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 AND

UNITED STATES OF AMERICA,

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 AMICI CURIAE OF

FORMER FCC COMMISSIONERS IN

SUPPORT OF RESPONDENTS

Christopher J. Wright

Counsel of Record

Stephanie S. Weiner

Grace H. Wynn

HARRIS, WILTSHIRE &

GRANNIS LLP

1919 M Street NW, Fl. 8

Washington, DC 20036

(202) 730-1300

cwright@hwglaw.com

DECEMBER 23, 2020

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................3

ARGUMENT ...............................................................7

I. THE COMMISSION HAS LONG HELD THAT

THE PUBLIC INTEREST IS SERVED BY

PROMOTING MEDIA DIVERSITY—

INCLUDING MINORITY AND FEMALE

OWNERSHIP.............................................................7

A. Diversity Considerations Have

Always

Been a Bedrock of the Commission’s Public

Interest Mandate. ...........................................9

B. By 1996, Minority and Female Ownership

Was an Unambiguous, Independent, and

Established Component of the Public

Interest Mandate. ............................................ 12

C. Section 202(h) Did Not Alter the

Commission’s View that the Public Interest

Is Served by Diversity, Including Minority

and Female Ownership. .................................. 19

II. THE THIRD CIRCUIT CORRECTLY HELD

THE COMMISSION ACCOUNTABLE FOR

FAILING TO CONSIDER IMPORTANT

ASPECTS OF MEDIA OWNERSHIP. .............. 25

CONCLUSION ..........................................................31

ii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995)............................................. 5, 21

Associated Press v. United States,

326 U.S. 1 (1945) .................................................1, 4

Citizens Communications Center v. FCC,

447 F.2d 1201 (D.C. Cir. 1971). .................. 12, 13, 14

FCC v. National Citizens Committee

for Broadcasting,

436 U.S. 775 (1978)............................... 26, 27, 29, 30

FCC v. WNCN Listeners Guild,

450 U.S. 582 (1981)........................................... 26, 27

Fox Television Stations, Inc. v. FCC,

280 F.3d 1027 (D.C. Cir. 2002) ...............................20

Garrett v. FCC,

513 F.2d 1056 (D.C. Cir. 1975) ...............................17

Metro Broadcasting, Inc. v. FCC,

497 U.S. 547 (1990)....................................... 5, 14, 17

Motor Vehicle Manufacturers Ass'n

of the U.S. v. State Farm Mutual

Automobile Insurance Co.,

463 U.S. 29 (1983)............................................. 25, 30

NAACP v. Federal Power Commission,

425 U.S. 662 (1976).................................................10

National Broadcasting Co. v. United States,

319 U.S. 190 (1943)........................................... 26, 27

iii

Office of Communication of the United

Church of Christ v. FCC,

359 F.2d 994 (D.C. Cir. 1966).................................10

Prometheus Radio Project v. FCC,

939 F.3d 567 (3d Cir. 2019) .......... 3, 7, 25, 27, 28, 29

TV 9, Inc. v. FCC,

495 F.2d 929 (D.C. Cir. 1973) ..................... 13, 14, 16

West Michigan Broadcasting Co. v. FCC,

735 F.2d 601 (D.C. Cir. 1984)................. 5, 15, 16, 17

Statutes

47 U.S.C. § 303(f).........................................................3

47 U.S.C. § 309(a) ........................................................3

47 U.S.C. § 309(i)(3)(A) .........................................5, 15

47 U.S.C. § 309(j)(4)(D) ..................................... 2, 5, 18

5 U.S.C. § 706(2) ........................................................25

Pub. L. No. 100-202,

101 Stat. 1329 (1987) .......................................... 5, 18

Pub. L. No. 104-104, § 202(h),

110 Stat. 56 (1996) ............................. 2, 5, 19, 20, 22

Administrative Decisions

1998 Biennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules

& Other Rules Adopted Pursuant to Section

202 of the Telecomms. Act of 1996,

Biennial Review Report,

15 FCC Rcd. 11,058 (2000) .......................... 9, 22, 23

iv

2002 Biennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules &

Other Rules Adopted Pursuant to Section

202 of the Telecomms. Act of 1996, Report

& Order, 18 FCC Rcd. 13,620 (2003) ................ 4, 23

2006 Quadrennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules &

Other Rules Adopted Pursuant to Section 202

of the Telecomms. Act of 1996, Report & Order,

23 FCC Rcd. 2010 (2008) .......................................23

2014 Quadrennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules &

Other Rules Adopted Pursuant to Section 202

of the Telecomms. Act of 1996,

Order on Reconsideration,

32 FCC Rcd. 9802 (2017) ............................. 7, 24, 28

2014 Quadrennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules

& Other Rules Adopted Pursuant to

Section 202 of the Telecomms. Act of 1996,

Second Report & Order,

31 FCC Rcd. 9864 (2016) ........................... 23, 24, 27

Amendment of Sections 3.35, 3.240 & 3.636

of the Rules & Regulations Relating to

Multiple Ownership of AM, FM & Television

Broad. Stations, Report & Order,

18 F.C.C. 288 (1953) .......................................... 9, 10

Amendment of the Comm’n’s Rules to Allow the

Selection from Among Certain Competing

Applications Using Random Selection or

Lotteries Instead of Comparative Hearings,

Second Report & Order,

93 F.C.C.2d 952 (1983) ..........................................16

v

Application of Time-Life Broad., Inc. for

Renewal of License of KLZ-TV, Denver, Colo.,

Memorandum Opinion & Order,

33 F.C.C.2d 1081 (1972) ........................................12

Policies & Rules Regarding Minority & Female

Ownership of Mass Media Facilities,

Notice of Proposed Rulemaking,

10 FCC Rcd. 2788 (1995) ............................. 4, 18, 19

Policy Statement on Comparative Broad.

