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Federal judges yesterday sent a strong reprimand to the Federal Communications Commission claiming that the agency's rationale for eliminating media ownership limits "would be poorly rated in any class of introduction statistics ".
The decision made by the FCC in 2017 to eliminate cross-ownership rules in newspapers / broadcasters and on television / radio could allow for more media mergers. But the FCC decision was overturned by a 2-1 vote by a panel of judges at the US Court of Appeals for the third circuit. The judges wrote that the FCC "has not sufficiently taken into account the effect of its radical changes on the ownership of audiovisual media by women and racial minorities".
The 2017 FCC order had to take into account the instructions of previous decisions of the Third Circuit contrary to the Commission. But the FCC did not comply with the court's instructions, according to the judges' decision.
The "most glaring" problem in the FCC's analysis is that she "has not cited any evidence regarding gender diversity," the judges wrote. The FCC has stated in court that "no data on female property was available", but also[ed] having respected our instructions to take into account racial and gender diversity, repeatedly formulating its conclusion in terms that encompass both areas, "wrote the judges.
"A failure note"
The FCC's inability to seriously address the impact on female property would be "sufficient to warrant pre-trial detention," judges said. But the FCC also failed to properly examine the evidence of minority participation, they said. The FCC's analysis of proof of ownership of racial minorities "is so insignificant that it will not be given any marks in an introductory course to statistics," said the judges' decision.
The FCC's mistake dates back to a decision made in 2016 when Tom Wheeler was president. The 2016 decision only provided for minor changes to the rules on cross-ownership, but the evidence cited in this decision would later be used by President Ajit Pai to completely eliminate the rules in 2017, the judges wrote. .
The 2016 FCC order compared two different sets of data on minority-owned stations. But comparing the two sets of data, one collected by the FCC and the other by NTIA, "is clearly an exercise in comparing apples to oranges, and the Commission does not seem to have recognized this problem or taken any effort to fix it, "wrote the judges.
The notice continued:
Even though we could treat the use of both sets of data as reliable, the FCC's statistical findings are terribly simplistic. They only compare the absolute number of minority stations at different times and make no effort to control for possible confounding variables. The simplest of them would be the total number of existing stations. We do not know, for example, whether the percentage of minority-owned stations increased or decreased from 1999 to 2009.
The 2017 ordinance that eliminated the cross-ownership rules "relied on the same evidence as the 2016 report and order to conclude that it would not significantly affect the diversity of property, "wrote the judges.
The cross-ownership rule between newspapers and radio stations, removed by the FCC, prohibits a single entity from owning a broadcast station and a full-strength daily newspaper in the same market. The radio / television rule limits the number of radio and television stations that a single entity can own in a market.
The court's decision yesterday also overturned a FCC's 2018 order that created an "incubator" program designed to help newcomers to the broadcasting sector. The FCC's definition of "newcomer" made no "explicit reference to race, sex or social disadvantage," the court said. The court's decision stated that none of the canceled orders had adequately considered the effect on diversity of broadcasting media ownership.
In addition to completely quashing two of Pai's orders, the court also set aside part of the 2016 ruling by the FCC. The annulled part of the 2016 decision was a rule to increase the ownership of "eligible entities" such as minority or women-owned companies. The FCC has defined "eligible entity" on the basis of revenues to promote small business ownership, but yesterday's court decision overturned the revenue-based definition and said the FCC should consider The impact of the definition on the ownership of women and minorities.
FCC to call
The FCC "intends[s] to request a further review "of the judges' decision, Pai said, adding that they had ignored the evidence in their decision:
For over twenty years, Congress has mandated the Federal Communications Commission to revise its rules on media ownership and to revise or repeal those that are no longer needed. But over the last 15 years, the majority of the Third Circuit's own group have taken this authority for themselves, blocking any attempt to modernize the regulations to address the obvious realities of the modern media market. It has become clear that there is no evidence or reasoning – newspapers are pulling away, radio broadcasts, broadcasting TVs facing more competition than ever before – that will persuade them to change their minds. # 39; s opinion. "
Pai argued in 2017 that the newspaper and broadcasting cross-media rule, published in 1975, had been made obsolete by cable news and on-line news sources.
"With the press sector in crisis, it makes no sense to pose regulatory hurdles to those who want to buy newspapers," Pai said at the time. "The media landscape has changed dramatically over the past 42 years, and the idea that a company could dominate a media market by owning a radio station and a newspaper is totally absurd."
FCC Democrats Applaud Court Decision
FCC Republican Commissioners Brendan Carr and Michael O. Rielly also issued statements criticizing yesterday's court ruling. The two Democrats on the committee, however, supported the court's decision.
"The court was right to refer the work of the FCC to the agency, because the FCC's analysis was so" without substance ", said Commissioner Jessica Rosenworcel." The FCC should not aim to respect the values we have always shared when updating media ownership policies. "
Commissioner Geoffrey Starks said yesterday that the court "rejected the deregulation efforts of the agency because of the lack of consideration of the impact of these policy changes on the ownership of resorts by women and people of color.Unfortunately, the tiny [sic] many different owners in this country speak for themselves ".
"Today 's announcement is clear: the FCC' s approach to defining our media ownership rules must be radically altered," Starks said. "We need to reiterate our goals of promoting competition, localism and diversity, and we can no longer deal with misinformation and misinformation – issues that courts and interested observers have emphasized too often in recent years. "
This is the fourth time that the Third Circuit Court "rejects all or part of the FCC's efforts to deregulate over the last 15 years due to its inability to study the public impact of its policy changes," said the Free Press advocacy group. Free Press was one of the public interest groups that sued the commission.
"The decision is a huge win for the public," said Free Press VP Jessica González. "He warns the FCC Trump not to have taken into account the impact of its ownership policies on women and people of color." This is the fourth time this court rejects the relentless attempts of the FCC and the broadcasting industry to weaken the limits of media ownership regardless of the damage caused by such drastic deregulation would cause problems to local communities. "
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