No.
`
`In the Supreme Court of the United States
`
`
`
`FEDERAL COMMUNICATIONS COMMISSION AND
`UNITED STATES OF AMERICA, PETITIONERS
`v.
`PROMETHEUS RADIO PROJECT, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`MAKAN DELRAHIM
`Assistant Attorney General
`MALCOLM L. STEWART
`Deputy Solicitor General
`MICHAEL F. MURRAY
`Deputy Assistant Attorney
`General
`AUSTIN L. RAYNOR
`Assistant to the Solicitor
`General
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`THOMAS M. JOHNSON, JR.
`General Counsel
`JACOB M. LEWIS
`Associate General Counsel
`JAMES M. CARR
`WILLIAM SCHER
`Attorneys
`Federal Communications
` Commission
`Washington, D.C. 20554
`
`
`
`
`

`

`QUESTION PRESENTED
`To preserve competition and viewpoint diversity, the
`Federal Communications Commission (FCC) has his-
`torically restricted the ability of broadcasters to own
`multiple outlets in a single market. In Section 202(h) of
`the Telecommunications Act of 1996, as amended,
`47 U.S.C. 303 note, Congress directed the FCC to re-
`view these ownership rules every four years to “deter-
`mine whether any of such rules are necessary in the
`public interest as the result of competition,” and to “re-
`peal or modify any regulation [the FCC] determines to
`be no longer in the public interest.” In 2003, the FCC
`sought to relax certain ownership rules that it had de-
`termined were no longer necessary in light of dramati-
`cally changed market conditions. In a series of three
`appeals spanning the past 17 years, however, the same
`divided panel of the United States Court of Appeals for
`the Third Circuit has repeatedly vacated the FCC’s at-
`tempts to reform its ownership rules. The effect of
`those decisions has been to maintain in effect decades-
`old FCC ownership restrictions that the agency be-
`lieves to be outmoded. In the decision below, the panel
`majority vacated the FCC’s revised ownership rules
`and other regulatory changes solely on the ground that
`the agency had not adequately analyzed the potential
`effect of the regulatory changes on female and minority
`ownership of broadcast stations. The question pre-
`sented is as follows:
`Whether the court of appeals erred in vacating as ar-
`bitrary and capricious the FCC orders under review,
`which, among other things, relaxed the agency’s cross-
`ownership restrictions to accommodate changed mar-
`ket conditions.
`
`
`(I)
`
`

`

`PARTIES TO THE PROCEEDING
`Petitioners were respondents in the court of appeals.
`They are the Federal Communications Commission and
`the United States.
`Respondents were petitioners and intervenors in the
`court of appeals.1 They are: Benton Institute for Broad-
`band and Society, Bonneville International Corporation,
`Common Cause, Connoisseur Media LLC, Cox Media
`Group LLC, Free Press, Fox Corporation, Independent
`Television Group, Media Alliance, Media Council
`Hawaii, Media Mobilizing Project, Multicultural Media,
`Telecom and Internet Council, National Association of
`Black-Owned Broadcasters, National Association of
`Broadcast Employees and Technicians-Communications
`Workers of America, National Association of Broad-
`casters, National Organization for Women Foundation,
`News Corporation, News Media Alliance, Nexstar
`Broadcasting, Inc., Office of Communication Inc. of the
`United Church of Christ, Prometheus Radio Project,
`Scranton Times L.P., and Sinclair Broadcast Group Inc.
`
`
`RELATED PROCEEDING
`United States Court of Appeals (3d Cir.):
`Prometheus Radio Project v. FCC, Nos. 17-1107, 17-1109,
`17-1110, 17-1111, 18-1092, 18-1669, 18-1670, 18-1671,
`18-2943, & 18-3335 (Sept. 23, 2019) (petition for reh’g de-
`nied, Nov. 20, 2019).
`
`
`
`
`1 Certain respondents appeared in more than one capacity in the
`proceedings below.
`
`(II)
`
`

