Federal Communications Commission v. Prometheus Radio Project, 592 U.S. ___ (2021)
Federal Communications Commission (FCC) ownership rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify rules that no longer serve the public interest. In 2017, the FCC concluded that three ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity and that the record did not suggest that repealing or modifying those rules was likely to harm minority and female ownership. The FCC repealed two ownership rules and modified another. The Third Circuit vacated the order.
The Supreme Court reversed. The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious under the Administrative Procedures Act (APA); it considered the record evidence and reasonably concluded that the rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity and that the changes were not likely to harm minority and female ownership. The FCC acknowledged the gaps in the data sets it relied on and noted that, despite its repeated requests for additional data, it had received no countervailing evidence suggesting that changing the rules was likely to harm minority and female ownership. The FCC considered two studies that purported to show that past relaxations of the ownership rules had led to decreases in minority and female ownership levels and interpreted them differently. The APA imposes no general obligation on agencies to conduct or commission their own studies. Nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion under Section 202(h).
A Federal Communications Commission decision to repeal or modify three ownership rules that limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market was not arbitrary and capricious under the Administrative Procedures Act.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL COMMUNICATIONS COMMISSION et al. v. PROMETHEUS RADIO PROJECT et al.
certiorari to the united states court of appeals for the third circuit
No. 19–1231. Argued January 19, 2021—Decided April 1, 2021[1]
Under its broad authority to regulate broadcast media in the public interest, the Federal Communications Commission (FCC) has long maintained several ownership rules that limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Section 202(h) of the Telecommunications Act of 1996 directs the FCC to review its media ownership rules every four years and to repeal or modify any rules that no longer serve the public interest.
In 2017, the FCC concluded that three of its ownership rules were no longer necessary to promote competition, localism, or viewpoint diversity. The Commission further concluded that the record evidence did not suggest that repealing or modifying those three rules was likely to harm minority and female ownership. Based on that analysis, the agency decided to repeal two of those three ownership rules and modify the third. Prometheus Radio Project and several other public interest and consumer advocacy groups (collectively, Prometheus) petitioned for review, arguing that the FCC’s decision to repeal or modify the three rules was arbitrary and capricious under the Administrative Procedure Act (APA). The Third Circuit vacated the FCC’s reconsideration order, holding that the record did not support the agency’s conclusion that the rule changes would have minimal effect on minority and female ownership.
Held: The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious for purposes of the APA. In analyzing whether to repeal or modify its existing ownership rules, the FCC considered the record evidence and reasonably concluded that the three ownership rules at issue were no longer necessary to serve the agency’s public interest goals of competition, localism, and viewpoint diversity, and that the rule changes were not likely to harm minority and female ownership.
In challenging the FCC’s order, Prometheus argues that the Commission’s assessment of the likely impact of the rule changes on minority and female ownership rested on flawed data. But the FCC acknowledged the gaps in the data sets it relied on, and noted that, despite its repeated requests for additional data, it had received no countervailing evidence suggesting that changing the three ownership rules was likely to harm minority and female ownership. Prometheus also asserts that the FCC ignored two studies submitted by a commenter that purported to show that past relaxations of the ownership rules had led to decreases in minority and female ownership levels. But the record demonstrates that the FCC considered those studies and simply interpreted them differently.
In assessing the effects of the rule changes on minority and female ownership, the FCC did not have perfect empirical or statistical data. But that is not unusual in day-to-day agency decisionmaking within the Executive Branch. The APA imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies. And nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion under Section 202(h). In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism, and viewpoint diversity, the Court cannot say that the agency’s decision to repeal or modify the ownership rules fell outside the zone of reasonableness for purposes of the APA. Pp. 7–13.
939 F.3d 567, reversed.
Kavanaugh, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.
