WASHINGTON — On Tuesday, Free Press and its allies argued before the Supreme Court in the long-running case against the FCC’s moves to weaken media-ownership limits. The outgoing Trump FCC and broadcast-industry lobbying groups took the case to the highest court despite their string of losses in earlier appellate proceedings.
Those lower-court decisions reversing the FCC’s rulings were based predominantly on the agency’s failure to gather and properly analyze data on the likely decrease in diverse ownership of the nation’s broadcast outlets following the agency’s repeal of its own safeguards.
Free Press joined Prometheus Radio Project; Common Cause; Movement Alliance Project; the National Association of Broadcast Employees and Technicians of the Communications Workers of America (NABET-CWA); and the Office of Communication, Inc. of the United Church of Christ (UCC), with which Free Press successfully litigated the case at the appellate-court level in the Third Circuit Court of Appeals in 2019.
Also joining the Supreme Court brief were the Benton Institute for Broadband & Society; the National Hispanic Media Coalition; the National Organization for Women Foundation; Media Alliance; and Media Counsel Hawai’i, as well as the Multicultural Media, Telecom and Internet Council, Inc., and the National Association of Black Owned Broadcasters.
Free Press and all of these parties were expertly represented by Supreme Court litigators Ruthanne Deutsch, who argued the case, and her partner Hyland Hunt, as well as UCC’s Cheryl Leanza, who argued the case at the appellate level.
Free Press Co-CEO Jessica J. González made the following statement:
“The Supreme Court heard today not only about the FCC’s failure to fulfill its public-interest mandate and promote broadcast-ownership diversity, but about the agency’s fatal administrative-law failings. Those are at the heart of this case, and they are the reason to uphold the lower court’s decision.
“The FCC failed to follow the law and the agency’s own long-held policies to promote diversity and prevent the rampant consolidation of media in the United States. The predictable result is a shameful lack of broadcast ownership by women and people of color. Indeed, the FCC’s sexist and racist policies have created nearly insurmountable barriers to entry.
“The Supreme Court doesn’t need to judge the substance or need for these FCC rules; it only needs to look at the agency’s process failures. The FCC has repeatedly refused to analyze or even compile the data it needs to assess the real impacts that its policies have on ownership opportunities for women and people of color. As our counsel summarized it for the justices this morning: The FCC’s ignoring evidence of harm doesn’t make it go away.
“In today’s oral arguments, the justices heard a great deal about Free Press’ landmark studies showing the harm to diverse ownership from past rounds of deregulation, as well as the diminished prospects for any diverse ownership as local media markets become more consolidated. As lower courts examining this case suggested, the FCC’s flawed response to this data would receive a failing grade in any introductory statistics class.
“Yet the Trump FCC looked at these numbers in 2017 and asserted without evidence that wholesale deregulation would not undermine the agency’s public-interest goals. That dereliction of duty is why the FCC should spend time getting its analysis right, lowering barriers to market entry, and expanding opportunities for diverse owners — instead of asking the Supreme Court to excuse the agency’s continually sloppy work in ways that will only further harm local communities.”