`

`TABLE OF CONTENTS
`
`Page
`Opinions below .............................................................................. 1
`Jurisdiction .................................................................................... 1
`Statutory provisions involved ...................................................... 2
`Statement ...................................................................................... 2
`Reasons for granting the petition ............................................. 14
`A. The decision below is wrong ............................................ 15
`B. This case warrants the Court’s review ........................... 28
`Conclusion ................................................................................... 34
`Appendix A — Court of appeals opinion (Sept. 23, 2019) ..... 1a
`Appendix B — Excerpt of FCC 2016 Order
` (Aug. 25, 2016) ........................................... 57a
`Appendix C — Excerpt of FCC Reconsideration Order
` (Nov. 20, 2017) ......................................... 153a
`Appendix D — Excerpt of FCC Incubator Order
` (Aug. 3, 2018) ........................................... 243a
`Appendix E — Court of appeals order resolving motions
` (Sept. 27, 2019) ......................................... 273a
`Appendix F — Court of appeals order denying rehearing
` (Nov. 20, 2019) ......................................... 277a
`Appendix G   — Court of appeals judgment
` (Sept. 23, 2019) ......................................... 280a
`Appendix H — Court of appeals amended judgment
` (Sept. 27, 2019) ......................................... 283a
`Appendix I — Statutory provisions .................................. 286a
`
`TABLE OF AUTHORITIES
`
`Cases:
`American Airlines, Inc. v. Civil Aeronautics Bd.,
`359 F.2d 624 (D.C. Cir.), cert. denied,
`385 U.S. 843 (1996).............................................................. 31
`Burlington Truck Lines, Inc. v. United States,
`371 U.S. 156 (1962)........................................................ 16, 21
`
`
`
`(III)
`
`

`

`IV
`
`Page
`
`Cases—Continued:
`Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971).............................................................. 23
`FCC v. National Citizens Comm. for Broad.,
`436 U.S. 775 (1978)..................................................... passim
`FCC v. RCA Commc’ns, Inc., 346 U.S. 86 (1953) ............... 18
`FCC v. WNCN Listeners Guild, 450 U.S. 582
`(1981) ........................................................................ 13, 19, 22
`FERC v. Electric Power Supply Ass’n,
`136 S. Ct. 760 (2016) ..................................................... 16, 21
`FPC v. Transcontinental Gas Pipe Line Corp.,
`365 U.S. 1 (1961) ................................................................. 19
`Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.
`State Farm Mut. Auto. Ins. Co., 463 U.S. 29
`(1983) ....................................................... 16, 17, 21, 23, 24, 25
`NAACP v. FCC, 682 F.2d 993 (D.C. Cir. 1982),
`abrogated on other grounds by, FCC v. Fox
`Television Stations, Inc., 556 U.S. 502 (2009) ................. 23
`National Broad. Co. v. United States,
`319 U.S. 190 (1943).................................................... 3, 17, 31
`Prometheus Radio Project v. FCC:
`373 F.3d 372 (3d Cir. 2004), as amended
`(June 3, 2016), cert. denied,
`545 U.S. 1123 (2005) ......................................... passim
`545 U.S. 1123 (2005) .......................................................... 7
`Prometheus Radio Project v. FCC:
`652 F.3d 431 (3d Cir. 2011), cert. denied,
`567 U.S. 951 (2012) ............................................ 8, 9, 30
`567 U.S. 951 (2012) ............................................................ 9
`Prometheus Radio Project v. FCC, 824 F.3d 33
`(3d Cir. 2016) ............................................................. 9, 15, 31
`Stilwell v. Office of Thrift Supervision,
`569 F.3d 514 (D.C. Cir. 2009) ........................... 12, 16, 17, 23
`
`
`
`

