Project v. Fed. Communications Comm'n, Nos. 08–3078

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore: SCIRICA, AMBRO and FUENTES, Circuit Judges.
Citation652 F.3d 431,53 Communications Reg. (P&F) 533
PartiesPROMETHEUS RADIO PROJECTv.FEDERAL COMMUNICATIONS COMMISSION; United States of AmericaPrometheus Radio Project, Petitioner in Nos. 08–3078/08–4468Media Alliance, Petitioner in No. 08–4454Free Press, Petitioner in No. 08–4455Newspaper Association of America, Petitioner in No. 08–4456Fox Television Stations, Inc., Petitioner in No. 08–4457Sinclair Broadcast Group, Inc., Petitioner in No. 08–4458The Scranton Times, L.P., Petitioner in No. 08–4459Cox Enterprises, Inc., Petitioner in No. 08–4461Belo Corporation, Petitioner in No. 08–4462Morris Communications Company, LLC, Petitioner in No. 08–4463Gannett Company, Inc., Petitioner in No. 08–4464CBS Corporation, Petitioner in No. 08–4465Office of Communications of the United Church of Christ, Inc., Petitioner in No. 08–4467Tribune Company, Petitioner in No. 08–4470Bonneville International Corporation, Petitioner in No. 08–4471National Association of Broadcasters, Petitioner in No. 08–4472Clear Channel Communications, Inc., Petitioner in No. 08–4475CBS Broadcasting Inc., Petitioner in No. 08–4477Media General Inc., Petitioner in No. 08–4478Coalition of Smaller Market Television Stations; Raycom Media Inc., Petitioner in No. 08–4652.
Decision Date07 July 2011
Docket Number08–4454,08–4471,08–4462,08–4459,08–4475,08–4477,08–4461,08–4470,08–4458,08–4457,08–4463,08–4478,08–4465,08–4464,08–4456,Nos. 08–3078,08–4455,08–4468,08–4652.,08–4467,08–4472

652 F.3d 431
53 Communications Reg.
(P&F) 533

PROMETHEUS RADIO PROJECT
v.
FEDERAL COMMUNICATIONS COMMISSION; United States of AmericaPrometheus Radio Project, Petitioner in Nos. 08–3078/08–4468Media Alliance, Petitioner in No. 08–4454Free Press, Petitioner in No. 08–4455Newspaper Association of America, Petitioner in No. 08–4456Fox Television Stations, Inc., Petitioner in No. 08–4457Sinclair Broadcast Group, Inc., Petitioner in No. 08–4458The Scranton Times, L.P., Petitioner in No. 08–4459Cox Enterprises, Inc., Petitioner in No. 08–4461Belo Corporation, Petitioner in No. 08–4462Morris Communications Company, LLC, Petitioner in No. 08–4463Gannett Company, Inc., Petitioner in No. 08–4464CBS Corporation, Petitioner in No. 08–4465Office of Communications of the United Church of Christ, Inc., Petitioner in No. 08–4467Tribune Company, Petitioner in No. 08–4470Bonneville International Corporation, Petitioner in No. 08–4471National Association of Broadcasters, Petitioner in No. 08–4472Clear Channel Communications, Inc., Petitioner in No. 08–4475CBS Broadcasting Inc., Petitioner in No. 08–4477Media General Inc., Petitioner in No. 08–4478Coalition of Smaller Market Television Stations; Raycom Media Inc., Petitioner in No. 08–4652.

Nos. 08–3078

08–4454

08–4455

08–4456

08–4457

08–4458

08–4459

08–4461

08–4462

08–4463

08–4464

08–4465

08–4467

08–4468

08–4470

08–4471

08–4472

08–4475

08–4477

08–4478

08–4652.

United States Court of Appeals, Third Circuit.

Argued Feb. 24, 2011.Opinion filed July 7, 2011.