Hearings, Public Notice,

1 F.C.C.2d 393 (1965) ............................................15

Primer on Ascertainment of Cmty. Problems by

Broad. Applicants, Part i, Sections IV-A &

IV-B of FCC Forms, Report & Order,

27 F.C.C.2d 650 (1971) ....................................11, 12

Statement of Policy on Minority Ownership of

Broad. Facilities, Public Notice,

68 F.C.C.2d 979 (1978) ....................................14, 15

Other References

FCC Minority Ownership Task Force, Report on

Minority Ownership in Broadcasting (1978) ........14

FCC, Report on Public Service Responsibility of

Broadcast Licensees (1946) ......................................9

Nat’l Advisory Comm’n on Civil Disorders,

The Kerner Report

(Princeton Univ. Press 2016) (1968) .....................11

S. Rep. No. 100-182 (1987) ........................................18

1

INTEREST OF AMICI CURIAE1

Amici are all proud to have previously served the

country as Chairs or Commissioners of the Federal

Communications Commission: Chairman Newton

Minow (1961-1963); Commissioner Nicholas Johnson

(1966-1973); Commissioner Tyrone Brown (19771981); Chairman Reed Hundt (1993-1997); Chairman

William Kennard (1997-2001); Commissioner Gloria

Tristani (1997-2001); Commissioner Jonathan

Adelstein (2002-2009); Chairman Julius Genachowski

(2009-2013); and Chairman Tom Wheeler (20132017).

In the aggregate, our service includes time at the

Commission during each of the last six decades—from

the 1960s into the twenty-first century. We each

recognized the public interest standard as the

lodestar of the broadcasting provisions of the

Communications Act. We understood the importance

of exercising that standard consistent with

fundamental democratic principles to ensure the

“widest possible dissemination of information from

diverse and antagonistic sources.” Associated Press v.

United States, 326 U.S. 1, 20 (1945). Fostering

viewpoint diversity thereby promoted our nation’s

First Amendment values. We further understood that

ensuring diverse broadcast ownership, including

1 No counsel for any party authored this brief in whole or in part,

and no person or entity other than amici and their counsel made

a monetary contribution to the preparation or submission of this

brief. Counsel of record for all parties have provided consent to

the filing of this amici curiae brief.

2

ownership by women and members of minority

groups, is important to achieving that goal.

Over the years, the Commission has continuously

maintained such an understanding of the public

interest, up to and including the present day.

Congress both shared the Commission’s view and

reinforced it. For example, three years prior to the

enactment of the statutory provision at the center of

this case, Pub. L. No. 104-104, § 202(h), 110 Stat. 56

(1996) (“Section 202(h)”), Congress directed the

Commission to ensure, while adopting rules to use

auctions to distribute spectrum licenses, that

“businesses owned by members of minority groups

and women are given the opportunity to participate in

the provision of spectrum-based services . . . .”

47 U.S.C. § 309(j)(4)(D). In short, during our collective

tenure, the Commission and Congress considered

minority and female ownership to be a central

component of the public interest standard.

Accordingly, the Industry Petitioners’ claims to the

contrary deeply trouble us. For example, they claim

that “[h]istorically, . . . the Commission interpreted

the public interest—in the specific context of

structural ownership rules—to include competition,

localism, and viewpoint diversity, not minority and

female ownership.” Indus. Pet’rs’ Br. at 20 (emphasis

in original). That is simply incorrect. Similarly, the

claim that the Third Circuit’s decision in this case

followed from “judge-made policy concerns” is equally

incorrect. Id. at 21. Each of us understood the

Commission, often at Congress’s direction, to be

obligated to ascertain the effect of its rules on

ownership by women and minorities. Congress

3

enacted Section 202(h) against that backdrop, and we

continually interpreted the references to the public

interest in Section 202(h) to require such an inquiry.

Amici have substantial experience with judicial

review of the agency’s rulemaking processes. We are

also well aware of the expertise that the Commission,

through its members and in particular its

multifaceted, cross-disciplinary staff, brings to

exercising its congressionally mandated tasks. We are

also deeply familiar with the exacting statutory

requirement to engage in reasoned analysis leading to

each and every rulemaking. It is therefore with some

disappointment that we find ourselves agreeing with

the Third Circuit here. In finding no harm from its

relaxation of media ownership rules, the

Commission’s analysis was “so insubstantial that it

would receive a failing grade in any introductory

statistics class.” Prometheus Radio Project v. FCC,

939 F.3d 567, 586 (3d Cir. 2019) (“Prometheus IV”);

Indus. Pet’rs’ App. at 38a. The importance of the

questions presented here and our experience together

motivate us to express our views.

INTRODUCTION AND

SUMMARY OF ARGUMENT

I. For more than 85 years, Congress has mandated

that the Commission regulate broadcasters in the

public interest. See, e.g., 47 U.S.C. §§ 303(f), 309(a).

Throughout the intervening decades, in accordance

with direction from both the courts and Congress, the

Commission has continuously exercised its public

interest authority to advance our nation’s core First

Amendment principles, including by ensuring that

4

broadcasters be “diverse and antagonistic.” Associated

Press, 326 U.S. at 20.

In so doing, the Commission has long held that the

public interest is served by promoting media

diversity, including minority and female media

ownership—both as a catalyst for other forms of

diversity and as a diversity objective in its own right.

See, e.g., 2002 Biennial Regulatory Review—Review of

the Comm’n’s Broad. Ownership Rules & Other Rules

Adopted Pursuant to Section 202 of the Telecomms.

Act of 1996, Report & Order, 18 FCC Rcd. 13,620,

13,627 (2003) (“2002 Biennial Regulatory Review

Report”) (“There are five types of diversity pertinent

to media ownership policy: viewpoint, outlet,

program, source, and minority and female ownership

diversity.”). The fundamental thesis is that ownership

correlates to point of view, and point of view correlates

to audience. Thus, with respect to the forms of media

ownership Congress has directed the Commission to

regulate in the public interest, the Commission has

sought to inform, engage, and bring into collective

discourse the entirety of the nation. See id. at 13,774

(“[F]ostering the availability of diverse viewpoints

remains an important policy goal, and . . . diversity of

ownership promotes diversity of viewpoints.”). To that

end, in 1995, the Commission unequivocally stated:

“We believe that the public interest is served by

increasing economic opportunities for minorities and

women to own communications facilities.” Policies &

Rules Regarding Minority & Female Ownership of

Mass Media Facilities, Notice of Proposed

Rulemaking, 10 FCC Rcd. 2788, 2789 (1995) (“Policies

& Rules re Minority & Female Ownership”).