`

`V
`
`Case—Continued:
`United States v. Storer Broad. Co., 351 U.S. 192
`(1956) ...................................................................................... 3
`
`Page
`
`
`Statutes:
`Administrative Procedure Act, 5 U.S.C. 701 et seq. ........... 15
`5 U.S.C. 706(2)(A) .................................................. 16, 286a
`Departments of Commerce, Justice, and State, the
`Judiciary, and Related Agencies Appropriations
`Act, 2004, Pub. L. No. 108-199, Div. B, Tit. VI,
`§ 629(3), 118 Stat. 100 ........................................................... 4
`Telecommunications Act of 1996, Pub. L.
`No. 104-104, 110 Stat. 56 ...................................................... 4
`47 U.S.C. 303 note (§ 202(h)) ........................ passim, 292a
`47 U.S.C. 303 ................................................................ 17, 288a
`47 U.S.C. 303(f ) .............................................................. 3, 288a
`47 U.S.C. 309(a) ....................................................... 3, 17, 293a
`
`Miscellaneous:
`The 2002 Biennial Regulatory Review, In re,
`18 FCC Rcd 4726 (2003) ................................................. 4, 29
`2002 Biennial Regulatory Review, In re,
`18 FCC Rcd 13,620 (2003) ................................................ 5, 6
`2006 Quadrennial Regulatory Review, In re,
`23 FCC Rcd 2010 (2008) ................................................... 7, 8
`2010 Quadrennial Regulatory Review, In re,
`26 FCC Rcd 17,489 (2011) .................................................. 24
`2014 Quadrennial Regulatory Review, In re,
`29 FCC Rcd 4371 (2014) ............................................... 24, 27
`Amendment of Sections 73.34, 73.240, and 73.636 of
`the Commission’s Rules Relating to Multiple
`Ownership of Standard, FM, and Television
`Broad. Stations, In re, 50 FCC 2d 1046, amended
`on reconsideration, 53 FCC 2d 589 (1975) ................... 5, 25
`
`
`
`

`

`VI
`
`Miscellaneous—Continued:
`Promoting Diversification of Ownership in the
`Broad. Servs., In re, 23 FCC Rcd 5922 (2008) ................... 8
`S. Conf. Rep. No. 230, 104th Cong., 2d Sess. (1996) ............ 4
`
`Page
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`
`No.
`FEDERAL COMMUNICATIONS COMMISSION AND
`UNITED STATES OF AMERICA, PETITIONERS
`v.
`PROMETHEUS RADIO PROJECT, ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`The Solicitor General, on behalf of the Federal Com-
`munications Commission and the United States, re-
`spectfully petitions for a writ of certiorari to review the
`judgment of the United States Court of Appeals for the
`Third Circuit in this case.
`OPINIONS BELOW
`The opinion of the court of appeals (App., infra, 1a-
`56a) is reported at 939 F.3d 567. The orders of the Fed-
`eral Communications Commission under review are re-
`ported at 31 FCC Rcd 9864 (excerpted at App., infra,
`57a-152a), 32 FCC Rcd 9802 (excerpted at App., infra,
`153a-242a), and 33 FCC Rcd 7911 (excerpted at App.,
`infra, 243a-272a).
`
`JURISDICTION
`The judgment of the court of appeals was entered on
`September 23, 2019 (App., infra, 280a-282a). The court
`
`(1)
`
`

`

`2
`
`of appeals entered an amended judgment on September
`27, 2019 (App., infra, 283a-285a). Petitions for rehear-
`ing were denied on November 20, 2019 (App., infra,
`277a-279a). On February 12, 2020, Justice Alito ex-
`tended the time within which to file a petition for a writ
`of certiorari to and including March 19, 2020. On March
`11, 2020, Justice Alito further extended the time to and
`including April 18, 2020. The jurisdiction of this Court
`is invoked under 28 U.S.C. 1254(1).
`STATUTORY PROVISIONS INVOLVED
`Section 202(h) of the Telecommunications Act of
`1996, as amended, 47 U.S.C. 303 note, provides:
`The [Federal Communications] Commission shall re-
`view its rules adopted pursuant to this section and all
`of its ownership rules quadrennially as part of its
`regulatory reform review under section 11 of the
`Communications Act of 1934 [47 U.S.C. 161] and
`shall determine whether any of such rules are neces-
`sary in the public interest as the result of competi-
`tion. The Commission shall repeal or modify any
`regulation it determines to be no longer in the public
`interest.
`Other relevant statutory provisions are reproduced in
`the appendix to this petition. App., infra, 286a-293a.
`STATEMENT
`Congress has vested the Federal Communications
`Commission (FCC or Commission) with broad authority
`to regulate broadcast markets in the public interest.
`Pursuant to this authority, the FCC has historically
`acted to preserve competition and viewpoint diversity
`by restricting the ability of broadcasters to own multi-
`ple outlets in a single market. In Section 202(h) of the
`Telecommunications Act of 1996, as amended, Congress
`
`
`

