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High court backs FCC media shift

by Compiled Democrat-Gazette Staff From Wire Reports | April 2, 2021 at 2:01 a.m.

WASHINGTON -- The Supreme Court unanimously ruled Thursday that the Federal Communications Commission could relax rules limiting the number of newspapers, radio stations and television stations that a single entity may own in a given market.

The decision is likely to prompt further consolidation among broadcast outlets, some of which say they need more freedom to address competition from internet and cable companies. Critics fear that media consolidation will limit the perspectives available to viewers.

The court said the FCC acted reasonably in 2017 when it modified rules that predated the internet.

The rules, initially adopted between 1964 and 1975, had been meant "to promote competition, localism and viewpoint diversity by ensuring that a small number of entities do not dominate a particular media market," Justice Brett Kavanaugh wrote for the court. But the rules, he added, were a relic of a different era -- "an early-cable and pre-internet age when media sources were more limited."

"By the 1990s, however, the market for news and entertainment had changed dramatically," Kavanaugh wrote. "Technological advances led to a massive increase in alternative media options, such as cable television and the internet. Those technological advances challenged the traditional dominance of daily print newspapers, local radio stations and local television stations."

The rules prohibited a single entity from owning a radio or TV station and a daily newspaper in the same media market. They also limited how many radio and TV stations one company could own in a single market and restricted the number of TV stations a company could operate in one media market.

In 2017, the commission concluded that the three rules no longer served their original purposes of promoting competition and the like.

"The FCC explained that permitting efficient combinations among radio stations, television stations and newspapers would benefit consumers," Kavanaugh wrote.

Public interest and advocacy groups said changing the rules would harm minority and female ownership of media outlets. The 3rd U.S. Circuit Court of Appeals in Philadelphia agreed, ruling that the commission had not adequately considered evidence on that point. The appeals court ordered the commission to do more work "whether through new empirical research or an in-depth theoretical analysis."

The evidence before the commission in 2017 was thin and mixed, Kavanaugh wrote, with some of it suggesting that lifting the rule on newspaper and broadcast cross-ownership could increase minority ownership. He concluded that the commission's analysis of the limited evidence before it was adequate and that the court should defer to it.

"The FCC reasoned that the historical justifications for those ownership rules no longer apply in today's media market," Kavanaugh wrote. "The commission further explained that its best estimate, based on the sparse record evidence, was that repealing or modifying the three rules at issue here was not likely to harm minority and female ownership."

Carmen Scurato, a lawyer with Free Press, an advocacy group that was one of the challengers in the case, said in a statement that "this Supreme Court decision couldn't come at a worse time, as the country reels from the harmful impact media consolidation has had on communities of color in the United States."

David Chavern, the president of the News Media Alliance, a trade group, welcomed the ruling.

"The cross-ownership ban is a prime example of an outdated regulation that had shackled the newspaper industry for far too long," he said in a statement. "The repeal of the ban will generate much-needed investments and cross-platform synergies that will help sustain local news media at a monumental time in our country's history when local news is needed more than ever."

Kavanaugh did not address the question of whether female and minority ownership was a relevant factor under the governing statute. In a concurring opinion, Justice Clarence Thomas wrote that it was not.

"The FCC had no obligation to consider minority and female ownership," he wrote. He noted, too, that "the FCC has recently questioned the validity of the assumption that ownership diversity promotes viewpoint diversity."

The FCC now has a Democratic chairwoman who dissented from the 2017 order. But it is not yet fully staffed to let it take on controversial measures.

Acting FCC Chairwoman Jessica Rosenworcel said she was "disappointed" in the court's decision.

Advocacy groups that oppose the growing consolidation of the industry called on the FCC, the Biden administration and Congress to develop new rules to encourage local, diverse ownership.

Information for this article was contributed by Adam Liptak of The New York Times and by Tali Arbel of The Associated Press.

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