Supreme Court Awards the FCC for Long Neglecting Its Mandate to Promote Media Diversity in the United States

WASHINGTON — On Thursday, the U.S. Supreme Court affirmed strictly on procedural and agency-deference grounds the Trump FCC’s 2017 order that loosened local broadcast-ownership limits. The Court’s decision allows that 2017 order to stand for now, unfortunately prolonging the agency’s ongoing neglect of its mandate to ensure diversity, competition and localism in broadcast ownership.

The ruling in Prometheus Radio Project v. FCC is the culmination of the long-running challenge from Free Press and allies to FCC decisions that have repeatedly tried to dismantle media-ownership limits while failing to study the impact of such rule changes on broadcast-ownership opportunities for women and people of color.

In January, lawyers representing Prometheus Radio Project, Free Press, Common Cause, Movement Alliance Project, NABET-CWA and the United Church of Christ Office of Communication, Inc., argued before the Court that the FCC’s ongoing failure to gather and properly analyze data on the likely decrease in diverse ownership of the nation’s broadcast outlets ignored and exacerbated the shameful lack of broadcast ownership by women and people of color.

The opinion authored by Justice Brett Kavanaugh affirmed the FCC’s actions on judicial-deference grounds. The Court ruled that the FCC under former Chairman Ajit Pai did not act in an arbitrary or capricious manner when the agency ignored the obvious negative impact that massive consolidation would have on media ownership by women and people of color.

Free Press Senior Policy Counsel Carmen Scurato made the following statement:

“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. Rather than blessing the FCC’s laissez-faire approach to broadcast diversity and localism that helped bring U.S. media to this point, the Court should have upheld earlier appellate-court decisions that recognized the flaws in the FCC’s fact-free assertions.

“Despite today’s ruling, the Biden FCC and a new Congress still have a chance to get this right. They must recognize that hedge-fund and Wall Street-driven consolidation harms local communities, and only decimates what’s left of competition and diversity. Having fewer owners controlling more and more local broadcast and media outlets diminishes the amount of locally responsive journalism. We need media policies that spur investment in local communities and diverse ownership, and that support independent journalism as a bulwark against the rise of anti-democratic and white-supremacist movements across the country.

“Allowing giant corporations to buy up all local stations means less opportunity for ownership by smaller firms. Those smaller firms, which are so often the targets of acquisition by big conglomerates, are the few places where women and people of color have an ownership stake. If we don’t want all of our local media controlled by distant owners that misinform the public and promote racism, then the FCC and Congress need to act right now to de-consolidate local-media markets and ensure that ownership of the public airwaves reflects our nation’s diversity.

“The Supreme Court didn’t recognize the agency’s process failures as it should have, but the silver lining here is that it deferred to the agency’s judgment and left room for a new Commission to get this right. The FCC in the past 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: The FCC’s ignoring evidence of harm doesn’t make it go away.

“This ruling should serve as a spark for the Biden administration and Congress to reset and redesign media-ownership policies to benefit people rather than K Street or Wall Street, and to recognize what surrendering the public airwaves to Fox, Sinclair, Nexstar and the NAB has wrought. The current state of the media is not our only option.

“Policymakers have the power and incentive to do more: to actually roll back the worst of the giveaways, to do independent studies and to act based on the data. They can stop making deregulation the default, start prioritizing local communities, and create opportunities for Black people, Latinx people, women and others who weren’t even allowed in the line when broadcast licenses were handed out in the first place.”