Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

NAB v. FCC & USA, No. 11-698 (Sup. Ct.)

Download Options

Released: March 7, 2012

No. 11-698

In the Supreme Court of the United States
NATIONAL ASSOCIATION OF BROADCASTERS,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

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
JOEL MARCUS
Counsel
Federal Communications
Commission
Washington, D.C. 20554

QUESTION PRESENTED

Whether the court of appeals correctly upheld the
Federal Communications Commission’s local television
ownership rule, which implements a longstanding policy
of limiting the number of television station licenses in a
local market a single entity may own or control.
(I)

TABLE OF CONTENTS

Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF AUTHORITIES

Cases:
Bucks County Cable TV, Inc. v. United States,
427 F.2d 438 (3d Cir.), cert. denied, 400 U.S.
831 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cellco P’ship v. FCC, 357 F.3d 88 (D.C. Cir. 2004) . . . . . . 11
FCC v. Fox Television Stations, Inc., 556 U.S. 502
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
FCC v. National Citizens Comm. for Broad., 436 U.S.
775 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11
Genesee Radio Corp., 5 F.C.C. 183 (1938) . . . . . . . . . . . . . . 3
Prometheus Radio Project v. FCC, 373 F.3d 372
(3d Cir. 2004), cert. denied, 545 U.S. 1123 (2005) . . . 6, 14
Securities & Exch. Comm’n v. Chenery Corp.,
332 U.S. 194 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Sinclair Broadcast Group, Inc. v. FCC, 284 F.3d 148
(D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 9, 10, 11
Wisniewski v. United States, 353 U.S. 901 (1957) . . . . . . . 14
(III)

IV
Statutes, regulations and rule:
Page
Communications Act of 1934, 47 U.S.C. 151 et seq. . . . . . . . 2
47 U.S.C. 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 309(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 309(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 309(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
47 U.S.C. 310(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appro-
priations Act, 2004, Pub. L. No. 108-199, § 629(3),
118 Stat. 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Middle Class Tax Relief and Job Creation Act of
2012, Pub. L. No. 112-96, 126 Stat. 156 . . . . . . . . . . . . . 15
§ 6403, 126 Stat. 225 . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
§ 202(a)-(f), 110 Stat. 110-111 . . . . . . . . . . . . . . . . . . . . 3
§ 202(c)(2), 110 Stat. 111 . . . . . . . . . . . . . . . . . . . . . . . . 3
§ 202(h), 110 Stat. 111 . . . . . . . . . . . . . . . . 4, 5, 8, 11, 12
47 C.F.R.:
Section 73.683 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 73.3555 n.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 73.3555(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Miscellaneous:
Amendment of Sections 73.35, 73.240, and 73.636 of
the Commission’s Rules Relating to Multiple
Ownership of Standard, FM and Television
Broadcast Stations
, 45 F.C.C. 1476 (1964) . . . . . . . . . . . 3

V
Miscellaneous—Continued: Page
Public Notice DA 10-1084, 25 F.C.C.R. 7514 (2010) . . . . . . 8
Review of the Commission’s Regulations Governing
Television Broadcasting, 14 F.C.C.R. 12,903
(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14
2002 Biennial Regulatory Review, 18 F.C.C.R. 13,620
(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
2010 Quadrennial Regulatory Review:
25 F.C.C.R. 6086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
77 Fed. Reg. (Jan. 19, 2012):
p. 2868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
pp. 2871-2877 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
p. 2872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

In the Supreme Court of the United States
No. 11-698
NATIONAL ASSOCIATION OF BROADCASTERS,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

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.

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.
1 All “Pet. App.” citations are to the appendix to the petition for a
writ of certiorari in Tribune Co. v. Federal Communications Commis-
sion, No. 11-696.
(1)

2
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. In order to “maintain the control of the United
States over all the channels of radio transmission,” the
Act requires all persons seeking to use the electromag-
netic spectrum, including those wishing to engage in
radio or television broadcasting, to obtain a limited-
term license from the Federal Communications Com-
mission (FCC or Commission). 47 U.S.C. 301. The Act
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 license, the Commission must de-
termine that such action would serve the “public inter-
est, convenience, and necessity.” 47 U.S.C. 309(a),
310(d); see 47 U.S.C. 309(k). In making that determina-
tion, “the Commission has long acted on the theory that
diversification of mass media ownership serves the pub-
lic interest by promoting diversity of program and ser-
vice viewpoints, as well as by preventing undue concen-
tration of economic power.” FCC v. National Citizens
Comm. for Broad., 436 U.S. 775, 780 (1978). In order to
promote viewpoint diversity and reduce economic con-
centration, the Commission regulates, inter alia, the
number of broadcast station licenses one entity may own
or control in a given local market.
The Commission initially effectuated its policies fa-
voring viewpoint diversity and economic competition in