[652 F.3d 435]

Angela J. Campbell, Esquire, Adrienne T. Biddings, Esquire, Institute for Public Representation, Georgetown Law, Washington, DC, for Petitioners, Prometheus Radio Project; Media Alliance; Office of Communications of the United Church of Christ, Inc.Parul Desai, Esquire, Andrew J. Schwartzman, Esquire (Argued), Media Access Project, Washington, DC, for Petitioner, Prometheus Radio Project; Media Alliance.Marvin Ammori, Esquire, Coriell S. Wright, I, Esquire (Argued), Free Press, Washington, DC, for Petitioner, Free Press.Clifford M. Harrington, Esquire, Jack McKay, Esquire, Paul A. Cicelski, Esquire, Pillsbury, Winthrop, Shaw & Pittman, Washington, DC, for Petitioner, Sinclair Broadcast.Bruce T. Reese, Esquire, Bonneville International Corporation, Salt Lake City, UT, Lewis A. Tollin, Esquire, Craig E. Gilmore, Esquire, Kenneth E. Satten, Esquire, Wilkinson Barker Knauer, Washington, DC, for Petitioner, Scranton Times/Scranton Tribune; Bonneville International Corporation.Jonathan H. Anschell, Esquire, CBS Broadcasting Inc., Studio City, CA, Susanna M. Lowy, Esquire, CBS Broadcasting Inc., New York, NY, for Petitioner, CBS Broadcasting Inc.Jessica Marventano, Esquire, Sr. Vice President Government Affairs, Clear Channel Communications, Inc., Washington, DC, for Petitioner, Clear Channel Communications, Inc.Eve Reed, Esquire, John E. Fiorini, III, Esquire (Argued), James R.W. Bayes, Esquire, Richard E. Wiley, Esquire, Kathleen A. Kirby, Esquire, Andrew G. McBride, Esquire (Argued), Kurt A. Wimmer, Esquire, Helgi C. Walker, Esquire (Argued), Jamie Alan Aycock, Esquire, Martha E. Heller, Esquire, Maria L. Mullarkey, Esquire, Richard J. Bodorff, Esquire, Christiane M. McKnight, Esquire, Wiley Rein LLP, Washington, DC, for Petitioners, Newspaper Association of America; Morris Communications Company, LLC; Clear Channel Communications, Inc.; Belo Corporation; Gannett Company, Inc.; CBS Corporation; CBS Broadcasting Inc.Ellen S. Agress, Esquire, News Corporation, New York, NY, Maureen A. O'Connell, News Corporation, Washington, DC, for Petitioner, Fox Television Stations, Inc.Carter G. Phillips, Esquire, Ryan C. Morris, Esquire, James C. Owens, Jr., Esquire, Mark D. Schneider, Esquire, Virginia A. Seitz, Esquire (Argued), Jennifer B. Tatel, Esquire, R. Clark Wadlow, Esquire, James P. Young, Esquire, Sidley Austin, Washington, DC, for Petitioner, Tribune Company; Fox Television Stations Inc.George L. Mahoney, Esquire, Media General, Inc., Richmond, VA, for Petitioner, Media General Inc.Michael D. Hays, Esquire (Argued), Kevin F. Reed, Esquire, M. Anne Swanson, Esquire, John R. Feore, Jr., Esquire, Dow Lohnes, Washington, DC, for Petitioner, Fox Television Stations, Inc.; Cox Entertainment, Inc.; Media General Inc.Jane E. Mago, Esquire, Jerianne Timmerman, Esquire, National Association of Broadcasters, Washington, DC, Elaine J. Goldenberg, Esquire (Argued), Joshua M. Segal, Esquire, Jenner & Block, Washington, DC, for Petitioner, National Association of Broadcasters.Robert A. Long, Jr. Esquire, Enrique Armijo, Esquire, Covington & Burling, Washington, DC, for Petitioner, Coalition of Smaller Market TV Stations; Raycom Media Inc.