`

`3
`
`has directed the FCC to review its ownership rules
`every four years to “determine whether any of such
`rules are necessary in the public interest as the result
`of competition,” and to “repeal or modify any regulation
`it determines to be no longer in the public interest.”
`47 U.S.C. 303 note.
`This case concerns the FCC’s repeated efforts over
`a period of 17 years—thwarted by a series of decisions
`by the same divided panel of the United States Court of
`Appeals for the Third Circuit—to loosen ownership re-
`strictions that the agency has determined are no longer
`necessary in light of dramatic changes to the media
`landscape. In the decision below, the panel majority did
`not question the agency’s findings that the rules’ origi-
`nal competition and viewpoint-diversity rationales no
`longer justified their retention. It nevertheless vacated
`the revised rules solely on the ground that the agency
`had not adequately analyzed the rules’ likely effect on
`female and minority ownership of broadcast stations.
`1. For more than 85 years, the Commission has ex-
`ercised its wide-ranging statutory authority to regulate
`broadcasters in the public interest, both in issuing indi-
`vidual licenses and in promulgating rules. See 47 U.S.C.
`303(f ); 47 U.S.C. 309(a). Before the Internet existed,
`when the media marketplace was dominated by a small
`number of print and broadcast sources of information,
`the FCC exercised this authority to limit common own-
`ership of multiple media outlets in a single market. For
`example, the Commission limited the number of broad-
`cast stations a single entity could own, see National
`Broad. Co. v. United States, 319 U.S. 190 (1943); United
`States v. Storer Broad. Co., 351 U.S. 192 (1956), and
`banned common ownership of a daily newspaper and
`
`
`
`
`

`

`4
`
`broadcast station, see FCC v. National Citizens Comm.
`for Broad., 436 U.S. 775 (1978) (NCCB). These re-
`strictions were designed to prevent undue economic
`concentration and to preserve viewpoint diversity. See
`Prometheus Radio Project v. FCC, 373 F.3d 372, 382-
`386 (3d Cir. 2004), as amended (June 3, 2016) (Prome-
`theus I), cert. denied, 545 U.S. 1123 (2005).
`The Telecommunications Act of 1996 (Act), Pub. L.
`No. 104-104, 110 Stat. 56, established “a pro-competitive,
`de-regulatory national policy framework” that Con-
`gress viewed as better suited to the rapidly evolving
`communications market. S. Conf. Rep. No. 230, 104th
`Cong., 2d Sess. 1 (1996). Consistent with this frame-
`work, Section 202(h) of the Act directs the FCC to re-
`view its ownership rules every four years to determine
`whether they remain “necessary in the public interest
`as the result of competition.” 47 U.S.C. 303 note.2 If
`the Commission determines that any of these rules are
`“no longer in the public interest,” it “shall repeal or
`modify” them. Ibid. “The text and legislative history of
`the 1996 Act indicate that Congress intended periodic
`reviews to operate as an ‘ongoing mechanism to ensure
`that the Commission’s regulatory framework would
`keep pace with the competitive changes in the market-
`place.’ ” Prometheus I, 373 F.3d at 391 (quoting In re
`The 2002 Biennial Regulatory Review, 18 FCC Rcd
`4726, 4732 (2003)).
`Section 202(h) requires the Commission to evaluate
`the continuing need for existing ownership rules in light
`
`
`2 The Act originally required biennial review but was later
`amended to mandate quadrennial review. See Departments of Com-
`merce, Justice, and State, the Judiciary, and Related Agencies Ap-
`propriations Act, 2004, Pub. L. No. 108-199, Div. B, Tit. VI, § 629(3),
`118 Stat. 100.
`
`
`
`

