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Media General, et al. v. FCC & USA, No. 11-691 and 11-696 (Sup. Ct.)

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Released: March 7, 2012

Nos. 11-691 and 11-696

In the Supreme Court of the United States
MEDIA GENERAL, INC., PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
TRIBUNE COMPANY, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

SRI SRINIVASAN
AUSTIN C. SCHLICK
Acting Solicitor General
General Counsel
Counsel of Record
Department of Justice
PETER KARANJIA
Washington, D.C. 20530-0001
Deputy General Counsel
SupremeCtBriefs@usdoj.gov
JACOB M. LEWIS
(202) 514-2217
Associate General Counsel
C. GREY PASH, JR.
Counsel
Federal Communications
Commission
Washington, D.C. 20554

QUESTION PRESENTED

Whether the Federal Communications Commission’s
broadcast ownership rules violate the First and Fifth
Amendments to the Constitution.
(I)

TABLE OF CONTENTS

Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TABLE OF AUTHORITIES

Cases:
American Family Ass’n v. FCC, 365 F.3d 1156 (D.C.
Cir.), cert. denied, 543 U.S. 1004 (2004) . . . . . . . . . . . . . 17
Brotherhood of Locomotive Firemen v. Bangor &
Aroostook R.R., 389 U.S. 327 (1967) . . . . . . . . . . . . . . . . 26
Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . 25
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432
(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
FCC v. League of Women Voters, 468 U.S. 364
(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25
FCC v. National Citizens Comm. for Broad., 436 U.S.
775 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18, 24
Media Gen., Inc. v. FCC, 545 U.S. 1123 (2005) . . . . . . . . . . 6
Minneapolis Star & Tribune Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575 (1983) . . . . . . . . . . . . 27
National Broad. Co. v. United States,
319 U.S. 190 (1943) . . . . . . . . . . . . . . . . . . . 4, 16, 18, 19, 24
(III)

IV
Cases—Continued: Page
Prometheus Radio Project v. FCC, 373 F.3d
372 (3d Cir. 2004), cert. denied, 545 U.S.
1123 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 14, 19, 28
Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21
Reno v. ACLU, 521 U.S. 844 (1997) . . . . . . . . . . . . . . . . 19, 20
Sinclair Broad. Group v. FCC, 284 F.3d 148
(D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17
Spector Motor Serv., Inc. v. McLaughlin,
323 U.S. 101 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Syracuse Peace Council, 2 F.C.C.R. 5043
(1987), aff’d, 867 F.2d 654 (D.C. Cir. 1989),
cert. denied, 493 U.S. 1019 (1990) . . . . . . . . . . . . . . . 22, 23
Telecommunications Research & Action Ctr. v. FCC,
801 F.2d 501 (D.C. Cir. 1986), cert. denied, 482 U.S.
919 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622
(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 18, 19, 20, 24, 27
United States v. IBM Corp., 517 U.S. 843 (1996) . . . . . . . 18
United States v. Storer Broad. Co., 351 U.S. 192
(1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . . . 24
Constitution, statutes and regulations:
U.S. Const.:
Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 14, 16, 28
Administrative Procedure Act, 5 U.S.C. 553 . . . . . . . . . . . 11
Communications Act of 1934, 47 U.S.C. 151 et seq. . . . . . . . 2

V
Statutes and regulations—Continued:
Page
47 U.S.C. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 21
47 U.S.C. 307(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
47 U.S.C. 309(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 19
47 U.S.C. 309(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 309(j)(6)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
47 U.S.C. 309(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 310(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 19, 21
47 U.S.C. 336(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropria-
tions Act, 2004 (2004 Act), Pub. L. No. 108-199,
Div. B, 118 Stat. 46:
§ 629, 118 Stat. 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
§ 629(3), 118 Stat. 100 . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Middle Class Tax Relief and Job Creation Act of 2012,
Pub. L. 112-96, 126 Stat. 156 . . . . . . . . . . . . . . . . . . . . . . 28
§ 6403, 126 Stat. 225 . . . . . . . . . . . . . . . . . . . . . . . . 22, 28
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
§ 202(a)-(f), 110 Stat. 110-111 . . . . . . . . . . . . . . . . . . . . 4
§ 202(b), 110 Stat. 110-111 . . . . . . . . . . . . . . . . . . . . . . 24
§ 202(h), 110 Stat. 111 . . . . . . . . . . . . . . . . . . . . . . . 4, 14
28 U.S.C. 2112(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
47 C.F.R.:
Section 73.658(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 73.3555(a) (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 73.3555(b) (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 73.3555(c) (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI
Regulations—Continued:
Page
Section 73.3555(c)(2) (2002) . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 73.3555(c)(2)(i) (2002) . . . . . . . . . . . . . . . . . . . . . . 9
Section 73.3555(c)(2)(ii) (2002) . . . . . . . . . . . . . . . . . . . . . . 9
Miscellaneous:
Congressional Budget Office, S. 911 Public Safety
Spectrum and Wireless Innovation Act (July 20,
2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
FCC, Connecting America: The National Broad-
band Plan (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Implementation of Section 309(j) of the Communi-
cations Act, 13 F.C.C.R. 15920 (1998), amended on
recons., 14 F.C.C.R. 8724 (1999), aff’d, Orion
Commc’ns, Ltd.
v. FCC, 213 F.3d 761 (D.C. Cir.
2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Policy Statement on Comparative Broadcast Hear-
ings, 1 F.C.C.2d 393 (1965) . . . . . . . . . . . . . . . . . . . . . . . 23
Public Notice DA 10-1084, 25 F.C.C.R. 7514 (2010) . . . . . 14
2002 Biennial Regulatory Review:
17 F.C.C.R. 18,503 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
18 F.C.C.R. 13,620 (2003) . . . . . . . . . . . . . . . . . . . . . . . 4, 27
2006 Quadrennial Regulatory Review, 21 F.C.C.R.
8834 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2010 Quadrennial Regulatory Review,
25 F.C.C.R. 6086 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
77 Fed. Reg. (Jan. 19, 2012):
p. 2868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
p. 2869 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

In the Supreme Court of the United States
No. 11-691
MEDIA GENERAL, INC., PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
No. 11-696
TRIBUNE COMPANY, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-
84a1) is reported at 652 F.3d 431. The report and order
of the Federal Communications Commission (Pet. App.
85a-375a) is reported at 23 F.C.C.R. 2010.
1 All “Pet. App.” citations are to the appendix to the petition for a
writ of certiorari in No. 11-696.
(1)

