Ruling validates friend-of-the-court submissions Cooley filed for Gray TV and group of national TV broadcasting affiliates
The US Supreme Court ruled on April 1 that the Federal Communications Commission was within its authority to repeal or modify three long-standing media ownership controls. The decision aligns with arguments Cooley made in amicus briefs submitted on behalf of Gray Television that, after years of challenges, the FCC's modernized rules finally should 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, Robert McDowell and Barrett Anderson led the Cooley effort.
For nearly two decades, 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 to allow media companies serving small and mid-sized markets to expand and upgrade their facilities, improve service to the public, and maintain their financial health amidst ever-increasing competition from low-cost digital media sources, which undercuts the development of high-quality local journalism. However, a ruling of the US Court of Appeals for the Third Circuit put those 2017 updates on hold for several years.
In a unanimous opinion written by Justice Brett Kavanaugh, the Supreme Court found no issues with the agency's 2017 decision, which eliminated bans on broadcast-newspaper and television-radio cross-ownership, nixed restrictions on cross-station advertising agreements and dropped a diversity-of-viewpoints rule for local markets.
The briefs on behalf of Gray included:
- One filed at the petition for certiorari stage, when two sets of petitioners - the FCC and industry groups led by the National Association of Broadcasters - requested that the US Supreme Court take up the issue. Gray filed in support of both petitions, and the Supreme Court granted both and consolidated them into one case.
- One filed at the merits stage, when the petitioners asked the Supreme Court to reverse the underlying decision by the Third Circuit, Gray TV again filed in support of the petitioners.
Separately, Cooley also filed two Supreme Court amicus briefs, one at the cert stage and one at the merit stage, on behalf of CBS, NBC, ABC and Fox affiliates that were similarly seeking the reversal of the Third Circuit's ruling. Lawyers John Feore and Jason Rademacher led that Cooley effort alongside Brooks Pierce.
Gray 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 highest 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.
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