3
local markets by adopting a presumption against the
grant of a second radio license to an existing licensee
in the same community. See Genesee Radio Corp.,
5 F.C.C. 183 (1938). In 1964, the Commission extended
that approach to television licenses. As originally pro-
mulgated, the local ownership rule prohibited “duopo-
lies”—the common ownership or control of television
stations with overlapping “grade B” signal contours.2
Amendment of Sections 73.35, 73.240, and 73.636 of the
Commission’s Rules Relating to Multiple Ownership
of Standard, FM and Television Broadcast Stations,
45 F.C.C. 1476 (1964).
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 specific changes to its broad-
cast ownership rules. See § 202(a)-(f), 110 Stat. 110-111.
With respect to the local television ownership rule, Con-
gress directed the FCC to “conduct a rulemaking pro-
ceeding to determine whether to retain, modify, or elim-
inate its limitations on the number of television stations
that a person or entity may own, operate, or control, or
have a cognizable interest in, within the same television
market.” § 202(c)(2), 110 Stat. 111. Congress also re-
quired the Commission to review its ownership rules
periodically and to “repeal or modify any regulation [the
2 “The Grade B contour of a television station is the imaginary line
within which a good picture may be expected 90% of the time at the best
50% of the locations.” Bucks County Cable TV, Inc. v. United States,
427 F.2d 438, 440 n.1 (3d Cir.), cert. denied, 400 U.S. 831 (1970). It is
intended to identify the area within which, given average terrain, the
station’s audience can receive a viewable signal. See 47 C.F.R. 73.683.

4
Commission] determines to be no longer in the public
interest.” § 202(h), 110 Stat. 112.3
In 1999, the Commission revised the local television
ownership rule. Review of the Commission’s Regula-
tions Governing Television Broadcasting, 14 F.C.C.R.
12,903 (1999 Order); 47 C.F.R. 73.3555(b). The new rule
allowed common ownership or control of two stations in
the same television market (as defined by the Nielsen
market research company) when either: (1) the stations’
Grade B signals do not overlap; or (2) one of the two
stations is not among the four top-rated stations in the
market, and the market includes at least eight other
television “voices” (defined to mean independently
owned, full-power, operational television stations). 1999
Order, 14 F.C.C.R. at 12,907-12,908 (¶¶ 8-9).
In Sinclair Broadcast Group, Inc. v. FCC, 284 F.3d
148 (2002) (Sinclair), the D.C. Circuit remanded—but
did not vacate—the revised local television ownership
rule. The Sinclair court recognized that the FCC “has
wide discretion to determine where to draw administra-
tive lines.” Id. at 162 (citation omitted). The court
found, however, that the agency had not adequately ex-
plained why it counted only television stations as voices
for purposes of the local television ownership rule, while
counting other media outlets (including daily newspa-
pers and cable systems) under different rules governing
cross-ownership of radio and television stations. Id. at
164. The court held that “the Commission ha[d] failed
to demonstrate that its exclusion of non-broadcast me-
3 The 1996 Act required the Commission to review its ownership
rules every two years. § 202(h), 110 Stat. 111. Congress later changed
the review period to every four years. See Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies Appropriations
Act, 2004, Pub. L. No. 108-199, § 629(3), 118 Stat. 100.

5
dia from the eight voices exception is ‘necessary in the
public interest’ under § 202(h) of the 1996 Act.” Id. at
165. The D.C. Circuit also examined the effect of Section
202(h) on media ownership rules in Fox Television Sta-
tions, Inc. v. FCC, 280 F.3d 1027, modified on reh’g,
293 F.3d 537 (2002), which involved challenges to the
Commission’s 1998 decision not to repeal or modify its
national television station ownership or cable-broadcast
ownership rules, id. at 1033. In that case, the court em-
phasized that “nothing in § 202(h) signals a departure
from [the] historic scope” of the Commission’s public
interest authority. Id. at 1042. The court construed
Section 202(h) as requiring the FCC to provide an ade-
quate explanation for any decision to retain a particular
ownership rule, accounting for the state of competition
in the relevant media markets. See id. at 1042, 1044.
Based on its determination that the Commission had not
adequately explained its decision to retain the national
television and cable-television cross-ownership rules,
the court remanded those rules to the FCC for further
consideration. Id. at 1047-1049.
3. In 2003, the FCC completed a comprehensive
Section 202(h) review of its ownership rules, including
its local television ownership rule. 2002 Biennial Regu-
latory Review, 18 F.C.C.R. 13,620 (2003 Order). In the
2003 Order, the Commission relaxed the local television
ownership rule by adopting a tiered approach under
which regulatory limits on common ownership of televi-
sion stations depended on the number of such stations
in the relevant market. Under the revised rule, a single
entity could own (a) two full-power commercial televi-
sion stations in a market with 17 or fewer stations; and
(b) three full-power commercial stations (a so-called