2

JURISDICTION

The judgment of the court of appeals was entered on
July 7, 2011. A petition for rehearing was denied on
September 6, 2011 (Pet. App. 376a-378a). The petition
for a writ of certiorari was filed on December 5, 2011.
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

STATEMENT

1. The Communications Act of 1934 (Communica-
tions Act or Act), 47 U.S.C. 151 et seq., establishes a
comprehensive framework for federal regulation of the
transmission and use of radio signals in the United
States. The Act establishes a federal policy of “main-
tain[ing] the control of the United States over all the
channels of radio transmission” and “provid[ing] for the
use of such channels, but not the ownership thereof, by
persons for limited periods of time, under licenses
granted by Federal authority.” 47 U.S.C. 301. The Act
requires persons seeking to engage in radio or television
broadcasting to obtain a broadcast license for a limited,
but renewable, period of time from the Federal Commu-
nications Commission (FCC or Commission), ibid., and
prohibits the assignment or transfer of any such license
without the Commission’s prior approval, 47 U.S.C.
309(h), 310(d).
Before it may grant, renew, or approve the assign-
ment or transfer of a broadcast license, the Commission
must conclude that such action would serve the “public
interest, convenience, and necessity.” 47 U.S.C. 309(a),
310(d); see 47 U.S.C. 309(k). Among the policies the
Commission has sought to advance in exercising its
broadcast-licensing responsibilities is a policy favoring
diversification of mass media ownership. In the Commis-

3
sion’s view, such diversification serves the public inter-
est “by promoting diversity of program and service
viewpoints, as well as by preventing undue concentra-
tion of economic power.” FCC v. National Citizens
Comm. for Broad., 436 U.S. 775, 780 (1978) (NCCB); see
also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 663
(1994) (Turner) (“[A]ssuring that the public has access
to a multiplicity of information sources is a governmen-
tal purpose of the highest order, for it promotes values
central to the First Amendment. Indeed, it has long
been a basic tenet of national communications policy
that the widest possible dissemination of information
from diverse and antagonistic sources is essential to the
welfare of the public.”) (internal quotation marks and
citation omitted).
To facilitate even-handed implementation of its poli-
cies and to provide certainty to the broadcast industry,
the Commission has adopted generally applicable regu-
lations that reflect its judgments about the circum-
stances in which the issuance, assignment, or transfer of
a broadcast license would serve the public interest. See,
e.g., United States v. Storer Broad. Co., 351 U.S. 192,
202-205 (1956). Those regulations have long imposed
limits on the number of radio or television stations a
single party may own, either nationally or in a local mar-
ket, as well as limits on cross-ownership of broadcast
stations and other media in the same market. See, e.g.,
ibid. (upholding ownership limits on radio and television
stations); NCCB, 436 U.S. at 793-802 (upholding prohibi-
tion on cross-ownership of daily newspapers and broad-
cast stations). Absent a showing that waiver of a rule is
warranted in a particular case, the Commission has
found proposed broadcast combinations that violate its
ownership limits to be inconsistent with the public inter-

4
est. See id. at 793; Storer Broad. Co., 351 U.S. at 205;
National Broad. Co. v. United States, 319 U.S. 190, 225
(1943) (NBC).
2. The Telecommunications Act of 1996 (1996 Act),
Pub. L. No. 104-104, 110 Stat. 56, directed the Commis-
sion to make a number of changes to its broadcast own-
ership rules. See id. § 202(a)-(f ), 110 Stat. 110-111. In
addition, Section 202(h) of the 1996 Act required the
Commission to review its ownership rules periodically
and to “repeal or modify any regulation it determines to
be no longer in the public interest.” 110 Stat. 112. Sec-
tion 202(h) originally directed the Commission to review
its ownership rules biennially. 110 Stat. 111. In 2004,
however, Congress amended the statute to provide for
Commission review every four years. See Departments
of Commerce, Justice, and State, the Judiciary, and Re-
lated Agencies Appropriations Act, 2004 (2004 Act), Pub.
L. No. 108-199, Div. B, § 629(3), 118 Stat. 100.
3. In September 2002, the Commission initiated its
third biennial proceeding under Section 202(h) to review
its broadcast ownership rules. 2002 Biennial Regula-
tory Review, 17 F.C.C.R. 18,503. On July 2, 2003, the
Commission released a report and order that, as rele-
vant here, (a) established a single new cross-media rule
to govern cross-ownership of daily newspapers, televi-
sion stations, and radio stations, and (b) modified two
other rules that limit common ownership of multiple
radio and multiple television stations in a local market.
2002 Biennial Regulatory Review, 18 F.C.C.R. 13,620
(2003 Order).
4. Petitions for review were filed in several circuits,
triggering a judicial lottery under 28 U.S.C. 2112(a)(3).
The Third Circuit was selected to review the Commis-
sion’s decision. In 2004, that court ruled that the Com-

5
mission’s limits on broadcast ownership do not violate
the First and Fifth Amendment rights of newspaper
owners and broadcasters. Prometheus Radio Project v.
FCC, 373 F.3d 372 (3d Cir. 2004), cert. denied, 545 U.S.
1123 (2005) (Prometheus I). The court explained that
petitioners’ First Amendment arguments were fore-
closed by NCCB, in which this Court upheld the ban on
newspaper-broadcast cross-ownership as “a reasonable
means of promoting the public interest in diversified
mass communications.” Id. at 401 (quoting NCCB, 436
U.S. at 802).
The court of appeals also stated that, even if NCCB
did not control, it would assess petitioners’ First
Amendment challenge under rational-basis review in
light of the continuing physical scarcity of broadcast
spectrum. Prometheus I, 373 F.3d at 402 (noting that
“many more people would like access to [broadcast spec-
trum] than can be accommodated”). Similarly, the court
concluded that petitioners’ equal protection claims were
foreclosed by this Court’s rejection in NCCB of an iden-
tical equal protection challenge to the newspaper-
broadcast cross-ownership restriction. Id. at 401-402.
The court added that the development of more media
outlets since NCCB was not a basis for reaching a differ-
ent result because it could not be “assumed that these
media outlets contribute significantly to viewpoint diver-
sity as sources of local news and information.” Id. at
401.After rejecting the constitutional challenges, the
court of appeals concluded on administrative-law
grounds that the Commission’s cross-media rule and
local television and radio rules should be remanded for
“additional justification or modification.” Prometheus I,
373 F.3d at 382. The court emphasized that it was not

