As we previously reported, the deregulatory changes the FCC recently adopted to its media ownership rules are due to take effect on Feb. 7. Prometheus Radio Project and Media Mobilizing Project, however, have filed an appeal of those rule changes in the U.S. Court of Appeals for the Third Circuit and, as expected, have now asked the Court to delay the FCC’s implementation of those changes.
Interestingly, appellants here have not filed a traditional request for a stay. Rather, they have filed a petition for writ of mandamus. In that petition, they note that the Commission’s ownership orders (the August 2016 Order under former Chairman Wheeler and the December 2017 Reconsideration Order under Chairman Pai) were both adopted at least in part in response to a remand order from the Court. The petition argues that the Court should order the Commission to delay the effectiveness of the rule changes because the orders do not respond to that remand in so far as it directed the Commission to adopt a definition of “eligible entities” or conclude that it could not do so. The petition also argues that the Reconsideration Order does not address the impact its changes would have on minority and female ownership and that the consolidation allowed by the rule changes would likely have an adverse, and irreparable, effect on existing and potential female and minority owners.
The petition not only asks that the Court stay the effectiveness of the rule changes adopted in the Reconsideration Order, but further asks the Court to enjoin the Commission from approving any applications that would be inconsistent with the current ownership rules and to appoint a “special master.” This “special master” would supervise the Commission’s compliance with the Court’s orders in this proceeding.
In light of the limited time remaining before the scheduled effective date of Feb. 7, the Court has ordered the FCC to respond to the petition by no later than Feb. 2. A number of other interested parties, including Sinclair, Fox, the News Media Alliance, and the NAB, have asked the Court to allow them to participate in the proceeding as well. While courts are generally reluctant to stay agency rules, or issue writs of mandamus, the ultimate outcome here remains uncertain. We here at CommLawBlog will keep you updated as the proceeding develops.