`

`5
`
`interest.”
`of both “competition” and the “public
`47 U.S.C. 303 note. In applying the public-interest cri-
`terion, the FCC has historically considered the values
`of localism and five different types of diversity: “view-
`point, outlet, program, source, and minority and female
`ownership diversity.” In re 2002 Biennial Regulatory
`Review, 18 FCC Rcd 13,620, 13,627 (2003) (2002 Re-
`view); see id. at 13,627-13,645. Of the five, the Commis-
`sion has regarded viewpoint diversity as “paramount,”
`“because the free flow of ideas under-girds and sustains
`our system of government.” Id. at 13,631.
`2. In 2002, in conducting its Section 202(h) review,
`the FCC confronted a media landscape in which “[t]here
`[were] far more types of media available,” “far more
`outlets per-type of media,” and “far more news and pub-
`lic interest programming options available to the public
`* * * than ever before.” 2002 Review, 18 FCC Rcd at
`13,667. In light of this changed environment, the Com-
`mission determined that wide-ranging regulatory re-
`forms were needed. Among other things, the FCC elim-
`inated its ban (originally adopted in 1975) on common
`ownership of daily newspapers and broadcast stations
`in a single market. Id. at 13,748; see In re Amendment
`of Sections 73.34, 73.240, and 73.636 of the Commis-
`sion’s Rules Relating to Multiple Ownership of Stand-
`ard, FM, and Television Broad. Stations, 50 FCC 2d
`1046, 1075, amended on reconsideration, 53 FCC 2d 589
`(1975) (Multiple Ownership). The Commission found
`that the ban was no longer necessary to promote com-
`petition or viewpoint diversity given the proliferation of
`new media sources, 2002 Review, 18 FCC Rcd at 13,748-
`13,754, 13,760-13,767, and that the efficiencies resulting
`from cross-ownership could promote localism, id. at
`13,753-13,760. The FCC replaced the blanket ban with
`
`
`
`

`

`6
`
`new, market-specific limits. Id. at 13,775. The Commis-
`sion also repealed the Failed Station Solicitation Rule,
`which had required certain owners of failed television
`stations to attempt to secure out-of-market buyers for
`their stations before selling to in-market buyers. Id. at
`13,708.
`A divided three-judge panel of the Third Circuit va-
`cated and remanded the FCC’s order in substantial
`part. Prometheus I, supra. The panel unanimously
`held that “reasoned analysis supports the Commission’s
`determination that the blanket ban on newspaper/
`broadcast cross-ownership was no longer in the public
`interest.” 373 F.3d at 398; see id. at 398-400. Two
`judges concluded, however, that the FCC had not ade-
`quately justified the specific substitute limits the agency
`had selected. Id. at 402-411. The panel also vacated and
`remanded the FCC’s repeal of the Failed Station Solic-
`itation Rule, on the ground that the Commission had
`failed to “mention anything about the effect this change
`would have on potential minority station owners.” Id.
`at 420.3 The panel retained jurisdiction over the re-
`mand proceedings. Id. at 435.
`Chief Judge Scirica dissented in part, concluding
`that the panel majority had impermissibly “second-
`guess[ed]” the FCC’s “reasoned policy judgments.”
`Prometheus I, 373 F.3d at 435. He viewed the majority
`as failing to accord proper deference to the Commis-
`sion’s “predictive judgments,” particularly “[g]iven the
`dynamic nature of the industry.” Id. at 439. He viewed
`
`
`3 The panel noted that the FCC had “deferred consideration” of a
`number of “other proposals for advancing minority and disadvan-
`taged businesses and for promoting diversity in broadcasting.” Pro-
`metheus I, 373 F.3d at 421 n.59. It directed the Commission to ad-
`dress those proposals on remand. Ibid.
`
`
`