6
finally determining whether the particular ownership
limits imposed by the Commission were permissible.
Instead, the court stated that the Commission would
“get[] another chance to justify its actions.” Id. at 382
n.3.25. Media General, Inc., the National Association of
Broadcasters, Tribune Company, the Newspaper Associ-
ation of America, and other parties filed petitions for a
writ of certiorari from the court of appeals’ decision in
Prometheus I. In addition, Sinclair Broadcast Group,
Inc. filed a cross-petition for certiorari. The petitions
argued, inter alia, that the Commission’s broadcast
ownership rules violate the First and Fifth Amendment
rights of newspaper owners and broadcast station li-
censees. This Court denied all of those petitions. Media
Gen., Inc. v. FCC, 545 U.S. 1123 (2005).
6. In July 2006, the Commission initiated its 2006
Quadrennial Review proceeding with a Further Notice
of Proposed Rule Making. 2006 Quadrennial Regula-
tory Review, 21 F.C.C.R. 8834. In addition to receiving
voluminous comments in response and holding hearings
around the country, the Commission conducted or com-
missioned ten studies and received numerous other
studies in the record of the proceeding.
In February 2008, the Commission issued an or-
der concluding the quadrennial review. Pet. App. 85a-
375a (2008 Order). In that order, the agency determined
that it should “modify the newspaper/broadcast cross-
ownership rule, and * * * generally retain the other
broadcast ownership rules currently in effect.” Id. at
90a. The Commission explained:
2 Chief Judge Scirica dissented from the court of appeals’ decision to
remand the FCC’s ownership rules. Prometheus I, 373 F.3d at 435.

7
By modestly loosening the 32-year prohibition on
newspaper/broadcast cross-ownership, our approach
balances the concerns of many commenters that we
not permit excessive consolidation with concerns of
other commenters that we afford some relief to as-
sure continued diversity and investment in local
news programming. We believe that the decisions
we adopt today serve our public interest goals, ap-
propriately take account of the current media mar-
ketplace, and comply with our statutory responsibili-
ties.
Id. at 94a-95a.
The Commission’s decisions on its various ownership
rules are described below.
Newspaper/Broadcast Cross-Ownership Rule. The
Commission reaffirmed its decision in the 2003 Order to
eliminate its longstanding blanket ban on newspaper/
broadcast cross-ownership. The Commission explained
that “[e]vidence in the record” of the 2006 proceeding,
including information documenting recent turmoil in the
media marketplace, “continues to support [our] earlier
decision that retention of a complete ban is not neces-
sary in the public interest as a result of competition,
diversity, or localism.” Pet. App. 113a; see id. at 120a-
139a. That record also persuaded the Commission that
the rule could be modified to provide benefits to consum-
ers and industry without impairing viewpoint diversity.
The Commission stated that its “new rule lifts the com-
plete ban but does so in a modest manner in order to
ensure both that our goals of competition, localism, and
diversity are not compromised and that we may achieve
the economic benefits of allowing certain combinations.”
Id. at 115a.

8
The revised newspaper/broadcast cross-ownership
rule adopted by the Commission established “a pre-
sumption that generally will permit certain newspaper/
broadcast station combinations in the largest 20 mar-
kets, and generally will preclude them in all other mar-
kets.” Pet. App. 115a. Specifically, the Commission es-
tablished a presumption that waiver of the newspaper/
broadcast cross-ownership ban would be in the public
interest (and thus permissible under the Commission’s
media ownership rules) when a daily newspaper seeks to
combine with a television station in one of the largest 20
markets and (1) the television station is not among the
top four ranked stations in the market, and (2) at least
eight “major media voices” would remain in the market
after the combination. Id. at 115a-116a. The Commis-
sion explained that, with two exceptions, it would “pre-
sume that all other proposed newspaper/broadcast sta-
tion combinations are not in the public interest.” Id. at
116a.3
Radio/Television Cross-Ownership Rule. The Com-
mission retained its then-current radio/television cross-
ownership rule, which limits the number of commercial
radio and television stations an entity may own in the
same market. See Pet. App. 199a-206a. Specifically, the
rule allows a party to own up to two television stations
(so long as permitted under the local television owner-
3 Under the first exception, the negative presumption would be re-
versed if a newspaper or broadcast station is “failed” or “failing,” as
determined by various criteria stated in the 2008 Order. See Pet. App.
175a-176a. Under the second, the negative presumption would be re-
versed when a proposed combination “initiates local news programming
of at least seven hours per week on a broadcast outlet that otherwise
was not offering local newscasts prior to the combined operations.” Id.
at 178a.

9
ship rule) and up to six radio stations (to the extent per-
mitted by the local radio ownership rule) in a market
where at least 20 independently owned media “voices”
would remain following a merger. 47 C.F.R. 73.3555(c)
(2002). In a market where parties may own a combi-
nation of two television stations and six radio stations,
the rule allows a party alternatively to own one tele-
vision station and seven radio stations. 47 C.F.R.
73.3555(c)(2)(i) (2002). A party may own up to two tele-
vision stations (as permitted under the current local
television ownership rule) and up to four radio stations
(as permitted under the local radio ownership rule)
in markets where, post-merger, at least ten independ-
ently owned media voices would remain. 47 C.F.R.
73.3555(c)(2)(ii) (2002). A combination of two television
stations (as permitted under the local television owner-
ship rule) and one radio station is allowed regardless
of the number of voices remaining in the market.
47 C.F.R. 73.3555(c)(2) (2002).
Local Television Ownership Rule. The Commission
also found that its restrictions on common ownership of
television stations in local markets continue to be neces-
sary “in order to preserve adequate levels of competition
within local television markets.” Pet. App. 207a; see
generally Gov’t Br. in Opp., National Ass’n of Broad-
casters v. FCC, No. 11-698 (Gov’t 11-698 Opp.). Under
that rule, an entity may own two television stations in
the same television market if: (1) certain specified sig-
nal coverage areas, known as the “Grade B contours,” of
the stations do not overlap; or (2) at least one of the sta-
tions in the combination is not ranked among the top
four stations in terms of audience share, and at least
eight independently owned and operating commercial or
non-commercial full-power broadcast television stations

