Gray Files Supreme Court Brief Supporting Modernized TV Station Ownership Rules

Gray Television announced today that it has filed in the U.S. Supreme Court an amicus brief supporting the reversal of a lower court decision that hinders efforts by the FCC to modernize its broadcast ownership rules. (The brief can be viewed here.)

Gray said that over the last 15 years, the FCC has attempted repeatedly to update its regulations in light of today’s competitive media marketplace, as directed to do so by statute. “The FCC, however, has been stymied consistently by the U.S. Court of Appeals for the Third Circuit, which effectively has frozen the regulatory landscape as it existed in 1941 when the FCC first adopted a ‘one-to-market’ rule and when the media marketplace was enormously different than it is today,” the company said

Gray’s brief argues that the FCC’s modernized rules should finally be allowed to take effect because the agency issued them in full compliance with its obligations under Section 202(h) of the Telecommunications Act of 1996.

The appeal arises from the FCC’s most recent effort to update its broadcast ownership rules under Section 202(h), which provides that the FCC “shall review its rules” every four years, “shall determine whether” they are “necessary in the public interest as the result of competition,” and, if they are not, “shall repeal or modify” them.

Gray’s amicus brief contends that the proper interpretation of Section 202(h) is that it requires the FCC to consider — first and foremost — the effects of marketplace “competition” when modernizing its rules, and the Third Circuit’s ruling is incorrect because it requires the agency to elevate other policy considerations over the effects of “competition.”

At issue in this case are modernized regulations that the FCC issued in 2017 after considering the ever-increasing competition from low-cost digital media sources, which undercuts the development of high-quality local news and journalism.

Gray’s brief also argues that the Third Circuit’s decision harms small and mid-size communities around the nation by depriving them of the benefits of the FCC’s updated broadcast ownership rules. “These communities,” Gray said, “require substantial investment in order to receive high-quality local news and community programming. Gray’s business model and experience in developing and delivering award-winning local news and community programming illustrate firsthand that the FCC’s modernized regulations would facilitate those necessary and important investments.”

David Mills, Elizabeth Prelogar, Robert McDowell and Barrett Anderson of Cooley LLP prepared and filed the amicus brief on Gray’s behalf. Gray said it anticipates a ruling by the Supreme Court by June 2021.