5

The Commission’s 1995 conclusion that diversity

in ownership advances the public interest reflected

Congress’s repeated instructions to advance minority

and female ownership. For example, as explained

below, in 1982, 1987, and 1993, Congress enacted

legislation requiring the Commission to focus on

ownership by women and minorities when

distributing broadcast licenses by various means. See

47 U.S.C. § 309(i)(3)(A) (lotteries); Pub. L.

No. 100-202, 101 Stat. 1329 (1987) (distress sales and

tax certificates); 47 U.S.C. § 309(j)(4)(D) (auctions). As

also illustrated below, courts, including this Court,

recognized and approved the Commission’s concern

for advancing minority and female ownership as part

of its public interest analysis. See, e.g., Metro Broad.,

Inc. v. FCC, 497 U.S. 547, 557 (1990), overruled in part

by Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995); W. Mich. Broad. Co. v. FCC, 735 F.2d 601, 612

(D.C. Cir. 1984).

This longstanding history confirms Respondents’

view that Section 202(h) did nothing to change the

Commission’s public interest mandate. Section 202(h)

requires the Commission to:

review its rules adopted pursuant to this

section and all of its ownership rules

[quadrennially] as part of its regulatory

reform review under section 11 of the

Communications Act of 1934 and . . .

determine whether any of such rules are

necessary in the public interest as the

result of competition. The Commission

shall repeal or modify any regulation it

6

determines to be no longer in the public

interest.

In enacting Section 202(h), Congress did not

jettison, but retained—with dual references—the

“public interest” as the lodestar guiding the

Commission’s regulation of media ownership. Nothing

in the text or otherwise suggests that Congress

intended to change the Commission’s long

understanding of its public interest duty to advance

media diversity, including minority and female

ownership. Had Congress wanted to work such a

fundamental change in the Commission’s wellestablished approach, it would have done so more

clearly.

Nor has the Commission understood the statute

that way. To the contrary, as the Government

Petitioners themselves explain, “[a]lthough the

statute does not specifically identify minority or

female ownership as a criterion the FCC must

consider in applying Section 202(h), the agency has

traditionally treated this form of broadcast diversity

as an element in its multi-factor public-interest

analysis.” Gov’t Br. at 18. Indeed, the Commission has

continuously and repeatedly considered ownership

diversity along these lines in the quadrennial review

context ordered by Section 202(h), and has never

disavowed

that

understanding,

up

to—and

including—the orders under review.

II. Here, the Commission understood its duties,

but did not fulfill them. In the Reconsideration Order

on review, the Commission recognized that it was

necessary to analyze the effect of its rule changes on

ownership by women and members of minority

7

groups, but jumped to the conclusion that those

changes would not adversely affect diversity on the

basis of badly flawed data and analysis. See, e.g., 2014

Quadrennial Regulatory Review—Review of the

Comm’n’s Broad. Ownership Rules & Other Rules

Adopted Pursuant to Section 202 of the Telecomms.

Act of 1996, Order on Reconsideration, 32 FCC Rcd.

9802, 9810-11, 9826-27, 9832, 9839-40 (2017)

(“Reconsideration Order”); Indus. Pet’rs’ App. at

86a-88a, 127a-128a, 142a, 161a-162a. As the Third

Circuit noted, the Commission had no data concerning

ownership by women. Prometheus IV, Indus. Pet’rs’

App. at 35a-37a. It had only flawed data concerning

minority ownership, and it engaged in deeply flawed

analysis of that data. See id. at 38a-39a. For example,

the Commission analyzed only the total number of

stations owned by minority groups, rather than

determining the effect of prior deregulation on the

percentage of stations owned by minorities. See id.

The Government contends that the Third Circuit

“demand[ed] empirical certainty” and suggests that it

required the Commission to perform a “regression

analysis.” Gov’t Br. at 42, 46. Not so. The court

merely—and correctly—required the Commission to

conduct a reasoned analysis consistent with the

Administrative Procedure Act.

ARGUMENT

I. THE COMMISSION HAS LONG HELD THAT

THE PUBLIC INTEREST IS SERVED BY

PROMOTING

MEDIA

DIVERSITY—

INCLUDING MINORITY AND FEMALE

OWNERSHIP.

8

Industry Petitioners erroneously contend that the

statute requires the “Commission to consider

competition, not minority and female ownership, in

conducting Section 202(h) reviews.” Indus. Pet’rs’ Br.

at 5. Industry Petitioners also mischaracterize and

deride minority and female ownership as “judge-made

policy concerns” and “non-statutory policy goal[s]” the

Third Circuit has wrongly imposed upon the agency.

See Indus. Pet’rs’ Br. at 9, 21, 35. But the fact that

Congress directed the Commission to review the

impact of “competition” on the “public interest” did not

work such a fundamental change in the Commission’s

public interest mandate or otherwise invalidate the

Commission’s understanding of how diversity,

including minority and female ownership, serves the

public interest. To the contrary, Congress plainly

distinguished between competition and the public

interest, and ordered the Commission to consider the

effect of competition on the factors the Commission

considered as part of its public interest analysis. And

far from being a Third Circuit invention foisted upon

the agency, promoting diversity, including minority

and female media ownership, has been and remains a

well-established and important component of the

Commission’s public interest review.

To correct the Industry Petitioners’ unfounded

contentions, we trace below the FCC’s historical

interpretation of the public interest mandate as it

relates to diversity generally, and to minority and

female ownership specifically—both before and after

the 1996 Act. This history conclusively demonstrates

that the FCC itself—and not the Third Circuit—has

long interpreted the “public interest” to include

protecting and promoting media diversity, including

9

minority and female ownership, and that Congress

did nothing to change that in Section 202(h).

A. Diversity Considerations Have Always

Been a Bedrock of the Commission’s

Public Interest Mandate.