10
would remain in the market after the combination.
47 C.F.R. 73.3555(b) (2009).
Local Radio Ownership Rule. The Commission also
concluded that its local radio ownership rule remains
necessary in the public interest to protect competition in
local radio markets. Pet. App. 227a. Under that rule, an
entity may own, operate, or control (1) up to eight com-
mercial radio stations, not more than five of which are in
the same service (i.e., AM or FM), in a radio market
with 45 or more full-power, commercial and noncommer-
cial radio stations; (2) up to seven commercial radio sta-
tions, not more than four of which are in the same ser-
vice, in a radio market with between 30 and 44 (inclu-
sive) full-power, commercial and noncommercial radio
stations; (3) up to six commercial radio stations, not
more than four of which are in the same service, in a
radio market with between 15 and 29 (inclusive) full-
power, commercial and noncommercial radio stations;
and (4) up to five commercial radio stations, not more
than three of which are in the same service, in a radio
market with 14 or fewer full-power, commercial and
noncommercial radio stations, except that an entity may
not own, operate, or control more than 50% of the sta-
tions in such a market. See 47 C.F.R. 73.3555(a) (2009).
Dual Network Rule. Finally, the Commission re-
tained the “dual network” rule, 47 C.F.R. 73.658(g),
which “permits common ownership of multiple broadcast
networks, but prohibits a merger between or among the
‘top four’ networks,” i.e., ABC, CBS, Fox, and NBC.
Pet. App. 258a.
7. Multiple parties challenged the 2008 Order in
several courts of appeals. Those petitions for review
ultimately were consolidated in the Third Circuit. On
July 7, 2011, that court affirmed the 2008 Order, with

11
the exception of the newspaper/broadcast cross-
ownership rule. Pet. App. 1a-84a (Prometheus II).4
The court of appeals’ rulings on the various owner-
ship rules are described below.
Newspaper/Broadcast Cross-ownership Rule. Par-
ties challenging the newspaper/broadcast cross-
ownership rule contended that the Commission had
erred in not relaxing the rule further, that the rule vio-
lated the First and Fifth Amendments, and that the re-
cord compiled in the proceeding below did not support
the FCC’s revised rule. Other parties argued that the
Commission had failed to provide adequate notice and
opportunity to comment on its revision of the rule. Be-
cause the court concluded that the FCC had failed to
satisfy the notice-and-comment requirements of the Ad-
ministrative Procedure Act (APA), 5 U.S.C. 553, it did
not reach any of the nonconstitutional challenges to the
substance of the rule. Pet. App. 22a.
The court of appeals found that the language in the
Commission’s Notice of Proposed Rulemaking was “too
general and open-ended to have fairly apprised the pub-
lic of the Commission’s new approach to cross-owner-
ship.” Pet. App. 39a. The court indicated that the Com-
mission could “fulfill[] its obligations on remand in the
course of [its] ongoing review” of media ownership rules
in the 2010 Quadrennial Review proceeding. Id. at 40a
n.26.
Radio/Television Cross-ownership Rule. The court
of appeals found that the Commission had “provided a
reasoned explanation of its decision” to retain its ra-
4 The Court also remanded the Commission’s action in a separate or-
der dealing with broadcast ownership by minorities and women. Pet.
App. 64a-79a. The petitions do not raise any issue concerning that as-
pect of the court’s decision.

12
dio/television cross-ownership rule. Pet. App. 46a. The
court explained that, based on the administrative record
compiled in the proceeding, the Commission had “plau-
sibly justified its position that diversification of owner-
ship would enhance the possibility of achieving greater
diversity of viewpoints.” Id. at 47a (internal quotation
marks and citation omitted). The court also rejected
arguments that the rule was no longer in the public in-
terest in light of the growth of diversity and competi-
tiveness of the media market. The court noted that the
FCC had acknowledged this trend, but had found that
“traditional media * * * are the most frequently used
and most important sources of local and national news.”
Ibid. (quoting id. at 163a).
The court of appeals held that the Commission had
reasonably concluded, based on the record evidence,
that “new media such as the Internet and cable still do
not outrank newspapers and broadcast stations as
sources of local news.” Pet. App. 48a. The court found
that the FCC “was justified in treating broadcasters
differently than cable operators (which face no cross-
ownership restrictions but must comply with local own-
ership rules) because ‘cable television is not nearly as
significant a source of local news as the broadcast me-
dia,’ and therefore ‘mergers involving [those] systems do
not pose a serious threat to viewpoint diversity.’ ” Ibid.
(citation omitted). Finally, the court rejected the argu-
ment that the radio/television cross-ownership rule is
akin to the cable/broadcast cross-ownership rule invali-
dated in Fox Television Stations, Inc. v. FCC, 280 F.3d
1027, 1049 (D.C. Cir.), modified on reh’g, 293 F.3d 537
(D.C. Cir. 2002) (Fox). The court explained that the rule
at issue here is distinguishable because it “permits
cross-ownership within limits.” Pet. App. 48a. In Fox,

13
by contrast, “cross-ownership was banned entirely,” and
it was this across-the-board prohibition that the Fox
court found arbitrary and capricious. Ibid.
Local Television Ownership Rule. The court of ap-
peals affirmed the Commission’s decision to retain the
pre-2003 local television ownership rule, which permits
an entity to own two television stations in the same mar-
ket in certain circumstances. Pet. App. 49a-56a. This
represented a change of position from the Commission’s
2003 determination to relax that rule. See generally
Gov’t 11-698 Opp. The court found that the Commission
had adequately explained its change of position, noting
that the agency had not “ignore[d] the ‘explosion’ of me-
dia outlets in the industry; it simply concluded that, de-
spite these changes, the rule remained ‘necessary in the
public interest to protect competition for viewers and in
local television advertising markets.’ ” Pet. App. 51a
(citation omitted).5
Local Radio Ownership Rule. In the 1996 Act, Con-
gress had set initial limits on the number of commercial
radio stations that a single entity could own, operate, or
control. The Commission retained those limits in the
2008 Order. The Court upheld, as reasonable, the Com-
mission’s explanation that relaxing the rule and permit-
ting further ownership consolidation would be inconsis-
tent with its “public interest objectives of ensuring that
the benefits of competition and diversity are realized in
local radio markets.” Pet. App. 57a (quoting id. at 234a).
Constitutionality of Media Ownership Rules. The
court of appeals rejected petitioners’ contentions that all
5 In a separate petition for a writ of certiorari, the National Associa-
tion of Broadcasters seeks review of only this portion of the court of
appeals’ decision. The government is today filing a separate brief in
opposition to that petition.