6
“triopoly”) in markets with 18 or more television sta-
tions. The revised rule retained the restriction on a sin-
gle entity’s ownership or control of any two of the four
highest rated stations in the market. See 2003 Order,
18 F.C.C.R. at 13,668 (¶ 134).
Numerous petitions for review of the Commission’s
2003 Order were consolidated in the United States
Court of Appeals for the Third Circuit, which first
stayed the revised rules and then remanded them to the
agency. Prometheus Radio Project v. FCC, 373 F.3d
372 (2004), cert. denied, 545 U.S. 1123 (2005) (Prome-
theus I). Although the court agreed with the Commis-
sion that “broadcast media are not the only media out-
lets contributing to viewpoint diversity in local mar-
kets,” id. at 414, it rejected the specific numerical trig-
gers contained in the revised ownership rule, holding
that they were based on unsupported assumptions, id.
at 418-420. As a result of the previously issued judicial
stay, the 1999 rule governing common ownership of tele-
vision stations in the same market remained in effect.
4. On remand, the FCC decided not to re-adopt the
local television ownership limits set forth in the 2003
Order. Pet. App. 207a-227a. Instead, the agency re-
tained “the local television ownership rule as it is cur-
rently in effect,” i.e., the rule as it was promulgated in
1999. Id. at 207a. The agency acknowledged its prior
finding that the rule was no longer “necessary to pro-
mote viewpoint diversity.” Id. at 209a. The Commission
determined, however, that “the current rule is consis-
tent with the public interest” because it serves to pro-
mote competition in local television markets, id. at 214a,
which yields “higher quality programming provided to
viewers,” id. at 215a, as well as lower advertising costs,
which can be passed on to consumers, id. at 216a.

7
The Commission determined that, in assessing the
degree of competition in a local television market, it was
appropriate to take account of local television stations
without regard to other media competing in the market.
The agency explained that non-broadcast sources, such
as cable networks, do not provide competition in local
markets because “those networks respond primarily to
national and regional forces.” Pet. App. 215a-216a. The
Commission recognized that other media, such as “ra-
dio, newspapers, cable, and the Internet,” may “contrib-
ute to viewpoint diversity,” and that rules intended to
foster viewpoint diversity therefore should take those
media into account. Id. at 219a; see also id. at 199a
n.259. The FCC explained, however, that the local tele-
vision ownership rule was intended to promote “compe-
tition among broadcast television stations in local mar-
kets” rather than to foster viewpoint diversity. Id. at
219a.
The Commission adhered to its prior determination
that “a minimum of eight independently owned-and-op-
erated television stations is appropriate to ensure that
there will be robust competition in the local television
marketplace.” Pet. App. 217a. The FCC explained that
this numerical threshold would ensure that each local
television market “includes four stations affiliated with
the four major networks in each market (i.e., ABC,
NBC, CBS, and Fox), plus at least an equal number of
independently owned-and-operated broadcast television
stations that are not affiliated with a major network.”
Ibid. The Commission expressed the view that the
eight-voices requirement “will help to ensure that local
television stations, spurred by competition, will provide
dynamic and vibrant alternative fare, including local
news and public affairs programming.” Ibid.

