On January 19, the U.S. Supreme Court held oral arguments in FCC v. Prometheus Radio Project and National Association of Broadcasters v. Prometheus Radio Project. At issue in those consolidated cases is the FCC's authority under Section 202(h) of the Telecommunications Act of 1996 to repeal or modify media ownership rules that the Commission determines are no longer "necessary in the public interest as the result of competition." Free State Foundation Senior Fellow Andrew Long briefly wrote about this case in an October 2020 blog post.
For years and years, a divided panel of the Third Circuit has effectively blocked any significant modernization of the FCC's media ownership rules. The Third Circuit has done so, in part, by continuing to emphasize the Supreme Court's older spectrum scarcity rationale as a basis for freezing in place long-outdated rules. The case now before the Supreme Court involves the Commission's 2017 decision to repeal certain cross-ownership rules. It's a welcome development that the Supreme Court has taken up the case. At the very least, the Court's forthcoming decision portends the end of the years-long tail-chasing exercise involving the Commission and the Third Circuit.
A same-day analysis of the oral arguments can be found at SCOTUSblog. It has been remarked that the change in Administration could lead to the reinstatement of the media ownership restrictions that existed prior to the FCC's 2017 order. However, a prospective ruling by the Supreme Court that acknowledges the Commission's authority to make decisions based on the dramatic transformations in the media market would remove a major impediment to long-lasting reform. And such a decision likely would require even a pro-regulation-minded Commission to at least make some rule modifications in light of today's market conditions rather than return to the same rules that predated the 2017 order.
Free State Foundation President Randolph May and I wrote about the FCC's media ownership rules in our Perspectives from FSF Scholars Paper, "It's Time for the FCC to Relinquish Control of Media Ownership."
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