14
of the Commission’s media ownership rules are unconsti-
tutional. The court adhered to its prior conclusion in
Prometheus I that the “abundance of non-broadcast me-
dia does not render the broadcast spectrum any less
scarce.” Pet. App. 62a (quoting Prometheus I, 373 F.3d
at 402). The court reiterated that the “Supreme Court’s
justification for the scarcity doctrine remains as true
today as it was in 2004—indeed, in 1975—‘many more
people would like to access the [broadcast spectrum]
than can be accommodated.’” Id. at 62a-63a (brackets in
original) (quoting Prometheus I, 373 F.3d at 402).
The court of appeals agreed with the Commission
that the media ownership rules “do not violate the First
Amendment because they are rationally related to sub-
stantial government interests in promoting competition
and protecting viewpoint diversity.” Pet. App. 63a. The
court explained that “[t]hese rules apply regardless
of the content of programming.” Ibid. The court also
rejected the contention that the local television owner-
ship rule violates the First Amendment because it sin-
gles out broadcast television stations. Ibid. (citing Sin-
clair Broad. Group v. FCC, 284 F.3d 148, 168 (D.C. Cir.
2002)). The court similarly rejected the argument that
the newspaper/broadcast cross-ownership rule violates
newspaper owners’ right to equal protection under the
Fifth Amendment by treating newspapers differently
from other media. Ibid. The court explained that this
Court in NCCB had rejected essentially the same equal
protection argument. Id. at 63a-64a.
8. Pursuant to Section 202(h), the Commission has
continued to examine its media ownership rules qua-
drennially. On May 25, 2010, the Commission issued
a Notice of Inquiry for its fifth such review. 2010 Qua-
drennial Regulatory Review, 25 F.C.C.R. 6086. In sup-

15
port of its current proceeding, the Commission has com-
missioned several economic studies to evaluate the cur-
rent marketplace and the state of the media industry,
see Public Notice DA 10-1084, 25 F.C.C.R. 7514 (2010),
and hundreds of parties have filed comments. The Com-
mission recently issued a Notice of Proposed Rule-
making (NPRM), proposing a number of changes to
its ownership rules in order “to take account of new
technologies and changing marketplace conditions while
ensuring that [the] rules continue to serve [our] public
interest goals of competition, localism and diversity.”
2010 Quadrennial Regulatory Review, 77 Fed. Reg.
2868 (Jan. 19, 2012). In that NPRM, the Commission
proposed to eliminate the radio/television cross-
ownership rule and to retain other rules discussed
above, with some modifications. Id. at 2869.

DISCUSSION

Petitioners ask the Court to overrule a number of its
precedents and radically alter longstanding communica-
tions policy. Petitioners’ sweeping contentions lack
merit, and there is no conflict in the circuits on any of
the claims petitioners press. In 2005, the Court denied
multiple petitions raising essentially the same argu-
ments (see p. 6, supra), and there is no reason for a dif-
ferent result here.
Moreover, because the court of appeals vacated and
remanded the newspaper/broadcast cross-ownership
rule (the focus of most of petitioners’ attention), petition-
ers’ First and Fifth Amendment challenges to that rule
are premature. The Commission is currently engaged in
a rulemaking to respond to the court’s remand. In that
proceeding, the Commission can take account of market
and technological developments that have occurred since

16
the order at issue here was issued in 2008. In light of
that new proceeding and the staleness of the record in
this case, this Court’s review is not warranted. Rather,
this Court should hold these petitions pending its deci-
sion in FCC v. Fox Television Stations, Inc., No. 10-1293
(argued Jan. 10, 2012), and then dispose of them as ap-
propriate.
1. The court of appeals applied settled law when it
concluded that the FCC’s broadcast ownership rules
must be upheld under the First Amendment if they are
“rationally related to substantial governmental inter-
ests.” Pet. App. 63a. Congress “has power to regulate
the use of [broadcast spectrum as] a scarce and valuable
national resource,” and to “ensure through the regula-
tory oversight of the FCC that only those who satisfy
the ‘public interest, convenience, and necessity’ are
granted a license to use radio and television broadcast
frequencies.” FCC v. League of Women Voters, 468 U.S.
364, 376 (1984) (quoting 47 U.S.C. 309(a)). As this Court
stated in NCCB, “nothing in the First Amendment
* * * prevent[s] the Commission from allocating li-
censes so as to promote the ‘public interest’ in diversifi-
cation of the mass communications media.” FCC v. Na-
tional Citizens Comm. for Broad., 436 U.S. 775, 799
(1978). “Denial of a station license” on public interest
grounds, “if valid under the Act, is not a denial of free
speech.” National Broad. Co. v. United States, 319 U.S.
190, 227 (1943) (NBC ).
Contrary to the Tribune Company petitioners’ asser-
tion, the Third Circuit’s decision is not in “disagreement
with the D.C. Circuit” (11-696 Pet. 19) regarding the
First Amendment analysis applicable to the FCC’s
ownership regulations. Although petitioners cite (11-696
Pet. 17-19) dicta and dissenting opinions of individual

17
judges, who have expressed a range of views on the
proper First Amendment analysis of broadcast regula-
tion, the critical views cited by petitioners were gener-
ally directed at content regulation, not ownership regu-
lations like those at issue here.6 Both the Third and
D.C. Circuits have applied the same, established stan-
dard when reviewing the FCC’s broadcast ownership
regulations. See Fox Television Stations, Inc. v. FCC,
280 F.3d 1027, 1046 (D.C. Cir. 2002) (“the deferential
review undertaken by the Supreme Court in NCCB and
NBC is also appropriate here”); Sinclair Broad. Group,
Inc. v. FCC, 284 F.3d 148, 168 (D.C. Cir. 2002) (“Sinclair
does not have a First Amendment right to hold a broad-
cast license where it would not [under the Commission’s
ownership regulations] satisfy the public interest.”); see
also American Family Ass’n v. FCC, 365 F.3d 1156,
1168 (D.C. Cir.) (“It is well established that content-
neutral ‘structural’ regulation of the radio and television
broadcast spectrum * * * is generally subject only to
rational basis scrutiny.”) (citation omitted), cert. denied,
543 U.S. 1004 (2004). There is no conflict in the circuits
on the constitutional issues petitioners present.
The Third Circuit held (Pet. App. 63a), and petitioner
Media General effectively concedes (11-691 Pet. 16), that
petitioners’ constitutional challenges are foreclosed by
this Court’s decision in NCCB. Petitioners nonetheless
contend (11-691 Pet. 16-24; 11-696 Pet. 20-21) that the
growth in the number of licensed broadcast stations
6 The only court of appeals decision cited by the Tribune Company
petitioners concerned whether the FCC could engage in “political
content regulation” of broadcasting speech, see Telecommunications
Research & Action Ctr. v. FCC, 801 F.2d 501, 506 (D.C. Cir. 1986), cert.
denied, 482 U.S. 919 (1987), and the court’s discussion focused on that
issue.

