Amicus briefs Monday supporting the FCC’s Supreme Court appeal of the 3rd U.S. Court of Appeals' Prometheus IV decision focused on the impact to the broadcast industry, judicial deference and Section 230 of the Communications Decency Act (see 2011170057). Amici supporting the 3rd Circuit are due Dec. 23, a week after the date for the brief from the public interest group winners from Prometheus. “Local media ownership rules must reflect the realities of the modern media marketplace,” filed network affiliate groups for Fox, CBS, ABC and NBC: “Television broadcasters cannot maintain healthy, economically viable businesses in that hyper-competitive marketplace if a single panel of the Third Circuit is allowed to continue to unfairly hamstring local journalism.” Gray Television said the 3rd Circuit’s ruling “harms small and midsized communities around the nation by depriving them of the benefits of the FCC’s modernized rules.” The court “stymied the Commission’s efforts to modernize its media ownership rules as directed by Congress,” said The Phoenix Center. “Regardless of where this Court may draw the precise line between overly deferential and unduly strict judicial review of agency actions, the Third Circuit’s decision in this case was inappropriate.” The ruling runs afoul of the First and Fifth amendments, said the Southeastern Legal Foundation. “Give the public interest standard its appropriate, narrower meaning.” TechFreedom said SCOTUS should reverse the court because the ruling hurts the system of courts deferring to agencies. When courts don’t defer to valid agency interpretations of the law, “the resulting regulatory gridlock strengthens the arguments of those judges, scholars, and experts who favor allowing less delegation by Congress and less deference to agencies,” TechFreedom said. The Americans for Prosperity Foundation argued the 3rd Circuit overreached by not following the statute, but also that FCC calls for deference are “misguided.” AFPF cited the pending FCC action on Section 230 as an example of the agency’s “problematic” interaction with judicial deference. “While the proper interpretation of Section 230 is beyond the scope of this case, AFPF wishes to alert this Court to potential collision course the FCC may be on with the U.S. Constitution and separation of powers.”

The FCC Media Bureau should cap applications per organization at five for the upcoming 2021 window for noncommercial educational licenses (see 2010190048), said low-power FM entity REC Networks in comments posted Friday in docket 20-343. The Media Bureau proposed a cap of 10 in a recent public notice, but REC said the smaller cap would prevent the “gamesmanship, speculation and mass expansion that has happened in previous windows” and “reduce the staff burden on excessive [mutually exclusive] groups and sizes.” REC also urged the FCC to assure all applicants in the window are working from the same census block data and expressed concern that the 2020 data might not be available to all applicants at the time of the window.

Comments are due Nov. 27, replies Dec. 4 on Fox’s request for a permanent waiver of the newspaper/broadcast cross-ownership rule, said an FCC Media Bureau public notice in Monday’s Daily Digest. Fox was repeatedly granted temporary waivers of the rule for its WWOR-TV Secaucus, New Jersey, starting in 2001, but the FCC didn’t grant one in 2018 because the NBCO rule was eliminated. The 3rd U.S. Circuit Court of Appeals Prometheus IV ruling brought it back, and though an FCC appeal of that decision is pending at the Supreme Court, Fox requested a permanent waiver to provide certainty and preserve the status quo (see 2010060032). It has a similar permanent waiver for WNYW New York. The comment period is “exceedingly short,” Free Press said Monday. “The outgoing FCC could attempt to issue a decision before the agency transfers leadership to a Democratic majority following the swearing in of the Biden administration in January,” despite congressional calls for the agency to avoid controversial matters during the lame-duck period. Chairman Ajit Pai "wants to give more favors to media giants before he likely departs the FCC for good,” said the group. “The Trump FCC’s decision to grant a permanent waiver to Fox’s New Jersey and New York stations is part of a pattern of bending over backward to put industry interests before those of the people Pai and his GOP colleagues swore to serve.” The agency didn't immediately comment.