JUDGMENT ISSUED. |
Judgment REVERSED. Kavanaugh, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion. VIDED. |
Argued. For petitioners in 19-1231: Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. For petitioners in 19-1241: Helgi C. Walker, Washington, D. C. For respondents: Ruthanne M. Deutsch, Washington, D. C. VIDED. |
Reply of petitioner FCC, et al. filed. (Distributed) |
Motion for divided argument filed by the Acting Solicitor General GRANTED. VIDED. |
Reply of Industry Petitioners filed. VIDED. (Distributed) |
Brief amici curiae of District of Columbia, et al. filed. VIDED. (Distributed) |
Brief amici curiae of Members of Congress filed. VIDED. (Distributed) |
Brief amicus curiae of Public Knowledge filed. VIDED. (Distributed) |
Amicus brief of Public Knowledge not accepted for filing. (December 23, 2020) |
The record received from the U.S.C.A. 3rd Circuit, for case numbers 19-1231 & 19-1241 (Consolidated). The record has been filed electronically for both case numbers. |
Brief amici curiae of The Leadership Conference on Civil and Human Rights, et al. filed. VIDED. (Distributed) |
Brief amici curiae of Former FCC Commissioners filed. VIDED. (Distributed) |
Brief amici curiae of Professors of Communications Law, Policy, and Administrative Law, and Doctors of Economics and Social Science filed. VIDED. (Distributed) |
Brief amicus curiae of Sue Wilson, Media Action Center filed (Corrected PDF submitted - 1/14/21). (Distributed) VIDED. |
Amicus brief of Sue Wilson, Media Action Center not accepted for filing. (January 14, 2021) |
Brief amicus curiae of The American Statistical Association filed. VIDED. (Distributed) |
Brief amici curiae of Media Law and Policy Scholars filed. VIDED. (Distributed) |
Brief amicus curiae of Public Citizen filed. VIDED. (Distributed) |
Brief of respondents Prometheus Radio Project, et al. filed. VIDED. (Distributed) |
Motion for divided argument filed by petitioners FCC, et al. VIDED. |
CIRCULATED |
Record requested from the U.S.C.A. 3rd Circuit. |
SET FOR ARGUMENT on Tuesday, January 19, 2021. VIDED. |
Brief amicus curiae of Southeastern Legal Foundation filed. VIDED. |
Brief amicus curiae of TechFreedom filed. VIDED |
Brief amicus curiae of Phoenix Center for Advanced Legal & Economic Publc Policy Studies filed. VIDED |
Brief amicus curiae of Gray Television, Inc. filed. VIDED. |
Brief amicus curiae of Americans for Prosperity Foundation filed. VIDED. |
Brief amici curiae of The ABC Television Affiliates Association, The CBS Television Network Affiliates Association, The FBC Television Affiliates Association, and The NBC Television Affiliates filed. VIDED. |
Blanket Consent filed by Petitioner, National Association of Broadcasters |
Brief of petitioners FCC, et al. filed. |
Joint appendix filed. VIDED. |
Brief of Industry Petitioners filed. VIDED. |
Joint appendix filed (statement of costs filed 4/13/21). VIDED. |
Petition GRANTED. The petition for a writ of certiorari in No. 19-1241 is granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED. |
Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 19-1231. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 19-1231. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.” |
DISTRIBUTED for Conference of 9/29/2020. |
Reply of petitioners FCC, et al. filed. |
Waiver of right of Lane, Dennis Multicultural Media, Telecom and Internet Council and the National Association of Black Owned Broadcasters, Inc. to respond filed. |
Brief of respondents Prometheus Radio Project; et al. in opposition filed. VIDED. |
Waiver of right of respondent Independent Television Group to respond filed. |
Brief amicus curiae of Gray Television, Inc. filed. VIDED |
Motion to extend the time to file a response is granted and the time is extended to and including July 21, 2020, for all respondents. |
Motion of Benton Institute for Broadband & Society, et al. to extend the time to file a response from May 20, 2020 to July 21, 2020, submitted to The Clerk. |
Motion to extend the time to file a response is granted and the time is extended to and including July 21, 2020. |
Motion to extend the time to file a response from May 20, 2020 to July 21, 2020, submitted to The Clerk. |
Petition for a writ of certiorari filed. (Response due May 20, 2020) |
Application (19A879) granted by Justice Alito extending the time to file until April 18, 2020. |
Application (19A879) to extend further the time from March 19, 2020 to April 18, 2020, submitted to Justice Alito. |
Application (19A879) granted by Justice Alito extending the time to file until March 19, 2020. |
Application (19A879) to extend the time to file a petition for a writ of certiorari from February 18, 2020 to March 19, 2020, submitted to Justice Alito. |