[652 F.3d 436]

Christopher Murray, Esquire, Washington, DC, Glenn B. Manishin, Esquire (Argued), Duane Morris LLP, Washington, DC, for Intervenor–Petitioner, Consumer Federation of America; Consumers Union.Austin C. Schlick, General Counsel, Jacob M. Lewis (Argued), Acting Deputy General Counsel, Daniel M. Armstrong, III, Associate General Counsel, Matthew Berry, Esquire, James M. Carr, Esquire, P. Michele Ellison, Esquire, Joseph R. Palmore, Esquire, C. Grey Pash, Jr., Esquire, Federal Communications Commission, Office of General Counsel, Washington, DC, Christine A. Varney, Assistant Attorney General, Nancy C. Garrison, Esquire, Catherine G. O'Sullivan, Esquire, Robert J. Wiggers, Esquire, Robert B. Nicholson, Esquire, United States Department of Justice, Washington, DC, for Respondents, Federal Communications Commission; United States of America.Before: SCIRICA, AMBRO and FUENTES, Circuit Judges.
OPINION OF THE COURT
AMBRO, Circuit Judge.
+-----------------+
                ¦Table of Contents¦
                +-----------------+
                
I. Background and Procedural History 438
                
 A. Our Review of the Commission's 2003 Report and Order 438
                
 Newspaper/Broadcast and Radio/Broadcast Cross–Ownership
                 1. Rules 438
                 2. Local Television Ownership Rule 439
                 3. Local Radio Ownership Rule 439
                 4. Dual Network Rule 440
                 5. Promoting Minority Ownership: Definition of Eligible 440
                 Entities in Transfer Rule and MMTC Proposals
                
 B. The Commission's 2006 Quadrennial Review, 2008 Order, and 440
                 Diversity Order
                
 1. Newspaper/Broadcast Cross–Ownership (“NBCO”) Rule 440
                 2. Radio/Broadcast Cross–Ownership Rule 441
                 3. Local Television Ownership Rule 442
                 4. Local Radio Ownership Rule 442
                 5. Diversity Order 442
                 6. Subsequent Procedural History 443
                
II. Jurisdiction and Standard of Review 444
                
 A. Standard of Review under the APA 444
                 B. Standard of Review under Subsection 202(h) 444
                
III. Newspaper/Broadcast Cross–Ownership (“NBCO”) Rule 445
                
 A. Notice and Comment Process 445
                 B. The FCC Failed to Meet the APA Notice and Comment Standard 449
                
 1. The APA Standard 449
                 2. Analysis of Compliance with the APA Standard 450
                
 C. Permanent Waivers of Cross–Ownership Rule 454
                
IV. Radio/Television Cross–Ownership Rule 456
                V. Local Television Ownership Rule 458
                
 A. Retention of the Pre–2003 Rule 458
                 B. Retention of the “Top Four/Eight Voices” Test 459
                 C. Declining to Tighten the Television “Duopoly Rule” 461
                
VI. Local Radio Ownership Rule 462
                VII. Retention of the Dual Network Rule 463
                VIII. Constitutionality of Media Ownership Rules 464
                IX. The Diversity Order and the Issue of Minority and Women Broadcast 465
                 Ownership
                
 A. Prometheus I Remand on Minority and Women Ownership Issues 465
                 B. Rulemaking Process regarding Minority and Female Ownership 466
                 Issues during the 2006 Quadrennial Review
                
 1. The FNPR in 2006 and Second FNPR in 2007 466
                
 C. The Diversity Order and Third FNPR in 2008 468
                 D. The Eligible Entity Definition is Arbitrary and Capricious 469
                
X. Conclusion 472
                

[652 F.3d 437]

In Prometheus Radio Project v. F.C.C., 373 F.3d 372 (3d Cir.2004) (“ Prometheus I ”), we considered revisions by the Federal Communications Commission (the “Commission” or “FCC”) to its regulations governing broadcast media ownership promulgated following its 2002 Biennial Regulatory Review. See 2002 Biennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Report and Order and Notice of Proposed Rulemaking, 18 F.C.C.R. 13,620, 2003 WL 21511828 (July 2, 2003) (the “ 2003 Order”). We affirmed the Commission's authority to regulate media ownership but remanded aspects of the Commission's 2003 Order that were not adequately supported by the record, including its numerical limits for local television ownership, local radio ownership rule, rule on cross-ownership of media within local markets, and repeal of the failed station solicitation rule. Prometheus I, 373 F.3d at 382, 421.