18
since NCCB, and the development of non-broadcast me-
dia outlets, justify overruling NCCB and mandating
heightened First Amendment scrutiny of the FCC’s
ownership regulations. “[E]ven in constitutional cases,”
however, stare decisis “carries such persuasive force”
that the Court has “always required a departure from
precedent to be supported by some ‘special justificat-
ion.’ ” United States v. IBM Corp., 517 U.S. 843, 856
(1996) (brackets in original; citation omitted). That
principle is especially pertinent here because petitioners
seek the overruling of not just one precedent, but sev-
eral. “[T]he ‘scarcity’ rationale associated with Red
Lion Broadcasting Co. v. FCC,” 395 U.S. 367 (1969), and
NCCB was “in fact * * * first set forth” in NBC, su-
pra, nearly 70 years ago. Fox, 280 F.3d at 1045. Peti-
tioners fail to provide a “special justification,” IBM
Corp., 517 U.S. at 856 (citation omitted), for overruling
multiple decisions of this Court.
The Third Circuit correctly rejected the contention
that changed market conditions have undermined the
reasoning of NCCB. Pet. App. 62a-63a. Deference to
the FCC’s licensing policies arises from the bedrock
principle that broadcasting over radio frequencies, “un-
like other modes of expression, * * * is [necessarily]
subject to governmental regulation” because there is a
“fixed natural limitation upon the number of stations
that can operate without interfering with one another.”
NBC, 319 U.S. at 213, 226; see NCCB, 436 U.S. at 799
(“Because of problems of interference between broad-
cast signals,” only “a finite number of frequencies”—
“far exceeded by the number of persons wishing to
broadcast”—“can be used productively.”); Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637 (1994) (“The
justification for our distinct approach to broadcast regu-

19
lation rests upon the unique physical limitations of the
broadcast medium.”). In the Communications Act, Con-
gress addressed those physical limits by exercising fed-
eral “control * * * over all the channels of radio trans-
mission,” 47 U.S.C. 301, and by vesting in the Commis-
sion the responsibility for ensuring that access to broad-
cast spectrum is provided only in accordance with the
“public interest.” 47 U.S.C. 301, 309(a), 310(d); see
NBC, 319 U.S. at 214-215, 226.
The Commission’s lawful exercise of its licensing au-
thority does not violate the constitutional rights of news-
paper owners or others who may be denied broadcast
licenses because the “right of free speech does not in-
clude * * * the right to use the facilities of radio with-
out a license.” NBC, 319 U.S. at 226-227; see NCCB, 436
U.S. at 799. Although there are today more broadcast
and non-broadcast outlets than there were when the
Court decided NBC and NCCB, it remains the case that
“many more people would like to access the [broadcast
spectrum] than can be accommodated.” Pet. App. 62a-
63a (brackets in original) (quoting Prometheus Radio
Project v. FCC, 373 F.3d 372, 402 (3d Cir. 2004), cert.
denied, 545 U.S. 1123 (2005)); see Turner, 512 U.S. at
637 (noting that there are “more would-be broadcasters
than frequencies available in the electromagnetic spec-
trum”). The core reason for deferential review of the
Commission’s licensing policies therefore continues to
apply with full force.7
7 Contrary to petitioner Media General’s contention (11-691 Pet. 18-
19), this Court’s settled analysis of broadcast regulation is entirely
consistent with the Court’s determinations in Turner and Reno v.
ACLU, 521 U.S. 844 (1997), not to apply the analytical framework of
NBC and NCCB to regulation of cable television and the Internet. As
the Court explained, those other media do not present the same

20
To be sure, the Commission in its administration of
communications policy may treat the growth in media
outlets as relevant to the choice of appropriate limits
on common ownership. For instance, the Commission
concluded in this case that changes in marketplace
conditions, including the fact that “the largest markets
contain a robust number of diverse media sources,” jus-
tified relaxation of the prior blanket ban on newspaper-
broadcast combinations. Pet. App. 114a-115a; see id. at
116a-139a (discussing marketplace developments). The
growth of alternative media outlets does not logically
imply, however, that this Court should overturn its set-
tled constitutional framework for analyzing the regula-
tion of scarce broadcast spectrum.
2. Instead of grappling with this Court’s controlling
decisions in NCCB and NBC, petitioners focus much of
their attack on the Court’s decision in Red Lion Broad-
casting Co. v. FCC, 395 U.S. 367 (1969) (Red Lion). In
Red Lion, this Court considered a First Amendment
challenge to the FCC’s former “fairness doctrine,”
which required broadcasters to “give adequate coverage
to public issues” that “accurately reflects * * * oppos-
ing views.” Id. at 377. The Court recognized that the
fairness doctrine imposed on broadcasters a duty to
air views and opinions with which they may not have
physical scarcity and interference concerns that necessitate govern-
mental licensing of broadcast spectrum. See Turner, 512 U.S. at 639
(“given the rapid advances in fiber optics and digital compression tech-
nology,” cable does not suffer from broadcasting’s “inherent limita-
tions,” and there is no “danger of physical interference between two
cable speakers attempting to share the same channel.”); Reno, 521 U.S.
at 870 (noting that the Internet “can hardly be considered a ‘scarce’
expressive commodity” because “[i]t provides relatively unlimited, low-
cost capacity for communications of all kinds”).

21
agreed. Id. at 392. The Court concluded, however, that
“licensees given the privilege of using scarce radio fre-
quencies” may be required “to share [their] fre-
quenc[ies] with others” and to act as “prox[ies] or fidu-
ciar[ies] with obligations to present those views and
voices which are representative of [their] commu-
nit[ies].” Id. at 389, 394.
The Tribune Company petitioners assert (11-696 Pet.
22) that, in light of Congress’ adoption in 1993 of statu-
tory provisions providing for auctions to allocate new
licenses, “the time for a new constitutional regime has
arrived.” Ibid. That is so, petitioners contend, because
Congress has “displac[ed] the FCC’s role in choosing
among applicants for the same facilities, a role that un-
derpinned the FCC’s authority to impose ownership re-
strictions.” Ibid. (internal quotation marks and citation
omitted). That argument lacks merit. The provisions
that authorize the auctioning of licenses do not “limit or
otherwise affect the requirements of subsection (h) of
this section, section 301, 304, 307, 310, or 606 of this ti-
tle, or any other provisions of this [Act].” 47 U.S.C.
309( j)(6)(B). The cited provisions specifically address
the Commission’s duty to grant broadcast station appli-
cations only after a determination that the “public con-
venience, interest, or necessity will be served thereby.”
47 U.S.C. 307(a); see 47 U.S.C. 301, 310(d). In addition
to that clear statutory language, procedures adopted by
the FCC to implement the statute show that auctions
have not displaced the FCC’s role in choosing appli-
cants. See Implementation of Section 309( j) of the
Communications Act, 13 F.C.C.R. 15920 (1998),
amended on recons., at 14 F.C.C.R. 8724 (1999), aff ’d,
Orion Commc’ns, Ltd. v. FCC, 213 F.3d 761 (D.C. Cir.
2000) (per curiam).

