Washington, DC – December 7, 2020 – Cooley filed an amicus brief in the US Supreme Court supporting the reversal of a lower court decision that hinders efforts by the Federal Communication Commission to modernize its rules for the ownership of broadcast television stations. The brief, filed on behalf of Gray Television, 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. Lawyers David Mills, Elizabeth Prelogar, Robert McDowell and Barrett Anderson led the Cooley effort.
Over the last 17 years, the FCC has attempted repeatedly to update its broadcast ownership regulations in light of today's competitive media marketplace. The FCC's most recent effort occurred in 2017, when the agency modernized its rules in consideration of the ever-increasing competition from low-cost digital media sources, which undercuts the development of high-quality local journalism.
However, those 2017 updates are currently on hold because of a ruling of the US Court of Appeals for the Third Circuit.
The amicus brief contends that the proper interpretation of Section 202(h) is that it requires the FCC to consider the effects of marketplace competition when modernizing its rules, which the agency did, and that the Third Circuit's decision is incorrect because it requires the agency to elevate other policy considerations over the effects of competition. The brief also argues that the Third Circuit's ruling harms small and mid-sized communities around the US by depriving them of the benefits of the FCC's updated rules, underscoring that these communities require substantial investment in order to receive high-quality local news and community programming.
Gray currently owns and operates television stations and leading digital properties in 94 television markets, including the number-one rated television station in 68 markets and the first- or second-highest rated television station in 86 markets. Gray's television stations cover approximately 24% of US television households and broadcast approximately 400 separate programming streams.
Cooley also filed a Supreme Court amicus brief on behalf of CBS, NBC, ABC and Fox affiliates that are similarly seeking the reversal of the Third Circuit's ruling. Lawyers John Feore and Jason Rademacher are leading the Cooley effort alongside Brooks Pierce.