From its genesis, the Commission has placed

significant focus on serving the interests of minority

populations both to advance broader conceptions of

diversity and as a stand-alone diversity objective. As

the Commission has explained, “[d]iversity of

ownership fosters diversity of viewpoints, and thus

advances core First Amendment principles . . . by

assuring that the programming and views available to

the public are disseminated by a wide variety of

speakers.” 1998 Biennial Regulatory Review—Review

of the Comm’n’s Broad. Ownership Rules & Other

Rules Adopted Pursuant to Section 202 of the

Telecomms. Act of 1996, Biennial Review Report, 15

FCC Rcd. 11,058, 11,062 (2000) (“1998 Biennial

Regulatory Review Report”).

As early as 1946, the Commission noted that “[i]t

has long been an established policy of . . . the

Commission that the American system of

broadcasting must serve significant minorities among

our population.” FCC, Report on Public Service

Responsibility of Broadcast Licensees 15 (1946). The

Commission furthered this goal in 1953 by enacting

its first regulation of multiple ownership. Amendment

of Sections 3.35, 3.240 & 3.636 of the Rules &

Regulations Relating to Multiple Ownership of AM,

FM & Television Broad. Stations, Report & Order, 18

F.C.C. 288, 291 (1953). The Commission enacted this

regulation in part based on its “view that the

10

operation of broadcast stations by a large group of

diversified licensees will better serve the public

interest than the operation of broadcast stations by a

small and limited group of licensees.” Id.

The Commission’s focus on diversity and the

advancement of minority interests began to evolve,

with judicial guidance, to specifically promote the

interest of racial minorities and women around the

time of the civil rights movement. In a seminal 1966

case, the D.C. Circuit considered a decision by the

Commission to renew the license of a Mississippi

broadcaster who engaged in a pattern of promoting

pro-segregation viewpoints to the exclusion of

contrary positions. Office of Commc’n of the United

Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir.

1966). The Commission recognized that the

broadcaster’s past behavior “would preclude the

statutory finding of public interest necessary for

license renewal.” Id. at 1007. But the Commission

elected to renew the license for one year, rather than

three, because there was only one other radio station

serving the area, a decision then-Judge Burger

described as “elect[ing] to post the Wolf to guard the

Sheep in the hope that the Wolf would mend his ways

because some protection was needed at once and none

but the Wolf was handy.” Id. at 1008. The court held

that it was error for the Commission to renew the

license. Id. at 1009. As this Court later noted, the

court’s decision in United Church of Christ

established the Commission’s “obligation under the

Communications Act of 1934 . . . to ensure that its

licensees’ programming fairly reflects the tastes and

viewpoints of minority groups.” See NAACP v. Fed.

Power Comm’n, 425 U.S. 662, 670 n.7 (1976). It also

11

foreshadowed a shift towards prioritizing the identity

of broadcasters over broadcaster multiplicity.

In 1967, President Lyndon Johnson appointed a

committee to study the racial unrest across the

country throughout the 1960s and to provide

recommendations for remedying racial tensions. Nat’l

Advisory Comm’n on Civil Disorders, The Kerner

Report 16-30 (Princeton Univ. Press 2016) (1968). The

so-called “Kerner Report,” a reference to its chairman,

Illinois Governor Otto Kerner, identified the lack of

minority representation in mainstream media as an

underlying cause of racial unrest. Id. The Report

advised that “[t]he news media must publish

newspapers and produce programs that recognize the

existence and activities of the Negro, both as a Negro

and as part of the community.” Id. at 21. Additionally,

the Kerner Report recommended that the media

“[r]ecruit more Negroes into journalism and

broadcasting and promote those who are qualified to

positions of significant responsibility.” Id. Although

the Kerner Report did not state minority ownership

as an explicit goal, the committee members made

clear that they expected minority leadership in media

to positively affect programming diversity.

Following United Church of Christ and the Kerner

Report, the Commission took further steps towards

fulfilling its public interest duties regarding minority

representation. In 1971, the Commission required

that a broadcast applicant must “submit such data as

is necessary to indicate the minority, racial, or ethnic

breakdown of the community.” Primer on

Ascertainment of Cmty. Problems by Broad.

Applicants, Part i, Sections IV-A & IV-B of FCC

12

Forms, Report & Order, 27 F.C.C.2d 650, 662 (1971).

This data allowed an applicant to complete a “study of

the composition of his community,” id., and thereby,

upon approval, plan his “program schedules to meet

the needs and interests of the communities they are

licensed to serve,” Application of Time-Life Broad.,

Inc. for Renewal of License of KLZ-TV, Denver, Colo.,

Memorandum Opinion & Order, 33 F.C.C.2d 1081,

1093 (1972). In requiring this consideration, the

Commission was explicit that “[t]he problems of

minorities must be taken into consideration.” Id.

B. By 1996, Minority and Female Ownership

Was an Unambiguous, Independent, and

Established Component of the Public

Interest Mandate.

For decades, the courts, Congress, and the

Commission have understood the Commission’s

public interest mandate to include consideration of

minority ownership interests. In its 1971 decision in

Citizens Communications Center v. FCC, for example,

the D.C. Circuit stated that:

As new interest groups and hitherto

silent minorities emerge in our society,

they should be given some stake in and

chance to broadcast on our radio and

television . . . frequencies. According to

the uncontested testimony of petitioners,

no more than a dozen of 7,500 broadcast

licenses issued are owned by racial

minorities.

.

.

.

[Accordingly,]

[d]iversification is a factor properly to be

weighed and balanced with other

important factors, including the renewal

13

applicant’s prior record, at a renewal

hearing.

447 F.2d 1201, 1213 n.36 (D.C. Cir. 1971), clarified by

Citizens Commc’ns Ctr. v. FCC, 463 F.2d 822 (D.C.

Cir. 1972). Notably, Citizens Communications Center

did not connect minority ownership to viewpoint

diversity, but rather implied that simply allowing

minorities a voice within the broadcasting space,

whatever content they chose to air, is in the public

interest.

The D.C. Circuit’s 1973 decision in TV 9, Inc. v.

FCC confirmed the relationship between minority

ownership and the public interest. 495 F.2d 929, 936

(D.C. Cir. 1973). There, the court considered a dispute

over the Commission’s decision to award applicant

Mid-Florida Television Corporation a construction

permit to broadcast on Channel 9 in Orlando, Florida.

Id. at 931. Comint Corporation, one of the denied

applicants, argued that it should have received

preference in the application process because two

African-American men served in ownership and

management positions with the company. Id. at 935.

