Prometheus Radio Project v. Federal Communications Commission
652 F.3d 431
| 3rd Cir. | 2011Background
- Prometheus Radio Project and others challenged FCC ownership rules adopted in the 2008 Order following the 2006 Quadrennial Review.
- The FCC replaced the preexisting newspaper/broadcast cross-ownership ban with a case‑by‑case NBCO framework guided by presumptions and a four‑factor test.
- The 2008 NBCO rule created presumptions: in top-20 DMAs, allow certain cross-ownership with conditions; in other DMAs, generally disallow unless certain criteria are met.
- The FCC also retained other rules (radio/TV cross-ownership, local TV, local radio, and dual network) and enacted a Diversity Order aimed at minority ownership.
- Prometheus I (2004) remanded several 2003 Order provisions for lack of support and clarification; Prometheus I guided remand of the NBCO framework in 2008.
- The Third Circuit held that the NBCO rule failed to satisfy APA notice and comment, vacated and remanded, while affirming most other rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did FCC satisfy APA notice and comment for NBCO rule? | Citizen Petitioners: failed to provide adequate notice and meaningful opportunity to comment. | FCC: FNPR provided sufficient notice; chairman's Op-Ed/Release not necessary. | No; NBCO vacated and remanded for inadequate APA notice and comment. |
| Is the NBCO framework a permissible post‑Prometheus I approach? | Citizen Petitioners: framework was unlawfully adopted without proper notice. | FCC: approach was within remand authority and consistent with prior notices. | Court vacates/remands NBCO rule due to APA defects, not necessarily its underlying policy. |
| Should remand affect Diversity Order/eligible-entity definitions? | Prometheus petitioners: remand requires revisiting eligibility to advance minority ownership. | FCC: remand preserved parity with ongoing proceedings; not ripe to strike diversity measures. | Remand of NBCO interacts with diversity provisions; panel retains jurisdiction over remanded issues. |
| Does the record support the 2008 NBCO-rule rationales apart from notice issues? | Record inadequate to justify new metrics and presumptions. | Rule grounded in market concentration and newsroom promises; supported by record. | Issue focused on notice/remand; substantive rationales not reached due to APA failure. |
Key Cases Cited
- Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) (remand of cross‑media limits; framework for evaluating diversity concerns)
- NCCB v. FCC, 436 U.S. 775 (Sup. Ct. 1978) (scarcity doctrine and diversity rationale for regulation of broadcast ownership)
- State Farm Mut. Auto. Ins. Co. v. Gov't Mgmt., 463 U.S. 29 (Sup. Ct. 1983) (arbitrary and capricious standard; reasoned agency decision required)
- American Water Works Ass'n v. EPA, 40 F.3d 1266 (D.C. Cir. 1994) (APA notice and comment purposes; fair notice requirements)
- Horsehead Res. Dev. Co. v. Browner, No. 94‑1343, 1994 WL 102119 (D.C. Cir. 1994) (extent of notice specificity required for rulemaking)