8
5. The court of appeals affirmed the Commission’s
decision to adhere to the 1999 local television ownership
rule. Pet. App. 49a-56a. The court held that the FCC’s
decision to retain an eight-voices test, limited to local
television stations, was “a line-drawing exercise” that
the agency had “reasonably explained.” Id. at 53a. The
Third Circuit rejected the contention that the FCC
had violated the D.C. Circuit’s mandate in Sinclair,
holding that “the FCC has offered a new and reason-
able rationale for this policy choice—competition.” Ibid.
The court also explained that, “because the purpose of
the rule is to promote competition among the [local tele-
vision] stations themselves,” the Commission had per-
missibly declined to consider “the effect of other video
programming.” Id. at 54a. The court accordingly “af-
firm[ed] the validity of the rule.” Id. at 79a.
6. Pursuant to Section 202(h), the Commission has
continued to examine its media ownership rules quad-
rennially. 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-
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 FCC
recently issued a Notice of Proposed Rulemaking
(NPRM), which proposes a number of changes to the
FCC’s 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

9
“tentatively conclude[d] that the local television owner-
ship rule, with certain modifications * * * , remains
necessary in the public interest as a result of competi-
tion.” Id. at 2872. The FCC sought comment on that
tentative conclusion and on a number of specific ques-
tions related to it. Id. at 2871-2877.

ARGUMENT

The decision of the court of appeals upholding the
Commission’s local television ownership rule does not
conflict with any decision of this Court or any other
court of appeals. The court’s fact-bound resolution of a
garden-variety issue of administrative law, regarding an
ownership rule that the FCC is currently reevaluating,
is correct and does not warrant this Court’s review.
1. a. Contrary to petitioner’s contention (Pet. 2-3,
18-23), the decision below does not conflict with the D.C.
Circuit’s decision in Sinclair Broadcast Group, Inc. v.
FCC, 284 F.3d 148 (2002), remanding the local television
ownership rule for further agency consideration. The
D.C. Circuit’s remand was based on that court’s deter-
mination that the Commission had not adequately justi-
fied “counting fewer types of ‘voices’ in the local owner-
ship rule than it counted in its rule on cross-ownership
of radio and television stations.” Id. at 162. The court
found that the Commission’s decision to adopt the rule
was “deficien[t]” because the agency had not explained
why the considerations of “diversity and competition”
that underlie the cross-ownership rule “should not also
be reflected in its definition of ‘voices’ for the local own-
ership rule.” Id. at 164. The court therefore held that
the Commission had “failed to demonstrate that its ex-
clusion of non-broadcast media from the eight voices

10
exception” satisfied the regulatory review obligation
imposed by the 1996 Act. Id. at 165.
After the Third Circuit overturned the Commission’s
2003 attempt to modify the rule, the FCC decided to
adhere to the existing (i.e., 1999) local television owner-
ship rule, but it provided the adequate explanation that
the D.C. Circuit had found lacking in Sinclair. The
Commission explained that, although the local television
ownership rule was “no longer necessary to foster diver-
sity” of viewpoints, the rule was an appropriate way “to
foster competition among local television stations.” Pet.
App. 219a; see id. at 218a-219a. The Commission ob-
served that such competition provides an “incentive to
television stations to invest in better programming and
to provide programming that is preferred by viewers.”
Id. at 215a. To further that competition-promoting pur-
pose, the FCC found it “appropriate to limit [its] voices
test to television stations.” Id. at 219a.
This Court has long recognized that, after a judicial
remand, an agency may “reexamine[] the problem, re-
cast its rationale and reach[] the same result.” Securi-
ties & Exch. Comm’n v. Chenery Corp., 332 U.S. 194,
196 (1947). Consistent with that principle, the court
below upheld the rule on the basis of the Commission’s
refined competition rationale. Pet. App. 53a-55a. Be-
cause the FCC on remand articulated the reasoned jus-
tification that the D.C. Circuit in Sinclair had previ-
ously found lacking, the Third Circuit’s decision does
not conflict with Sinclair. See id. at 53a.
b. Petitioner contends that the decision below “re-
flects an underlying disagreement” with the D.C. Cir-
cuit concerning “the proper scope of the Commission’s
review of its media ownership rules under the 1996 Act.”
Pet. 21; see CBS Br. 9-10. Petitioner asserts that the