22
Equally unavailing is petitioners’ related argument
(11-696 Pet. 22-23) that Congress “does not believe that
spectrum remains ‘scarce’ within the meaning of Red
Lion because it ordered the FCC to reclaim spectrum
that had been allocated predominantly for broadcast
uses.” Ibid. Congress’s directive that the FCC “re-
claim” spectrum made available as a result of the transi-
tion to digital television, see 47 U.S.C. 336(c), demon-
strates exactly the opposite—that demand for radio
spectrum outstrips supply. See, e.g., FCC, Connecting
America: The National Broadband Plan 81-82 (2010).
The continuing high demand for broadcast spectrum is
also reflected in recent legislation authorizing the Com-
mission to establish incentive auctions for television
broadcasting spectrum that would allow television li-
censees to return their spectrum assignments to the
agency, which can then auction the spectrum rights for
other uses and share the auction proceeds with the for-
mer licensee. See Middle Class Tax Relief and Job Cre-
ation Act of 2012, Pub. L. No. 112-96, § 6403, 126 Stat.
225; see pp. 28-29, infra. The Congressional Budget
Office (CBO) estimated that such auctions would pro-
duce approximately $24.5 billion. See CBO, S. 911 Pub-
lic Safety Spectrum and Wireless Innovation Act (July
20, 2011).
In questioning the deferential review that courts
have traditionally accorded the FCC’s broadcast owner-
ship rules, petitioners also rely on the FCC’s own deter-
mination in 1987 that the scarcity of broadcast frequen-
cies no longer justified retention of the fairness doc-
trine, see Syracuse Peace Council, 2 F.C.C.R. 5043
(1987), aff’d, 867 F.2d 654 (D.C. Cir. 1989), cert. denied,
493 U.S. 1019 (1990). 11-691 Pet. 22-23; 11-696 Pet. 21-
22. Petitioners’ reliance on that FCC decision is mis-

23
placed. In repealing its fairness doctrine, the Commis-
sion determined that, in light of the development of new
media outlets, spectrum scarcity no longer justified the
“intrusive type of content-based regulation” that the
fairness doctrine imposed. Syracuse Peace Council,
2 F.C.C.R. at 5054 (¶ 76); see id. at 5054 (¶ 72), 5068
nn.201-202. The Commission stressed, however, that
“technological advancements * * * have not eliminated
spectrum scarcity,” id. at 5055 (¶ 78), and that its analy-
sis of the constitutionality of the fairness doctrine had
no “relevance to the Commission’s allocational and li-
censing function.” Id. at 5069 n.204.8
Contrary to petitioners’ contentions (11-691 Pet. 18,
23; 11-696 Pet. 21, 22), Congress has not sent any “sig-
nal” that the FCC’s ownership regulations should be
subject to a higher level of scrutiny under the First
Amendment. Congress has neither repealed, nor
amended in any relevant respect, the Communications
Act provisions that authorize the Commission to regu-
8 The Tribune Company petitioners also rely (11-696 Pet. 23-24) on
the Commission’s determination that relaxation of the prior newspaper-
broadcast cross-ownership prohibition can produce public-interest
benefits in connection with local news coverage. This Court recognized
in NCCB, however, that the Commission must balance the goal of
promoting diversity of ownership with the “sometimes conflicting”
public-interest goal of ensuring “the best practicable service to the
public.” 436 U.S. at 782 (quoting Policy Statement on Comparative
Broadcast Hearings, 1 F.C.C.2d 393, 394 (1965)). The Communications
Act does not require the Commission to give either policy “controlling
weight in all circumstances,” but leaves that “weighing of policies”
under the public-interest standard to the Commission’s judgment “in
the first instance.” Id. at 810. In this case, the Commission balanced
the public-interest benefits from broadcaster/newspaper combinations
in larger markets against the threat to diversity that can result from
such combinations in smaller markets. Pet. App. 139a-143a, 153a-156a.

24
late the distribution of broadcast licenses in the public
interest. See p. 2, supra. Nor has it enacted any statute
that directs reviewing courts to apply heightened scru-
tiny to the FCC’s ownership regulations. To the con-
trary, Congress has itself enacted national limitations on
ownership of both radio and television stations. See
1996 Act § 202(b), 110 Stat. 110 (establishing local radio
ownership limits); 2004 Act § 629, 118 Stat. 99 (estab-
lishing national television ownership limit).
3. There is likewise no merit to petitioners’ argu-
ments (11-691 Pet. 27-31; 11-696 Pet. 24-25) that the
FCC’s broadcast ownership rules should be subject to
heightened scrutiny as content-based restrictions on
speech. The “principal inquiry in determining content
neutrality * * * is whether the government has
adopted a regulation of speech because of disagreement
with the message it conveys.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989); cf. Turner, 512 U.S. at
643 (“[L]aws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed
are in most instances content neutral.”). This Court and
lower courts have consistently and correctly treated the
Commission’s broadcast ownership regulations as
content-neutral because the regulations do not turn on
the content of any message an applicant for a broadcast
license may seek to convey. NCCB, 436 U.S. at 801
(holding that newspaper/television cross-ownership reg-
ulations “are not content related”); Fox, 280 F.3d at
1046 (ownership regulations are “structur[al],” not
“content-based”); see NBC, 319 U.S. at 226.
Because the FCC’s structural ownership regulations
are not content-based, the Tribune Company petitioners
are also wrong in contending (11-696 Pet. 26) that the
court of appeals’ decision as to the appropriate standard

25
of review conflicts with this Court’s decision in League
of Women Voters. That decision involved a statutory
ban on a specific type of broadcast programming—
editorials broadcast by non-commercial educational sta-
tions that received grant funds from the Corporation for
Public Broadcasting. “[T]he scope of [the statute’s] ban
[was] defined solely on the basis of the content of the
suppressed speech.” 468 U.S. at 383. The decision in
League of Women Voters therefore does not apply to the
purely structural and content-neutral regulations at
issue here.
The Tribune Company petitioners also contend that
the Commission’s ownership rules “are unconstitutional
attempts * * * to stage-manage the public debate by
suppressing the speech of some speakers in order to
enhance the speech of others.” 11-696 Pet. 25-26 (citing
Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (per curiam)).
This Court rejected the same argument in NCCB,
explaining that the denial of “a station license because
‘the public interest’ requires it ‘is not a denial of free
speech.’” NCCB, 436 U.S. at 800 (citation omitted). The
language in Buckley on which petitioners rely pertained
to “the ancillary governmental interest in equalizing the
relative ability of individuals and groups to influence the
outcome of elections.” 424 U.S. at 48. The Commission’s
media ownership regulations do not involve core political
speech, are not content-based, and have been upheld
repeatedly by this Court against First Amendment chal-
lenge.
4. Petitioners contend (11-691 Pet. 24-27; 11-696
Pet. 30-32) that the newspaper/broadcast cross-
ownership rule violates equal protection principles be-
cause it limits combinations among daily newspapers,
television stations, and radio stations, but not among