`

`7
`
`it as more “prudent” to permit the new rules to take ef-
`fect, “monitor the resulting impact on the media mar-
`ketplace, and allow the Commission to refine or modify
`its approach in its next quadrennial review.” Ibid.
`Chief Judge Scirica warned that the court was “[s]hort-
`circuiting the statutory review process,” thereby
`“depriv[ing] both the Commission and Congress [of ] the
`valuable opportunity to evaluate the new rules and the
`effects of deregulation on the media marketplace.” Id.
`at 438.4
`3. In its 2006 Section 202(h) review, the Commission
`noted the continued evolution of media markets. In re
`2006 Quadrennial Regulatory Review, 23 FCC Rcd
`2010, 2022 (2008). In light of these changes, the FCC
`again sought to “relax the 32-year-old newspaper/
`broadcast cross-ownership ban” in favor of a case-by-
`case approach guided by presumptions and a four-fac-
`tor test. Id. at 2030; see id. at 2018-2019. The Commis-
`sion observed that “[t]he steep reduction in newspaper
`circulation in recent years has triggered a cascade of
`negative impacts,” and that regulatory changes were
`appropriate so that cross-ownership restrictions would
`“not unduly stifle efficient combinations that are likely
`to preserve or increase the amount and quality of local
`
`
`4 Several entities filed petitions for writs of certiorari, which this
`Court denied. 545 U.S. 1123 (2005). The government filed a condi-
`tional cross-petition that urged the Court to allow the FCC to at-
`tempt to address the Third Circuit’s concerns in the first instance
`on remand. See Gov’t Conditional Cross-Petition at 3, Prome-
`theus I, supra (No. 04-1168). The government also argued, how-
`ever, that if one or more petitions were granted, the Court should
`also take up the question whether the court of appeals, in vacating
`and remanding various aspects of the revised rules, had improperly
`substituted its own judgment for that of the Commission. Id. at 13.
`
`
`

`

`8
`
`news available to consumers via newspaper and broad-
`cast outlets.” Id. at 2026, 2030. The FCC further ex-
`plained that the proliferation of media sources also
`meant that certain “combinations no longer pose[d] the
`same threat to diversity that they once did.” Id. at 2032;
`see id. at 2031-2032.
`In a separate order designed to promote broadcast-
`ownership diversity, including ownership by women and
`minorities, the FCC adopted various measures to in-
`crease opportunities for “eligible entities,” which it de-
`fined to include certain small businesses. See In re Pro-
`moting Diversification of Ownership in the Broad.
`Servs., 23 FCC Rcd 5922, 5925 (2008); see id. at 5925-
`5927. The Commission sought comment on whether it
`should adopt an expressly race-conscious definition of
`“eligible entit[y],” noting that any such definition would
`need to satisfy strict scrutiny. Id. at 5950.
`On review, the same divided Third Circuit panel
`again vacated the Commission’s regulatory changes in
`significant part. Prometheus Radio Project v. FCC,
`652 F.3d 431, 470 (2011) (Prometheus II), cert. denied,
`567 U.S. 951 (2012). The majority invalidated the FCC’s
`repeal of the blanket newspaper/broadcast cross-
`ownership ban on the ground that the agency had not
`provided adequate notice and opportunity for comment.
`Id. at 445-454. The court also invalidated the “eligible
`entity” definition as arbitrary and capricious, concluding
`that the FCC had failed to “explain how the eligible
`entity definition adopted would increase broadcast
`ownership by minorities and women.” Id. at 469-470.
`The court ordered the Commission to consider a race-
`based definition on remand. Id. at 471 & n.42. The
`court retained jurisdiction over the remanded issues.
`Id. at 472.
`
`
`
`