The Commission had declined to award Comint any

preference on this basis, stating that “Black

ownership cannot and should not be an independent

comparative factor . . . rather, such ownership must

be shown on the record to result in some public

interest benefit.” Id. at 936 (omission in original).

The court determined that the Commission had

misinterpreted the public interest standard. The court

explained that minority ownership is in the public

interest whenever there is a “[r]easonable

expectation” that diverse ownership will increase

14

content diversity. Id. at 938. Minority ownership need

only be “likely,” not certain, to increase diversity of

content to support a Commission preference within

the

application

process.

Id.

No

“advance

demonstration” is necessary to make that showing. Id.

Following TV 9, the Commission convened a

conference on minority ownership policies. Metro

Broad., 497 U.S. at 555 (citing FCC Minority

Ownership Task Force, Report on Minority Ownership

in Broadcasting 4-6 (1978)). The next year, it issued a

Statement of Policy on Minority Ownership of

Broadcasting Facilities. Statement of Policy on

Minority Ownership of Broad. Facilities, Public

Notice, 68 F.C.C.2d 979 (1978). In this policy

statement, the Commission stressed that “the present

lack of minority representation in the ownership of

broadcast properties is a concern to us. We believe

that diversification in the areas of programming and

ownership—legitimate public interest objectives of

this Commission—can be more fully developed

through our encouragement of minority ownership of

broadcast properties.” Id. at 981. In reaching this

conclusion, the Commission extensively cited both

Citizens Communications Center and TV 9, stating

that the court had “made plain that minority

ownership and participation in station management

is in the public interest both because it would

inevitably increase the diversification of control of the

media and because it could be expected to increase the

diversity of program content.” Id. at 982. Embracing

this conception of the public interest standard, the

Commission enacted several programs to increase

diversity, including tax certificates and the transfer of

licenses at reduced “distress sale prices” to minority

15

applicants. Id. at 983-84. The Commission also

emphasized the independent significance of minority

ownership, apart from the potential to increase

viewpoint diversity:

[A]n increase in ownership by minorities

will inevitably enhance the diversity of

control of a limited resource, the

spectrum. And, of course, we have long

been committed to the concept of

diversity

of

control

because

“diversification . . . is a public good in a

free society, and is additionally desirable

where a government licensing system

limits access by the public to the use of

radio and television facilities.”

Id. at 981 (quoting Policy Statement on Comparative

Broad. Hearings, Public Notice, 1 F.C.C.2d 393, 394

(1965)).

Far from objecting, Congress reinforced the

Commission’s view that the public interest included

considerations of minority and female ownership. In

1982, Congress passed legislation which required the

Commission to grant a “significant preference” to “any

applicant controlled by a member or members of a

minority group” in the context of 47 U.S.C. § 309

application lotteries. 47 U.S.C. § 309(i)(3)(A). As later

described by the D.C. Circuit, this enactment

demonstrated that Congress “clearly” shared the

Commission’s view on the importance of minority and

female ownership to the public interest mandate. W.

Mich. Broad. Co., 735 F.2d at 612. Pursuant to this

legislation, the Commission soon thereafter adopted

rules which required that “minority and diversity

16

preferences be given to certain mass media

applicants.” Amendment of the Comm’n’s Rules to

Allow the Selection from Among Certain Competing

Applications Using Random Selection or Lotteries

Instead of Comparative Hearings, Second Report &

Order, 93 F.C.C.2d 952, 953 (1983). In enacting these

rules, the Commission acted in the public interest to

“increase minority ownership and enhance ownership

. . . diversity generally.” Id. at 957.

In essentially the inverse case from TV 9, in 1984

the D.C. Circuit considered a challenge to the

Commission’s award of a “substantial enhancement”

to a minority-owned station competing for a

construction permit. W. Mich. Broad. Co., 735 F.2d at

603. The non-minority-owned applicant argued that

the Commission had erred in applying this preference

because, unlike TV 9, in which the parties were

competing for a permit in the Orlando area, the part

of Michigan where the applicants sought to provide

service did not have a largely minority population.

The lack of minority viewers, the non-minority

applicant argued, obviated the public interest

rationale for preferring minority ownership.

The Commission argued that “minority ownership

promotion policies have never been exclusively

premised on the goal of providing particular minority

audiences” with programming aimed at their

interests. Id. at 609. The court agreed with the

Commission that pursuing minority ownership was a

“generally legitimate” goal under the Commission’s

public interest mandate, even when not directly

linked to meeting “unmet listening needs of minority

communities.” Id. at 611-12. The court also reviewed

17

prior and related Commission policy, leading it to

conclude that “the Commission’s position in this case,

and the conception of the public interest it embodies,

is wholly consistent with the overall policies it has

pursued.” Id. at 612.

The Supreme Court considered similar issues in

Metro Broadcasting, 497 U.S. 547. There, the Court

considered whether minority preferences in

comparative proceedings for new licenses and

minority distress sales violated equal protection

principles. In making its determination, the Court

found that “minority ownership policies are . . .

substantially related to the goal of promoting

broadcast diversity,” and are thus supported by the

public interest mandate. Id. at 584. The Court

acknowledged that “there is no ironclad guarantee

that each minority owner will contribute to diversity.”

Id. at 579. Still, the Court unambiguously found that

minority ownership is an important component of the

public interest standard. See id. at 597 (discussing

“public interest factors such as minority ownership”);

see also Garrett v. FCC, 513 F.2d 1056, 1061-63 (D.C.

Cir. 1975) (explaining that the Commission should

take into account ownership diversity because of the

reasonable expectation that minority ownership will

lead to more diverse and responsive programming).

Although the Commission and the courts discussed

female ownership periodically in conjunction with

minority ownership, by the late 1980s, female

ownership began to gain equal footing with minority

ownership as part of the public interest mandate.

Congress not only embraced but helped to drive this

view. In 1987, the Congressional Committee on

18

Appropriations stated that “[i]n approving a lottery

system for the selection of certain broadcast licensees,

the Congress explicitly approved the use of

preferences to promote minority and women

ownership.” S. Rep. No. 100-182, at 76-77 (1987). That

year, Congress included in the Commission’s

appropriations legislation language requiring that the

Commission not repeal “distress sales and tax

certificates granted under 26 U.S.C. 1071, to expand

minority and women ownership of broadcasting

licenses.” Pub. L. No. 100-202, 101 Stat. 1329 (1987).