26
cable systems, Internet websites, and other information-
delivery technologies. Those contentions lack merit and
do not warrant this Court’s review.
a. As an initial matter, because this case is in an
interlocutory posture with respect to the newspaper-
broadcast cross-ownership rule, it does not provide an
appropriate vehicle for addressing petitioners’ equal
protection (or First Amendment) claims regarding that
rule. See, e.g., Brotherhood of Locomotive Firemen v.
Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per
curiam). Based on its conclusion that the Commission
had violated the notice requirements of the APA, the
court of appeals vacated the newspaper/broadcast cross-
ownership rule and remanded for further FCC proceed-
ings. Pet. App. 22a-40a. As this Court has long empha-
sized, prudential considerations strongly counsel against
unnecessary pronouncements on constitutional matters.
See, e.g., Spector Motor Serv., Inc. v. McLaughlin, 323
U.S. 101, 105 (1944) (“If there is one doctrine more
deeply rooted than any other in the process of constitu-
tional adjudication, it is that we ought not to pass on
questions of constitutionality * * * unless such adjudi-
cation is unavoidable.”). Until those remand proceed-
ings have been completed, review by this Court would be
premature.9
9 Nor does this case squarely present the question whether the prior
newspaper/ broadcast cross-ownership rule would satisfy the new, more
stringent constitutional standard petitioners advocate. The old rule was
not directly challenged in this proceeding. Although that rule is tem-
porarily back in force due to the Third Circuit’s vacatur of the revised
rule, the current cross-ownership rule may be modified as a result of
the remand proceeding that is currently underway. Indeed, the Com-
mission has proposed such a modification in the 2010 Quadrennial
Notice of Proposed Rulemaking. See p. 15, supra. Petitioners’ consti-
tutional challenges are thus in effect directed to a future rule—as yet

27
b. In any event, “the fact that a law singles out a
certain medium” for different treatment does not by
itself establish a constitutional concern. Turner, 512
U.S. at 660. Such distinctions are permitted when they
are “ ‘justified by some special characteristic of ’ the
particular medium being regulated.” Id. at 660-661
(quoting Minneapolis Star & Tribune Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575, 585 (1983)). The
Commission determined that because daily newspapers
and broadcast stations are the media platforms that
Americans turn to most often for local news and infor-
mation, the public-interest goal of promoting diversity
of ownership and viewpoint is more affected by consoli-
dation among broadcast stations and newspapers than
by combinations involving other media. See Pet. App.
163a (noting “relatively unanimous support” for the con-
clusion that “consumers continue predominantly to get
their local news and information from daily newspapers
and broadcast television”); see also 2003 Order,
18 F.C.C.R. at 13,797 (¶ 452) (reaching same conclusion
based on record in prior media ownership review pro-
ceeding).
Petitioners contend (11-691 Pet. 26; 11-696 Pet. 31)
that Fifth Amendment equal protection principles
required the Commission to apply the newspaper/
broadcast cross-ownership rule to cable systems and
Internet websites. The court of appeals in Prometheus I
correctly rejected that argument, which ignores the par-
ticular characteristics of those media and the record
before the Commission. While recognizing that “there
are more media outlets today * * * than there were in
unadopted—that the Commission may or may not choose to promulgate
on remand.

28
1978 when NCCB was decided,” the court was not per-
suaded that these new non-broadcast media “contribute
significantly to viewpoint diversity as sources of local
news and information.” 373 F.3d at 401. The court of
appeals reached the same conclusion in this case. Pet.
App. 63a-64a. The record before the Commission indi-
cates that daily newspapers remain a much more promi-
nent source of local news than cable television, the
Internet, or any other non-broadcast media. See id. at
162a-167a. Because other non-broadcast media are “not
similarly situated” to newspapers, petitioners’ equal
protection claim fails. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
5. Finally, plenary review is unwarranted in light of
newly enacted legislation that has the potential to alter
the television marketplace in ways that could affect fu-
ture regulation. The Middle Class Tax Relief and Job
Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156,
which became law on February 22, 2012, authorizes the
Commission to allow television licensees to return their
spectrum assignments to the agency, which can then
auction the spectrum rights for other uses, such as wire-
less telecommunications services, and share the auction
proceeds with the former licensee. See, e.g., id. § 6403,
126 Stat. 225. Although the new statute is unlikely to
have an immediate impact on the television marketplace,
any reclamation of spectrum in the longer term could
reduce the number of broadcast television stations
across the country and affect how consumers access me-
dia in those markets. The option to return a license in
exchange for money may also alter the economics of
television markets. While it is too early to predict any
particular effect of the new legislation, the possibility of

29
future changes in the television industry also weighs
against further review here.
6. Although plenary review of these petitions is not
warranted, the Court should hold them pending its deci-
sion in FCC v. Fox Television Stations, Inc., No. 10-1293
(argued Jan. 10, 2012), and then dispose of them as ap-
propriate. See 11-691 Pet. 24; 11-696 Pet. 30 n.8, 33
(suggesting hold for Fox if the Court does not grant ple-
nary review). Some respondents in Fox have argued
that “the scarcity doctrine has no continuing validity, if
it ever did.” Br. of Fox Television Stations 36, Fox, su-
pra (No. 10-1293); see Br. of ABC, Inc. 50-51 n.24, Fox,
supra (No. 10-1293) (suggesting that Red Lion be over-
ruled). The Court’s decision in Fox therefore may shed
light on the proper analysis of petitioners’ constitutional
claims.

30

CONCLUSION

The petitions for a writ of certiorari should be held
pending this Court’s decision in FCC v. Fox Television
Stations, Inc., No. 10-1293 (argued Jan. 10, 2012), and
then disposed of as appropriate.
Respectfully submitted.*
SRI SRINIVASAN*
AUSTIN C. SCHLICK
Acting Solicitor General
General Counsel

PETER KARANJIA
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
C. GREY PASH, JR.
Counsel
Federal Communications
Commission
MARCH 2012
* The Solicitor General is recused in this case.

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