`

`9
`
`Judge Scirica again dissented in part. Prometheus
`II, 652 F.3d at 472-475. He would have held that the
`agency had complied with notice-and-comment require-
`ments, and he criticized the majority for “preserv[ing]
`an outdated and twice-abandoned ban” on newspaper/
`broadcast cross-ownership. Id. at 472; see id. at 472-
`473. Judge Scirica also dissented from the majority’s
`decision to retain jurisdiction over the remand proceed-
`ings. Id. at 473.5
`4. a. In 2016, after consolidating its 2010 and 2014
`quadrennial reviews,6 the FCC again sought to loosen
`the newspaper/broadcast cross-ownership restrictions,
`while leaving its other ownership rules largely intact.
`See 31 FCC Rcd 9864 (2016 Order) (excerpted at App.,
`infra, 57a-152a); see also id. at 9913. In response to the
`panel’s earlier remand, the agency also analyzed the
`possibility of adopting a race- or gender-specific “eligi-
`ble entity” definition, but it concluded that the record
`evidence did not satisfy the exacting constitutional
`standards for adopting such an approach. App., infra,
`115a-152a. The FCC instead reinstituted the revenue-
`based definition from its prior order. Id. at 76a-77a.
`Rather than justify this definition on the ground that it
`would promote female and minority ownership, how-
`
`
`5 Various entities filed petitions for writs of certiorari, which this
`Court denied. 567 U.S. 951 (2012).
`6 In 2015, interested parties petitioned for review, arguing
`(among other things) that the Commission had unreasonably de-
`layed in adopting a new definition of “eligible entity.” Prometheus
`Radio Project v. FCC, 824 F.3d 33, 37 (3d Cir. 2016). The same panel
`agreed and remanded with an order for the FCC to act promptly,
`again emphasizing the Commission’s “obligation to promote owner-
`ship by minorities and women.” Id. at 48; see id. at 37. The panel
`retained jurisdiction over the remanded issues. Id. at 60.
`
`
`

