3rd Circuit smackdown may not be last call

Don’t be surprised if the FCC and National Association of Broadcasters ask the U.S. Supreme Court to weigh in on broadcast ownership deregulation. That is after the full 3rd U.S. Circuit Court of Appeals refused to hear the FCC’s appeal, supported by NAB as an intervenor, of a lower court decision to throw out most of agency chairman Ajit Pai's deregulation order. That order included eliminating the newspaper-broadcast and radio-TV cross-ownership rules.

One attorney following the case said on background that he would be surprised if the FCC or U.S. Solicitor General Noel Francisco sought Supreme Court review — but would be less surprised if broadcasters went to the high court.

NAB executive vice president of communications Dennis Wharton would only say the trade group was disappointed with the court's decision not to grant en banc review and that the association was “reviewing its options.”

If the FCC and Justice Department do not appeal, NAB would be unlikely to do so, said the attorney. Broadcasters could go it alone, but he said as far as he knew the court has never picked up a case sought by an intervenor supporting the government when the government itself didn’t seek the appeal.

Pai said Friday the FCC was considering its options but had made no decision. Given his view of the 3rd Circuit, and with deregulatory-minded former U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh now on the high court, the chairman, at least, might like his chances.

Pai signaled back in September that the FCC would challenge the decision, making clear what he thought of the court's persistent remands of FCC deregulatory decisions that foiled multiple agency efforts to better match regulations to a video market increasingly populated by pay TV providers, including cable, satellite, telco and streaming companies.

“For more than 20 years, Congress has instructed the [FCC] to review its media ownership regulations and revise or repeal those rules that are no longer necessary," Pai said at the time. “But for the last 15 years, a majority of the same 3rd Circuit panel has taken that authority for themselves, blocking any attempt to modernize these regulations to match the obvious realities of the modern media marketplace.”

He was unequivocal about his lack of faith in a fair result out of that court. “It’s become quite clear that there is no evidence or reasoning — newspapers going out of business, broadcast radio struggling, broadcast TV facing stiffer competition than ever — that will persuade them to change their minds,” Pai said.