Today, TechFreedom filed an amicus brief urging the Supreme Court to let the Federal Communications Commission implement long-needed reforms of the media-ownership restrictions the agency imposes on local print and broadcasting markets. The consolidated cases are FCC v. Prometheus Radio Project, No. 19-1231, and National Association of Broadcasters v. Prometheus Radio Project, No. 19-1241.

In Section 202(h) of the Telecommunications Act of 1996, Congress instructed the FCC to periodically review its media-ownership rules, and to modify or repeal the ones that it “determine[s]” are, “as a result of competition,” no longer “necessary in the public interest.” Citing “dramatic changes in the marketplace,” the FCC has tried repeatedly to change or repeal various of these antiquated rules (for example, a rule that bars owning both a print newspaper and a television station in the same market). Insisting that the agency consider, and place great weight on, tangential factors not present in the law, a divided panel of the Third Circuit has been blocking all reform for 17 years.

“TechFreedom does not come to the FCC’s defense often or lightly,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “In this case, however, the FCC is clearly in the right. It has faithfully carried out directives set forth in statute, by Congress. The Third Circuit, meanwhile, has spent many years, across several appeals, improperly replacing the FCC’s conception of the public interest with the court’s own.”

“Letting the Third Circuit’s ruling stand would rattle the foundations of administrative law as we know it,” Barthold continued. “That body of law allows Congress to delegate authority to agencies. When courts try to snatch that authority for themselves, the system becomes dysfunctional. In place of decision by expert specialist, we get decision by roving generalist. And in place of a relatively predictable regulatory process, we get a protracted tug-of-war between the agencies and the courts, with each side cheered on by swarms of lawyers. Private parties struggle to follow the interminable proceedings, continuously prepare to adapt to new obligations, and pay piles of legal bills. A system that was supposed to help a complex society solve problems instead winds up making that society yet more complex.”

The brief situates the case within the larger debate over how courts should review administrative agency decisions. When, as happened here, a court fails to respect a congressional delegation of authority and defer to a valid agency interpretation of the law, the resulting regulatory gridlock strengthens the arguments of those judges, scholars, and experts who favor allowing less delegation by Congress and less deference to agencies.


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Read our related work including:

  • PR on the FCC’s draft order of its latest attempt at reform 
  • TechFreedom’s 2017 comments on media-ownership regulations
  • Tech Policy Podcast #201 episode on the FCC’s media-ownership rules
  • Tech Policy Podcast #90 episode on a prior Third Circuit decision blocking reform