`

`10
`
`ever, the agency explained that the definition was indis-
`putably well-tailored to promote media ownership by
`small businesses and new entrants—a different, but
`also worthy, diversity goal. Id. at 98a-99a, 101a-111a.
`The agency predicted that the definition would further
`both competition and viewpoint diversity. Id. at 102a.
`On reconsideration motions filed by various parties,
`the Commission determined that changed market con-
`ditions justified a broader overhaul of its ownership
`rules. See 32 FCC Rcd 9802 (Reconsideration Order) (ex-
`cerpted at App., infra, 153a-242a). Among other things,
`the agency repealed its newspaper/broadcast cross-
`ownership rule (as well as a similar rule limiting radio
`and television cross-ownership) and modified the rules
`limiting ownership of multiple television stations in a
`single market. App., infra, 156a-157a. The agency cited
`extensive changes to the media landscape, including the
`substantially increased number of broadcast voices; the
`newspaper industry’s continued decline; radio’s dimin-
`ished importance in contributing to viewpoint diversity;
`and the explosive growth of nontraditional media out-
`lets, such as independent, online news outlets and cable
`and satellite programming. Id. at 168a-186a, 204a-213a,
`216a-223a. The agency explained that each of these de-
`velopments had reduced the likelihood that consolida-
`tion would lead to diminished viewpoint diversity, and
`had increased the potential for certain combinations to
`generate economic efficiencies and help preserve tradi-
`tional media outlets. See, e.g., id. at 159a.
`The FCC also addressed the potential impact of its
`regulatory changes on minority and female ownership.
`Examining the record developed “[a]fter seeking public
`comment on this topic a number of times,” App., infra,
`195a, and recognizing the limitations of existing data,
`
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`11
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`see, e.g., id. at 72a-73a, the FCC concluded that prior
`relaxations of media ownership restrictions had not led
`to an overall decline in minority-owned stations, id. at
`197a-198a, 214a-215a. The Commission further ob-
`served that no commenter had produced meaningful ev-
`idence showing a likely negative impact on minority and
`female ownership, id. at 195a-198a, 214a-215a, 235a-
`236a, and that “two organizations representing minor-
`ity media owners” had sought “relief from the [newspa-
`per/broadcast cross-ownership] rule’s restrictions,” id.
`at 195a. The Commission ultimately concluded that the
`changes would not likely have an adverse effect, and
`that the existing rules could “no longer be justified
`based on the unsubstantiated hope that [they] will pro-
`mote minority and female ownership.” Id. at 236a; see
`id. at 195a-196a, 214a-215a.
`In a separate order, the FCC established a new “in-
`cubator program” to further promote its ownership-
`diversity goals by pairing aspiring broadcast-station
`owners with established broadcasters. 33 FCC Rcd
`7911 (Incubator Order) (excerpted at App., infra, 243a-
`272a); see App., infra, 244a-245a. The FCC declined to
`adopt race- or gender-based eligibility criteria for the
`program for the same reasons it had given in the 2016
`Order. Id. at 264a. Instead, it adopted criteria based
`on applicant size, designed to foster entry into the
`broadcasting sector by entrepreneurs and small busi-
`nesses. Id. at 252a-256a. The Commission noted that
`related eligibility criteria had previously “increased
`successful participation of small businesses owned by
`women and minorities” in broadcast-license auctions,
`and it predicted similar effects for the incubator pro-
`gram. Id. at 260a; see id. at 257a-262a.
`
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`12
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`b. On petitions for review, the same divided panel
`again vacated the Commission’s regulatory action in
`significant part. App., infra, 1a-56a. The majority did
`not challenge the agency’s core findings that market de-
`velopments had rendered the existing ownership rules
`unnecessary (and even affirmatively harmful) with re-
`spect to competition and viewpoint diversity. Instead,
`it held that the FCC’s determination that the revised
`rules would “have minimal effect on female and minor-
`ity ownership” was “not adequately supported by the
`record.” Id. at 27a.
`In support of that holding, the court cited the ab-
`sence of any historical data pertaining specifically to the
`effect of prior rule changes on female ownership. App.,
`infra, 30a. It deemed the historical data pertaining to
`minority ownership insufficiently precise, and it criti-
`cized the agency for not performing a more sophisti-
`cated statistical analysis. Id. at 30a-32a. The court
`acknowledged that “[t]he APA imposes no general obli-
`gation on agencies to produce empirical evidence.” Id.
`at 33a (quoting Stilwell v. Office of Thrift Supervision,
`569 F.3d 514, 519 (D.C. Cir. 2009) (Kavanaugh, J.)
`(brackets in original)). The court found that principle
`inapplicable here, however, on the ground that “the rea-
`soned explanation given by the Commission rested on
`faulty and insubstantial data.” Ibid.
`The court of appeals vacated both the Reconsidera-
`tion Order and the Incubator Order in full, as well as
`the 2016 Order’s definition of “eligible entity.” App., in-
`fra, 34a. The court directed that “[o]n remand the Com-
`mission must ascertain on record evidence the likely ef-
`fect of any rule changes it proposes and whatever ‘eligi-
`ble entity’ definition it adopts on ownership by women
`
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`13
`
`and minorities, whether through new empirical re-
`search or an in-depth theoretical analysis.” Ibid. It fur-
`ther held that, “[i]f [the FCC] finds that its proposed
`definition for eligible entities will not meaningfully ad-
`vance ownership diversity, it must explain why it could
`not adopt an alternate definition that would do so.”
`Ibid. The panel retained jurisdiction over the re-
`manded issues. Id. at 38a.
`Judge Scirica again dissented in part. App., infra,
`39a-56a. He observed that “[n]o party identifies any
`reason to question the FCC’s key competitive findings
`and judgments.” Id. at 48a. As to the new rules’ likely
`effects on ownership of broadcast stations by women
`and minorities, he concluded that the agency had
`reasonably determined