11
D.C. Circuit has interpreted Section 202(h) to require “a
presumption in favor of repealing or modifying the own-
ership rules,” Pet. 21 (quoting Sinclair, 284 F.3d at
159), and that the Third Circuit “has established a pre-
sumption in favor of the status quo,” ibid.
Contrary to petitioner’s contention, the two courts of
appeals have approached Section 202(h) consistently.
The Third Circuit does not employ a “presumption in
favor of the status quo.” Rather, that court has recog-
nized that Section 202(h) requires repeal or modification
of rules that are “no longer useful” to serve the public
interest, and that the Commission must “support its
decision with a reasoned analysis.” Pet. App. 21a (cita-
tion omitted).
Nor has the D.C. Circuit employed a contrary pre-
sumption in favor of deregulation. Petitioner relies
(Pet. 21) on the statement in Sinclair that Section
202(h) establishes a “presumption in favor of repealing
or modifying the ownership rules.” 284 F.3d at 152 (ci-
tation omitted). The D.C. Circuit has since explained,
however, that it was simply “piggyback[ing]” on its
statement in a prior case (Fox Television Stations, Inc.
v. FCC, 280 F.3d 1027, 1048, modified on reh’g, 293 F.3d
537 (2002)) that “only came after the court had con-
cluded that the Commission’s explanation for its action
could not withstand arbitrary and capricious review, and
the question became the selection of the appropriate
remedy for the court to impose.” Cellco P’ship v. FCC,
357 F.3d 88, 98 (2004). The D.C. Circuit recognized in
Cellco that Sinclair “did not adopt a general presump-
tion in favor of modification or elimination of regulations
when considering a substantive challenge to the ade-
quacy of the Commission’s determinations.” Ibid. In
Prometheus I, this Court declined to grant review to

12
consider essentially the same argument concerning the
proper construction of Section 202(h). See Gov’t Br. in
Opp. at 25-26, Media Gen., Inc. v. FCC, 545 U.S. 1123
(2005) (Nos. 04-1020 et al.). There is no reason for a
different result here.
Both the Third and D.C. Circuits have properly re-
jected the view of respondent CBS Corp. (a petitioner
below) that Section 202(h) requires the Commission to
jettison a regulation without regard to whether it is nec-
essary to serve the public interest. CBS Br. 14-15.
There is no merit to CBS’s contention (id. at 15) that the
reasonableness review conducted by those courts “ren-
ders the statute meaningless.” Ibid. In Section 202(h),
Congress directed the FCC to review its rules and to
alter them where appropriate. Pursuant to that direc-
tive, the Commission has reviewed and altered its media
ownership regulations three times and is currently en-
gaged in a fourth examination.4 That the Commission’s
actions are reviewed under the ordinary test applicable
to most agency actions does not undermine the statu-
tory purposes.
2. Under the Commission’s local ownership rule, a
single entity may lawfully own or control two stations in
the same television market if, inter alia, the market
includes at least eight other television “voices.” Peti-
tioner contends (Pet. 25-27) that the court of appeals
4 CBS contends (Br. 14) that the Third Circuit’s construction of Sec-
tion 202(h) “could be interpreted to impose no obligation on the agen-
cy at all other than to robotically undertake a quadrennial review
that results in no modifications to the ownership rules whatsoever.”
That contention is belied by the Third Circuit’s decisions in Prometheus
I and Prometheus II, in which the court engaged in comprehensive and
detailed review of the Commission’s media ownership rules, resulting
in the remand of several.

13
erred in upholding the FCC’s decision not to consider
non-television media in determining whether eight
voices exist in a particular market. The court’s case-
specific ruling was correct and does not warrant further
review.
Unlike other ownership rules, which are intended to
achieve viewpoint diversity in the broader video pro-
gramming market, the FCC’s local ownership rule
serves to foster “robust competition in the local televi-
sion marketplace.” Pet. App. 217a. As the court below
correctly recognized, the local ownership rule “does not
depend on the effect of other video programming” be-
cause “the purpose of the rule is to promote competition
among the stations themselves.” Id. at 54a. In contend-
ing that exclusion of non-broadcast media from the voice
count is “entirely unjustified in light of the state of the
media marketplace,” Pet. 26, petitioner misapprehends
the rule’s purpose.
The Commission did not find, as petitioner asserts,
that “local television stations compete only against each
other.” Pet. 25. Rather, the Commission reasonably
determined that the public interest would be best
served by a rule that maximizes competition among local
television stations, without regard to other media. Lo-
cal stations, the FCC found, respond much more
strongly than other media to local needs and interests.
Pet. App. 215a-216a. Concerns about viewpoint diver-
sity, the Commission reasonably determined, were more
appropriately dealt with in the agency’s cross-ownership
rules, which take account of a broader range of media.
Id. at 219a.
Equally unavailing is petitioner’s argument (Pet. 27-
28) that the court of appeals erred by failing to “ex-
plain[] why [its decision in] Prometheus I had been