In 1993, when Congress amended 47 U.S.C. § 309

to authorize the Commission to assign spectrum by

auction rather than lottery, it reaffirmed the

importance of such diversity. Congress specifically

directed the Commission to ensure that “minority

groups and women are given the opportunity to

participate in the provision of spectrum-based

services, and, for such purposes, consider the use of

tax certificates, bidding preferences, and other

procedures.” 47 U.S.C. § 309(j)(4)(D). Although this

provision does not involve broadcast ownership, it

reflects a congressional mandate that the interests of

minority and female ownership be prioritized. As later

summarized by the Commission, in making this

amendment, “Congress specifically recognized that it

is consistent with the public interest to adopt

competitive bidding procedures that promote

economic opportunity for a wide variety of applicants,

including minorities and women.” Policies & Rules re

Minority & Female Ownership at 2790.

Thus, by the mid-1990s, the Commission’s view

was well established and unambiguous: the “public

19

interest” was served by preserving and promoting

diversity, including minority and female ownership.

The Commission actively sought comment on ways “to

provide minorities and women with greater

opportunities to enter the mass media industry,

specifically including the broadcast, cable, wireless

cable, and low power television services.” Id. at 2788.

As the Commission unequivocally stated, “[w]e believe

that the public interest is served by increasing

economic opportunities for minorities and women to

own communications facilities.” Id. at 2789.

C. Section 202(h) Did Not Alter the

Commission’s View that the Public

Interest Is Served by Diversity, Including

Minority and Female Ownership.

The longstanding history described above confirms

Respondents’ reading of the statute and that Section

202(h) did not, as the Industry Petitioners contend,

fundamentally change the Commission’s public

interest mandate. Rather, Congress adopted Section

202(h) against this historical backdrop.

Section 202(h) states:

The Commission shall review its rules

adopted pursuant to this section and all

of its ownership rules [quadrennially] as

part of its regulatory reform review

under section 11 of the Communications

Act of 1934 and . . . determine whether

any of such rules are necessary in the

public interest as the result of

competition. The Commission shall

repeal or modify any regulation it

20

determines to be no longer in the public

interest.

“[N]othing in § 202(h) signals a departure from [the]

historic scope” of the Commission’s public interest

mandate. Fox Television Stations, Inc. v. FCC, 280

F.3d 1027, 1042 (D.C. Cir. 2002). Far from rescinding

the Commission’s “public interest” standard for media

ownership regulation, Congress doubled down on it in

Section 202(h) by using the phrase “public interest”

two times. To be sure, Section 202(h) directs the

Commission to consider whether the rules are

necessary in the public interest “as a result of

competition.” But Section 202(h) preserves the

primacy of the Commission’s overall “public interest”

determination and provides no evidence that

Congress intended to change the Commission’s

authority to interpret that broader term.

Industry Petitioners vehemently contend that,

unlike the express reference to “competition,” Section

202(h) does not require the Commission to consider

minority and female ownership as part of the “public

interest.” Indus. Pet’rs’ Br. at 20-21, 27-32. But that

is beside the point. The Commission is doubly

required to consider the public interest by the

statutory text. And nothing in the statute prevented

the Commission from continuing to define the “public

interest” to include diversity and to consider minority

and female ownership consistent with decades of pre1996-Commission and judicial precedent. Even the

Industry Petitioners acknowledge, albeit in a footnote

that undermines their text, that minority ownership

has long been a factor in the Commission’s public

interest analysis. Id. at 39 n.12. Against that

21

backdrop, it was clear when Section 202(h) was

enacted that ownership by women and members of

minority groups was part of the public interest

analysis, and whether a regulation remains in the

public interest therefore depends in part on its effect

on minority and female ownership. Had Congress

wanted to work the fundamental change envisioned

by Industry Petitioners, it would have done more than

add the phrase “as the result of competition” while

maintaining—twice over—the public interest as the

lodestar of broadcast regulation.

Industry Petitioners also invoke Adarand and

suggest that it prohibits “consideration of minority

and female ownership.” Indus. Pet’rs’ Br. at 31-32.

But while Adarand’s strict scrutiny standard may

limit the remedies available to increase minority and

female ownership, it does not prohibit consideration of

the effect of Commission rules on minority and female

ownership.

The

Commission’s

longstanding

interpretation of the public interest standard is

plainly separate from what steps are appropriate to

advance the public interest.

Nor does anything in the statute support

restricting the Commission’s consideration of the

“public interest,” as Industry Petitioners propose, id.

at 32, to the original rationale for adopting an

ownership rule. Instead, as the Government explains,

“[a]lthough the statute does not specifically identify

minority or female ownership as a criterion the FCC

must consider in applying Section 202(h), the agency

has traditionally treated this form of broadcast

diversity as an element in its multi-factor publicinterest analysis.” Gov’t Br. at 18. Even if Industry

22

Petitioners’ preferred reading of Section 202(h) were

permissible, the Commission has never adopted it. To

the contrary, in none of its quadrennial reviews—

including the one at issue in this case—has the

Commission ever disavowed that the public interest is

served by diversity, including minority and female

ownership.

Pursuant to Section 202(h), as the Commission

considers repealing or modifying a rule, it must

evaluate all the public interest implications of that

decision to determine whether the rule is “no longer in

the public interest.” The corollary is true: if the

Commission considers a specific factor in evaluating

whether a rule should be repealed, it does so because

that factor is a component of the public interest

standard. This is particularly true when a factor is

considered time and time again, in multiple contexts

and under multiple different administrations. In its

quadrennial reviews, the Commission has repeatedly

evaluated minority and female ownership in its public

interest

analysis,

demonstrating

that

such

considerations fall squarely within the Commission’s

conception of the public interest standard.

