Court Calls Out FCC For Lack of Rules on Diversity in Media...

Court Calls Out FCC For Lack of Rules on Diversity in Media Ownership


Last week’s decision by the U.S. Court of Appeals for the Third Circuit raised the question: Why is the Federal Communications Commission taking so long to implement rules for promoting diversity in media ownership?

The court noted that since acknowledging in 1999 the need for policies that would promote diversity in media ownership, the FCC did not currently have in place any policy based on reasoned analysis to meet that goal.

The only policy that the FCC had come up with since 1999 was the failed station solicitation rule, which required that before a failed or failing station, or a station under construction was sold, attempts to sell it to buyers from outside the station’s market would have to be made.

That rule was abandoned by the FCC in 2003, but the court, in a prior ruling, held that action was arbitrary and capricious because the FCC did not take into account the effect it would have on the FCC’s attempts to bring about diversity in media ownership.

The FCC reinstated the failed station solicitation rule in 2008.

The court also noted in its opinion that the FCC had not compiled accurate data on the number of minority and women-owned radio and television stations in the United States.

In addition, the court took issue with the definition of entities that would be eligible for initiatives and incentives set out in the FCC’s 2008 diversity order. The court determined that the definition of eligible entities was not arrived at using any reasoned analysis and wanted to know how the definition would help increase the number of minority and women-owned television and radio stations.

It may take awhile for the FCC to shake the old definition of eligible entity. For example, in her comments on last week’s order, Commissioner Mignon Clyburn stated, “Today’s decision from the United States Court of Appeals for the Third Circuit to vacate and remand the Commission’s 2008 Diversity Order, because it did not take sufficient steps to increase participation in the broadcasting industry by new entrants and small businesses, including minority and women-owned businesses, sends the important message that ownership diversity remains an important aspect of the overall media ownership regulatory framework.”

Commissioner Clyburn then went on to say that the court’s opinion should be used as encouragement to focus on creating the studies and recommendations necessary for promoting a diverse media market.