14
wrong to conclude that increased common ownership
leads to welfare-enhancing efficiencies.” Pet. 28. Peti-
tioner’s claim of intra-circuit conflict does not warrant
this Court’s review. Wisniewski v. United States, 353
U.S. 901 (1957) (per curiam). In any event, no such con-
flict exists.
In Prometheus I, the Third Circuit accepted the
FCC’s determination that increased concentration of
ownership could yield certain benefits. See Prometheus
Radio Project v. FCC, 373 F.3d 372, 415 (2004), cert.
denied, 545 U.S. 1123 (2005). In its order on remand,
the Commission similarly recognized that a more per-
missive multiple ownership rule could lead to potential
“savings in overhead and management costs.” Pet. App.
216a. The agency found “insufficient evidence to con-
clude that the current rule threatens local program-
ming,” id. at 223a, however, and it therefore concluded
that “it serves the public interest to retain [the current
rule] in order to preserve vigorous competition among
local television stations.” Ibid. An administrative
agency may change its policy judgments so long as it
explains the change, see FCC v. Fox Television Sta-
tions, Inc., 556 U.S. 502 (2009), and the FCC permissi-
bly did so here.
Petitioner also contends that the Court should inter-
vene in this case because the local television ownership
rule “threatens many local stations’ viability.” Pet. 29.
That argument ignores entirely the Commission’s long-
standing failed/failing station policy, under which the
agency will waive the local ownership rules on a case-by-
case basis to prevent the loss of a station in a market.
See 47 C.F.R. 73.3555 n.7; 1999 Order, 14 F.C.C.R. at
12,936-12,940. The failed/failing station policy reflects
the FCC’s balancing among various competing public

15
interest factors, including the possible harms of media
consolidation and the need to assist economically dis-
tressed stations. Moreover, recently enacted legislation
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 and share the auction proceeds with the former
licensee. See Middle Class Tax Relief and Job Creation
Act of 2012, Pub. L. No. 112-96, § 6403, 126 Stat. 225;
see pp. 15-16, infra. Over the long term, that authority
has the potential to alter significantly the economics of
television stations in poor economic health, and it under-
mines the claim that the Court must act to preserve
such stations’ viability.5
3. Finally, further review of this matter would be
particularly unwarranted given the FCC’s ongoing re-
view of the media ownership rules. See pp. 8-9, supra.
Petitioner and other interested parties now have the
opportunity to create a new record before the Commis-
sion that could support a regulatory approach other
than the one adopted in the order at issue here. Any
such rule will be judicially reviewable on the new admin-
istrative record, under the applicable legal standards.
Moreover, as noted above, newly enacted legislation
has the potential to alter the television marketplace in
ways that could affect future regulation. The Middle
Class Tax Relief and Job Creation Act of 2012, Pub. L.
5 Petitioner faults the court of appeals for retaining jurisdiction over
the Commission’s disposition of the issues the court remanded to the
agency. Pet. 32-34. Petitioner does not allege a circuit conflict on that
procedural issue; does not identify any legal error in the court’s action;
and does not contend that the court of appeals “so far departed from
the accepted and usual course of judicial proceedings * * * as to call
for an exercise of this Court’s supervisory power.” Sup. Ct. R. 10(a).

16
No. 112-96, 126 Stat. 156, which became law on Febru-
ary 22, 2012, authorizes the Commission to allow televi-
sion licensees to return their spectrum assignments to
the agency, which can then auction the spectrum rights
for other uses, such as wireless telecommunications ser-
vices, and share the auction proceeds with the former
licensee. See, e.g., § 6403, 126 Stat. 225. Although the
new legislation is unlikely to have an immediate impact
on the television marketplace, any reclamation of spec-
trum in the longer term could reduce the number of
broadcast television stations across the country and af-
fect how consumers access media 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 future changes in the tele-
vision industry also weighs against further review here.6
6 Contrary to petitioner’s suggestion (Pet. 34 n.10), the pendency of
other certiorari petitions raising constitutional challenges to FCC
media ownership rules provides no reason to grant this petition. The
issues presented by those other petitions are entirely different from the
issues raised here, and the disposition of those constitutional challenges
would have no bearing on the administrative-law issues presented in
this case. For the same reason, there is no reason to hold this petition
pending disposition of the others.

17

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.*
SRI SRINIVASAN*
AUSTIN C. SCHLICK
Acting Solicitor General
General Counsel
PETER KARANJIA
Deputy General Counsel
JACOB M. LEWIS
Associate General Counsel
JOEL MARCUS
Counsel
Federal Communications
Commission
MARCH 2012
* The Solicitor General is recused in this case.

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.