NAB’s JSA Appeal May Get ‘Friendly’ Court

The U.S. Court of Appeals in Washington has been tapped to consider the National Association of Broadcasters’ challenge to the FCC’s decision to crack down on joint sales agreements, a move that bodes well for broadcasters, broadcast industry sources said.

Public interest group representatives have been hoping that the case would be assigned to the U.S. Court of Appeals for the Third Circuit in Philadelphia, which broadcasters say has been less friendly to broadcast industry interests than the D.C. Circuit court over the years.

“That [the assignment of the case to the DC circuit court] is good news for us, since the DC Circuit has always been less hesitant to overturn ‘arbitrary and capricious’ FCC decisions,” one broadcast industry source said.

The NAB challenged the FCC’s March 31 crackdown on JSAs, alleging that the agency ruling barring the formation of new JSAs — and requiring existing JSAs to unwind within two years, unless the broadcasters can convince the FCC to issue them a public interest waiver — went too far and was arbitrary and capricious.

The Prometheus Radio Project, a citizens group that favors strict broadcast ownership limits, petitioned the Philadelphia court to review the FCC’s JSA ruling, on grounds that the agency crackdown didn’t go far enough.

The decision to hear the case in Washington was made by lottery.

The case could still end up in the Philadelphia court.

Andrew Schwartzman, a Prometheus attorney, told TVNewsCheck that the group would ask that the case be transferred to Philadelphia on grounds that that court had considered previous challenges to the FCC’s ownership rules.

“Our view is the 3rd Circuit is the only court which can hear the case for jurisdictional reasons,” Schwartzman said.

NAB had no comment.