing

local news outlets, like the Mount Vernon News, a

local paper in Mount Vernon, Ohio. Id. After purchasing Mount Vernon News, its new owners fired much of

the paper’s staff, employed an Atlanta-based writer to

Available at https://bit.ly/2Wgg1p2.

Available at https://bit.ly/34eFofv.

Available at https://nyti.ms/2JUWmIY.

cover local happenings, and abdicated responsibility

for covering local events, like “[w]hen a water line

broke . . . , forcing the town’s residents to boil their

water.” Id.

The Chicago Tribune’s attempt to staff 90 websites

and 22 weekly print editions covering small towns

around Chicago with just 18 reporters also proved a

cautionary tale. Sarah Koenig, 468: Switcheroo, Act

II: Forgive Us Our Press Passes, This Am. Life

(June 29, 2012).41 Under that system, “[m]ajor news

stories . . . [were] completely ignored,” and many of the

sites were populated with nothing but “press releases,

computer generated junk, and of course ads.” Id.

These examples illustrate the point that research

has consistently demonstrated: the Internet has not

solved the problems caused by the loss of local news.

See Gao, supra, at 447 (“[A]lternative sources of

media, such as the internet, are not acting as sufficient

substitutes for these local [media].”); Simpson, supra,

at 2; Waldman, supra, at 231.

* * *

Accordingly, states, localities, and their residents

must rely on the FCC to continue to promote localism

and safeguard diverse media ownership. Industry

Petitioners’ position, however, would read these public

interest obligations out of the statute—and ignores the

reality that consolidation and the ever-expanding

Internet cannot replace true local media and the civic

good it promotes.

Available at https://bit.ly/3qVvklg.

CONCLUSION

This Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

KARL A. RACINE

Attorney General for the

District of Columbia

LOREN L. ALIKHAN

Solicitor General

Counsel of Record

CAROLINE S. VAN ZILE

Principal Deputy

Solicitor General

CARL J. SCHIFFERLE

Deputy Solicitor General

SAMSON J. SCHATZ

Assistant Attorney General

D.C. OFFICE OF THE

ATTORNEY GENERAL

400 6th Street, NW

Suite 8100

Washington, D.C. 20001

(202) 727-6287

loren.alikhan@dc.gov

December 2020

Counsel for Amici Curiae

On behalf of:

XAVIER BECERRA

Attorney General

State of California

PHILIP J. WEISER

Attorney General

State of Colorado

WILLIAM TONG

Attorney General

State of Connecticut

KATHLEEN JENNINGS

Attorney General

State of Delaware

CLARE E. CONNORS

Attorney General

State of Hawaii

KWAME RAOUL

Attorney General

State of Illinois

AARON M. FREY

Attorney General

State of Maine

BRIAN E. FROSH

Attorney General

State of Maryland

MAURA HEALEY

Attorney General

Commonwealth of

Massachusetts

DANA NESSEL

Attorney General

State of Michigan

KEITH ELLISON

Attorney General

State of Minnesota

AARON D. FORD

Attorney General

State of Nevada

GURBIR S. GREWAL

Attorney General

State of New Jersey

HECTOR BALDERAS

Attorney General

State of New Mexico

LETITIA JAMES

Attorney General

State of New York

JOSHUA H. STEIN

Attorney General

State of North Carolina

ELLEN F. ROSENBLUM

Attorney General

State of Oregon

JOSH SHAPIRO

Attorney General

Commonwealth of

Pennsylvania

PETER F. NERONHA

Attorney General

State of Rhode Island

THOMAS J. DONOVAN, JR.

Attorney General

State of Vermont

MARK R. HERRING

Attorney General

Commonwealth of Virginia

ROBERT W. FERGUSON

Attorney General

State of Washington

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.