May Says the DC Circuit Court is Dragging Agency into the Future
WASHINGTON, D.C. - A pair of recent D.C. Circuit court rulings – and the threat of additional, farther-reaching ones – may jolt the Federal Communications Commission into more fully implementing the 1996 Telecommunications Act. That’s the view expressed by Randolph J. May, senior fellow and director of communications policy studies at The Progress & Freedom Foundation, in his recent Legal Times column, “Robed Revolutionaries: The D.C. Circuit is forcing the FCC – and Telecom Law – Into the Future.”
In Fox Television Stations Inc. v. FCC and Sinclair Broadcast Group v. FCC, the D.C. Circuit rebuked the agency for failing to revise rules governing the structure and ownership of the broadcast and cable industries. According to May, in both cases the court – not the FCC – is more true to the language and revolutionary intent of the act enacted by Congress and signed by President Bill Clinton.
“The court is troubled that the commission continues to act as if three dominant television networks still force-feed us our news as they did during Walter Cronkite’s heyday,” May writes. “The commission seems to think that cable and satellite TV networks – not to mention the Internet – were never invented, and that radio stations and newspapers have ceased to exist!”
Why are these rulings significant? According to May, “there was no dissent…even though the panel’s judges span the ideological spectrum.” Moreover, a court for the first time relied on Section 202 which, in the words of the Act, directs the FCC to “repeal or modify any [media ownership] regulation it determines no longer to be in the public interest.” More significantly, “There is another provision in the 1996 act, entitled simply ‘Regulatory Reform,’ that requires the commission to review biennially all its rules (not just those on ownership) and to ‘repeal or modify those no longer necessary in the public interest’,” May emphasizes.
“No doubt the commission is justifiably worried that the courts may now interpret this provision the same way the D.C. Circuit interpreted the nearly identical Section 202,” he writes.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.