The 3rd U.S. Circuit Court of Appeals' Prometheus IV decision wasn't based on the merits of the FCC's proposed media ownership rules changes or a defect in its competitive analysis, but it instead came from "atextual policy concerns about the gender and racial makeup of broadcast station owners" and thus should be overturned. That's according to NAB, Bonneville, Connoisseur Media, Fox, News Corp., News Media Alliance, Nexstar, The Scranton Times and Sinclair in a Supreme Court docket 19-1231 opening brief Monday. The 3rd Circuit "elevated policy preferences about ownership diversity above Congress’ express competition-based command," they said. Section 202(h) of the Telecom Act doesn't include the goal of advancing minority and female ownership for broadcast stations, so while a laudable goal, it can't be invoked as the reason for preventing the FCC from updating its ownership rules, they said. The FCC, also appealing Prometheus IV, was to have filed a separate brief Monday.

Marshall Broadcasting withdrew FCC complaints against Nexstar and settled with the larger broadcaster after selling its stations to Nexstar sidecar Mission Broadcasting, Marshall said in an undocketed withdrawal filing posted Friday. Marshall acquired the stations as part of Nexstar’s 2014 buy of stations from Communications Corp. of America, White Knight Broadcasting and Grant Broadcasting, but in 2019 it alleged Nexstar continued to exert financial control over the stations after the sale. In August, the FCC approved transferring the stations to Mission as part of a bankruptcy proceeding (see 2008250055).

Clarify rules on the use of noncommercial education station spectrum for datacasting, said America’s Public Television Stations and PBS in calls Thursday with an aide to FCC Chairman Ajit Pai, Media Bureau Chief Michelle Carey and Media Bureau staff, said two ex parte filings posted Friday in docket 20-145. The agency also shouldn’t require public TV stations to pay FCC fees on ancillary services income, the filings said.

Clarify rules for broadcasters using their spectrum for ancillary services though ATSC 3.0, said Public Media Venture Group in a Monday videoconference with FCC Commissioner Brendan Carr, per a filing in docket 16-142. PMVG is focused on public TV stations transitioning to the new standard and asked the FCC to change language in rules on how public TV stations use spectrum capacity due to concerns the current wording could interfere with datacasting. PVMG supported FCC proposals to allow distributed transmission systems.

The FCC should “promptly approve” E.W. Scripps buying Ion, said Scripps CEO Adam Symson in a Tuesday meeting with FCC Chairman Ajit Pai, per a filing posted in docket 20-369 Thursday. Ion’s counsel, Cooley attorney and former Commissioner Robert McDowell -- who was on the commission with Pai -- also attended. The broadcasters cited antitrust authorities giving their nod. The deal is expected to receive FCC OK but could include adjustments to planned spinoffs (see 2011050024).

Graham Holdings agreed to sell its Megaphone podcast hosting and ad-insertion company to Spotify for $235 million, it said Tuesday. At the end of Q3, Spotify had 1.9 million podcasts on the platform, up from over 1.5 million in Q2, said an October shareholder letter. Twenty-two percent of Spotify’s monthly active users engaged with podcast content last quarter, up 21% sequentially. Megaphone provides hosting and ad-insertion capabilities for publishers and targeted ad sales for brand partners.

Broadcasters show “near unanimity” in support of a Gray Television proposal for alternative ways that broadcasters can demonstrate their stations are significantly viewed, said Gray in calls Thursday with FCC Chief of Staff Matthew Berry and General Counsel Tom Johnson, said an ex parte filing posted in docket 20-73 Tuesday. Hubbard Broadcasting has said Gray’s proposal to use Longley-Rice signal reach data in lieu of Nielsen viewership numbers isn’t in the public interest (see 2005150062). An FCC NPRM on the plan was widely supported but also got resistance from Nielsen, AT&T, Dish and NCTA. “Gray’s interpretation of the statute is consistent with its views that all MVPDs should and will continue to be treated equally under Gray’s proposal,” the ex parte filing said.