The seemingly never-ending cycle in which the FCC adopts an order in its quadrennial media ownership review only to have that order overturned by a panel of the United States Court of Appeals for the Third Circuit is likely to continue unless the Supreme Court intervenes.

On Wednesday, November 20, the Third Circuit denied petitions for rehearing filed by the FCC and a group of intervenors from the broadcast and newspaper industries.  The petitions asked the Court to reconsider an earlier decision by the panel that vacated the Commission’s 2017 Media Ownership Order on Reconsideration and 2018 Incubator Order in their entirety and vacated the revenue-based definition of an “eligible entity” in the FCC’s 2016 Media Ownership Order.  The order denying the petition, which was signed by Judge Thomas Ambro (the author of the panel opinion), did not provide the details of the Third Circuit’s consideration.  It did, however, note that no judge who concurred in the panel decision asked for rehearing and a majority of the judges of the circuit in regular service did not vote for rehearing.

Under the Federal Rules of Appellate Procedure, unless a party to the proceeding obtains a stay, the Third Circuit will issue a mandate next week making the panel’s order effective (the order was effectively stayed while the petition for rehearing was pending).  Accordingly, the FCC’s 2014 Media Ownership Order, which had been overturned by the 2017 Media Ownership Order, will once again become the law of the land.  As a result, media companies will be subject to the newspaper/broadcast cross-ownership rule, the radio/television cross-ownership rule, and the eight-voices test for local television ownership.

The FCC and the intervenors have 90 days to file a petition for a writ of certiorari in the Supreme Court.  Typically, the Supreme Court will not agree to hear a case if there is not a circuit split or a strong dissent demonstrating that the case is of imperative public importance.  However, the retention of jurisdiction by the same panel of the same appellate court for more than 15 years has made a circuit split impossible.

The Commission has not yet indicated what its next step will be.  It could seek Supreme Court review or go back to the drawing board and adopt a new media ownership order . . . that will be subject to review by the same panel of the Third Circuit . . . which, if history is any indication, may well vacate the order, starting the seemingly endless cycle all over again while leaving in place anachronistic rules that have long outlasted their usefulness.

Yogi Berra would be proud.

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