Respondents’ brief ably recounts the Commission’s

sustained commitment to diversity in carrying out

Section 202(h) reviews. Resp’ts’ Br. at 5-16. While

different Commission reviews have reached different

results, the Commission has continuously and

repeatedly recognized the critical importance of

diversity, including minority and female ownership

diversity, to the public interest. See 1998 Biennial

Regulatory Review Report at 11,062 (explaining that

“[d]iversity of ownership fosters diversity of

23

viewpoints, and thus advances core First Amendment

principles”); id. at 11,059, 11,073 (considering

whether the “elimination of, or increase in, the

[National TV Ownership] cap would . . . increase

minority ownership by removing the cap as an

impediment to broadcasters obtaining attributable

equity interests in minority-owned television

stations”); 2002 Biennial Regulatory Review Report at

13,627 (citing “five types of diversity pertinent to

media ownership policy: viewpoint, outlet, program,

source, and minority and female ownership

diversity”); id. at 13,634 (explaining that

“[e]ncouraging minority and female ownership

historically has been an important Commission

objective”); 2006 Quadrennial Regulatory Review—

Review of the Comm’n’s Broad. Ownership Rules &

Other Rules Adopted Pursuant to Section 202 of the

Telecomms. Act of 1996, Report & Order, 23 FCC Rcd.

2010, 2068 (2008) (reinstating the failed station

solicitation rule “[t]o ensure that we do not negatively

impact minority owners”); 2014 Quadrennial

Regulatory Review—Review of the Comm’n’s Broad.

Ownership Rules & Other Rules Adopted Pursuant to

Section 202 of the Telecomms. Act of 1996, Second

Report & Order, 31 FCC Rcd. 9864, 9871 (2016) (“2014

Quadrennial Review 2nd Report & Order”) (“[T]he

Local Television Ownership Rule continues to be

consistent with our goal of promoting minority and

female ownership of broadcast television stations.”);

id. at 9911 (“We affirm our tentative conclusion that

the [Local Radio Ownership Rule] remains consistent

with the Commission’s goal to promote minority and

female ownership of broadcast radio stations.”); id. at

9917 (“[The Newspaper/Broadcast Cross-Ownership

24

Rule] does not have a significant impact on minority

and female broadcast ownership . . . .”).

In its Reconsideration Order at issue here, Indus.

Pet’rs’ App. at 64a-310a, the Commission did not

break this interpretive chain. To the contrary, it

affirmed the public interest policy goals of “viewpoint

diversity, localism, and competition,” and declined to

consider “arguments that ownership does not

influence viewpoint.” See, e.g., Reconsideration Order,

Indus. Pet’rs’ App. at 86a-87a. Nowhere in the

Reconsideration Order did the Commission disavow

its “goal of promoting minority and female

ownership.” See 2014 Quadrennial Review 2nd Report

& Order at 9871, 9897, 9914, 9945, 10,030, 10,031.

Rather, the Commission adhered to that historical

interpretation of the public interest and purported to

consider the evidence of female and minority

ownership to reach the conclusion that its decisions

would not affect that aspect of diversity. See, e.g.,

Reconsideration Order, Indus. Pet’rs’ App. at 86a-88a,

127a-128a, 142a, 161a-162a.

In short, both before and after the enactment of

Section 202(h) in the 1996 Act, the Commission has

maintained that the “public interest” is served by

promoting media ownership diversity—including

minority and female ownership. This is neither new

nor contrary to the statute. Nor was it foisted upon

the Commission by any Third Circuit policy

preference. Rather, the Commission has itself

embraced this view for decades, and nothing in

Section 202(h) prevented it from continuing to do so in

the quadrennial review context.

25

II. THE THIRD CIRCUIT CORRECTLY HELD

THE COMMISSION ACCOUNTABLE FOR

FAILING TO CONSIDER IMPORTANT

ASPECTS OF MEDIA OWNERSHIP.

In the Reconsideration Order, the Commission

retained its long-held view of the public interest

described above. Having done so, the Commission

needed to determine how its decision to relax the

media ownership rules affected ownership by women

and minorities. While the Commission is rightly

entitled to deference on its policy judgments, it cannot

abandon the most fundamental obligation of agency

decision-making: supporting those judgments with

rational explanation and record evidence. Where an

agency fails to meet this obligation, reviewing courts

rightly hold them to account, as the Third Circuit did

here.

The Administrative Procedure Act (APA) tasks

courts with reviewing agency actions and setting

aside decisions that are arbitrary and capricious. 5

U.S.C. § 706(2). “The scope of review under the

‘arbitrary and capricious’ standard is narrow and a

court is not to substitute its judgment for that of the

agency.” Motor Vehicle Mfrs. Ass’n of U.S. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Nevertheless, as the Third Circuit observed, an

agency must “examine the relevant data and

articulate a satisfactory explanation for its action[,]

including a rational connection between the facts

found and the choice made.” Prometheus IV, Indus.

Pet’rs’ App. at 19a (alteration in original) (quoting

State Farm, 463 U.S. at 43).

26

Accordingly, by making the public interest

paramount in Section 202(h), Congress granted broad

discretion to the Commission—but with that

discretion came the responsibility to define goals and

apply reasoned analysis when weighing such goals. As

laid out in National Broadcasting Co. v. United States,

where the FCC acts in the public interest, the judicial

inquiry is relaxed but not toothless. See 319 U.S. 190,

224 (1943) (“NBC”). The Commission must show it has

acted “pursuant to authority granted by Congress”

and—importantly—that its action was “based upon

findings supported by evidence.” Id. (emphasis added);

see also FCC v. Nat’l Citizens Comm. for Broad., 436

U.S. 775, 793 (1978) (“NCCB”) (noting the

Commission’s broad power to regulate in the public

interest, “so long as [its] view is based on

consideration of permissible factors and is otherwise

reasonable”).

This Court has consistently deferred to the

Commission’s expertise only where the agency has

fully done its job. In NBC, the Commission had leeway

to create new broadcasting rules, but this followed a

“long investigation” into practices leading to media

concentration. 319 U.S. at 225. Similarly, in NCCB,

the Commission enjoyed deference to its decisions on

media-ownership rules, but only after the agency had

shown its thorough reasoning. See 436 U.S. at 785-86

(detailing the Commission’s research analysis and

how this logically tied into its ultimate policy

conclusions). Continuing this pattern, the Court again

deferred to the Commission in FCC v. WNCN

Listeners Guild, this time for a license renewal policy.

