Broadcasters challenging the FCC’s 2010 quadrennial media ownership order (or lack thereof) are now facing their third time presenting arguments before the U.S. Court of Appeals for the Third Circuit. Just over a week before the U.S. Court of Appeals for the D.C. Circuit was scheduled to hear oral arguments in the case known as Howard Stirk Holdings, LLC v. FCC, the court instead agreed to transfer the case to the Third Circuit. This will mark the third consecutive quadrennial ownership review settled in the Third Circuit.
The central issues in the case involve the FCC’s failure to complete its 2010 quadrennial review and its adoption of a new attribution standard for television joint sales agreements (JSAs). As we previously explained, the Commission declined to address most of the issues raised in the 2010 quadrennial ownership review, deferring those issues to its 2014 review (which remains ongoing). However, the agency did alter its rules to make a television JSA that accounts for more than 15% of the weekly advertising time for the brokered station attributable toward the ownership totals of the same-market brokering station.
In a statement accompanying the transfer order, Senior Circuit Judge Stephen F. Williams expressed concern that “given the widening circle of interlocked issues, plus the Commission’s interminable processes (the quadrennial review that was due in 2010 being neither completed nor so far as appears on the horizon, but in fact now consolidated with the still-unwritten review due in 2014), a vast range of issues may be forever committed to one circuit, contrary to the goals of Congress in authorizing review in 12 different circuits.” Nevertheless, Judge Williams concluded that, at this point, the “economy advantages of persistent review in the Third Circuit” warranted transfer to that court.
As a result of the transfer, the schedule for judicial review inevitably will be delayed, although the Third Circuit has yet to release its own schedule.