In these consolidated appeals, we consider the Commission's most recent revisions to its media ownership rules. In December 2007, following its 2006 Quadrennial Regulatory Review, the Commission announced an overhaul of its newspaper/broadcast cross-ownership rule and granted permanent waivers of the rule to five specific newspaper/broadcast combinations. 2006 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Report and Order and Order on Reconsideration, 23 F.C.C.R. 2010, 2055–56, 2008 WL 294635 (Dec. 18, 2007) (the “ 2008 Order”). It chose to retain its radio/television cross-ownership rule and local television and radio ownership rules in existence prior to the 2003 Order.1 It also retained its failed station solicitation rule, and set out a series of other measures to address broadcast ownership diversity, in a separate order. See Promoting Diversification of Ownership in the Broadcasting Services, 2006 Quadrennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Report and Order and Third Further Notice of Proposed Rulemaking, 23 F.C.C.R. 5922, 2008 WL 612180 (Dec. 18, 2007) (the “ ...

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  • La. Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor, No. 12–4030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
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    ...hold that the DOL provided the “reasoned analysis supported by the evidence” required by the APA. Prometheus Radio Project v. FCC, 652 F.3d 431, 462 (3d Cir.2011). Appellants' challenge to the DOL's compliance with this requirement focuses on the DOL's purported failure to respond to public......
  • Time Warner Cable Inc. v. Fed. Commc'ns Comm'n, Docket Nos. 11–4138(L), 11–5152(Con).
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    ...Id. It must “describe the range of alternatives being considered with reasonable specificity.” Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir.2011) (internal quotation marks omitted). “Otherwise, interested parties will not know what to comment on, and notice will not lead to be......
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    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2021
    ...‘usual’ amount of time allotted for a comment period[.]" Becerra , 381 F. Supp. 3d at 1177 (quoting Prometheus Radio Project v. F.C.C. , 652 F.3d 431, 453 (3d Cir. 2011), and internal citation omitted).Moreover, in the NPRM and the Final Rule, defendants acknowledged that the Rule "constitu......
  • Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., Case No. 20-cv-07721-SI
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 19, 2020
    ...the ‘usual’ amount of time allotted for a comment period[.]" Id. at 1177 (quoting 501 F.Supp.3d 820 Prometheus Radio Project v. F.C.C. , 652 F.3d 431, 453 (3d Cir. 2011) ). While not binding, the government's own internal orders state that "a comment period ... should generally be at least ......
  • Request a trial to view additional results
34 cases
  • La. Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor, No. 12–4030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 2014
    ...hold that the DOL provided the “reasoned analysis supported by the evidence” required by the APA. Prometheus Radio Project v. FCC, 652 F.3d 431, 462 (3d Cir.2011). Appellants' challenge to the DOL's compliance with this requirement focuses on the DOL's purported failure to respond to public......
  • Time Warner Cable Inc. v. Fed. Commc'ns Comm'n, Docket Nos. 11–4138(L), 11–5152(Con).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 4, 2013
    ...Id. It must “describe the range of alternatives being considered with reasonable specificity.” Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir.2011) (internal quotation marks omitted). “Otherwise, interested parties will not know what to comment on, and notice will not lead to be......
  • Centro Legal De La Raza v. Exec. Office for Immigration Review, Case No. 21-cv-00463-SI
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2021
    ...‘usual’ amount of time allotted for a comment period[.]" Becerra , 381 F. Supp. 3d at 1177 (quoting Prometheus Radio Project v. F.C.C. , 652 F.3d 431, 453 (3d Cir. 2011), and internal citation omitted).Moreover, in the NPRM and the Final Rule, defendants acknowledged that the Rule "constitu......
  • Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., Case No. 20-cv-07721-SI
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 19, 2020
    ...the ‘usual’ amount of time allotted for a comment period[.]" Id. at 1177 (quoting 501 F.Supp.3d 820 Prometheus Radio Project v. F.C.C. , 652 F.3d 431, 453 (3d Cir. 2011) ). While not binding, the government's own internal orders state that "a comment period ... should generally be at least ......
  • Request a trial to view additional results

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