450 U.S. 582, 596 (1981). But as before, the Court

deferred only after finding that the Commission had

27

“provided a rational explanation for its conclusion.”

Id. at 595. Echoing NCCB, the Court explained that

deference hinges upon whether an action is “based on

consideration of permissible factors and . . . otherwise

reasonable.” Id. at 594 (quoting NCCB, 436 U.S. at

793).

These deference principles lay bare the problems

with the argument made by Government Petitioners.

Although Government Petitioners cite NBC, NCCB,

and WNCN to show the Court’s deference to the

Commission’s policy choices, these opinions all

deferred to reasoned judgments. Unlike in those cases,

the Commission here failed to support its decision

with reasoned analysis. It concluded that relaxing the

media ownership rules would not harm diversity—

without any record evidence on female ownership and

highly flawed data and analysis on minority

ownership. As the Third Circuit explained, the

Commission examined no data whatsoever concerning

female ownership. Prometheus IV, Indus. Pet’rs’ App.

at 35a-37a. With regard to minority ownership, the

Commission’s analysis was “so insubstantial that it

would receive a failing grade in any introductory

statistics class.” Id. at 38a.

To begin, the Commission overlooked obvious

differences between incomparable data sets. Id. at

37a-40a. In fact, the seeming increase in minority

ownership “is thought to have been caused by largely

improved methodology rather than an actual increase

in the number of minority-owned stations.” Id. at 38a;

see also 2014 Quadrennial Review 2nd Report & Order

at 9911-12. Furthermore, the Commission did not

acknowledge research in the record that corrected for

28

inconsistencies between its data sets. See Resp’ts’ Br.

at 15-16. That record evidence concluded that 40% of

minority-owned television stations were lost due to

relaxing ownership rules. Id. at 16. This omission is

especially glaring, since the Commission cited this

study for data elsewhere. Id. at 39.

The problems do not stop there. Even if the data

sets could be treated the same, comparing only the

absolute number of minority-owned stations at

different times is hardly informative. Yet the

Commission made exactly this comparison, ignoring

the high likelihood that examining the percentage of

minority-owned stations—which would account for

changes in the total number of stations over time—

might tell a different story. Prometheus IV, Indus.

Pet’rs’ App. at 38a. Additionally, even if the total

number of minority-owned stations has increased—an

assumption, again, based on flawed statistics—that

scarcely reveals the effect of deregulation. As the

Third Circuit pointed out, the Commission “made no

attempt to assess . . . how many minority-owned

stations there would have been in 2009 had there been

no deregulation.” Id at 39a. Instead, the Commission

looked at the seeming increase in minority ownership

and concluded simply that deregulation seemed not to

have “prevent[ed] an overall increase” in minority

ownership. Id. Relying on such flawed record evidence

to conclude that wholesale relaxation of its media

ownership rules was “not likely to harm minority and

female ownership,” see, e.g., Reconsideration Order,

Indus. Pet’rs’ App. at 161a, falls far short of reasoned

decision-making.

29

Appropriately, the Commission has received

deference where data does not provide a clear answer

and where agencies are reasoning prospectively, as

Government Petitioners point out. See Gov’t Br. at 36,

44. But Government Petitioners mischaracterize this

deference and how it applies. First, they fail to note

that the Commission must still engage in a rational

analysis where data is unilluminating. In NCCB—

where data was inconclusive, and the Commission

enjoyed latitude partly on this score—the Court still

tracked how the Commission interpreted the data. See

436 U.S. at 785-86. In extending deference, the Court

noted the Commission relied on its pre-existing policy

of promoting diversity and had found no “persuasive

countervailing considerations.” Id. at 786. Here,

though, the Commission failed to analyze

fundamental flaws with its data and ignored obvious

“countervailing considerations” that flowed from

these flaws. See Prometheus IV, Indus. Pet’rs’ App. at

35a-40a. Moreover, the Commission in NCCB had

been considering a record not previously addressed.

Here, by contrast, the Commission examined a record

already ruled upon and then reached a conclusion

opposite from what it had previously concluded.

Second, although the Court has been generous

with granting deference for prospective judgments,

the Commission’s judgment in this matter required

reasoned analysis of the effect of previous decisions.

That is because how past relaxation of ownership

rules affected minority and female ownership is

plainly relevant to determining how the changes

under consideration would do so. This case, involving

a longstanding policy, is therefore distinct from cases

involving an entirely new policy, where there may be

30

no past actions to analyze. Cf. NCCB, 436 U.S. at 779,

813-14 (giving deference to the Commission’s

predictive judgments about the effects of elements of

a new cross-ownership rule).

The Commission’s many failures show why the

Third Circuit was correct to set aside the

Commission’s decision to relax media ownership

rules. An agency’s basic obligation is to show a

“rational connection” between its actions and the

record it considered. State Farm, 463 U.S. at 43. In

particular, agencies must not “entirely fail[] to

consider an important aspect of [a] problem.” Id. Thus,

by performing an analysis of minority ownership

riddled with errors—and not even looking at data on

female ownership—the Commission failed to fulfill its

basic duty to reasonably support its conclusion that

relaxing its media ownership rules would not harm

minority and female ownership. For this reason, the

Third Circuit rightly vacated the Orders on review.

31

CONCLUSION

The Court should affirm the Third Circuit’s

judgment.

Respectfully submitted,

Christopher J. Wright

Counsel of Record

Stephanie S. Weiner

Grace H. Wynn

HARRIS, WILTSHIRE &

GRANNIS LLP

1919 M Street NW, Fl. 8

Washington, DC 20036

(202) 730-1300

cwright@hwglaw.com

Counsel for Amici

Curiae

Newton Minow, FCC Chairman, 1961-1963

Nicholas Johnson, FCC Commissioner, 1966-1973

Tyrone Brown, FCC Commissioner, 1977-1981

Reed Hundt, FCC Chairman, 1993-1997

William Kennard, FCC Chairman, 1997-2001

Gloria Tristani, FCC Commissioner, 1997-2001

Jonathan Adelstein, FCC Commissioner, 2002-2009

Julius Genachowski, FCC Chairman, 2009-2013

Tom Wheeler, FCC Chairman, 2013-2017