NAB has submitted a filing in opposition to motions to transfer to the U.S. Court of Appeals for the Third Circuit the legal challenge to the FCC’s Further Notice of Proposed Rulemaking and Report and Order on broadcast ownership rules. See it here:
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NATIONAL ASSOCIATION OF
BROADCASTERS,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF
AMERICA,
Respondents.
Case No. 14-1090
(consolidated with Nos.
14-1091, 14-1092, 14-1113)
OPPOSITION OF NATIONAL ASSOCIATION OF BROADCASTERS
TO MOTION TO TRANSFER CONSOLIDATED CASES TO THE
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Jane E. Mago
Jerianne Timmerman
NATIONAL ASSOCIATION OF BROADCASTERS
INTRODUCTION
Four different parties filed four separate petitions for review challenging the
Federal Communications Commission’s (“Commission”) recent order and further
notice of proposed rulemaking regarding its statutorily mandated 2010 and 2014
reviews of the broadcast ownership rules.1 Three of those four petitions were filed in this Court, and all of the cases were then consolidated and transferred here pursuant to the lottery process. See 28 U.S.C. § 2112(a). The filers of the fourth petition—Prometheus Radio Project, Office of Communication, Inc. of the United Church of Christ, National Association of Broadcast Employees and
Technicians—Communications Workers of America, National Organization for
Women Foundation, Media Alliance, Media Council Hawaii, Common Cause,
Benton Foundation, and Free Press (collectively, “Prometheus et al.” or
“Movants”)—insist that the cases should be transferred to the U.S. Court of
1 See 2014 Quadrennial Regulatory Review – Review of the Commission’s
Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996; 2010 Quadrennial Regulatory Review –
Review of the Commission’s Broadcast Ownership Rules and Other Rules Adopted
Pursuant to Section 202 of the Telecommunications Act of 1996; Promoting
Diversification of Ownership in the Broadcasting Services; Rule and Policies
Concerning Attribution of Joint Sales Agreements in Local Television Markets,
Further Notice of Proposed Rulemaking and Report and Order, FCC No. 14-28,
2014 WL 1466887 (rel. Apr. 15, 2014) (“April 15 Order”); 79 Fed. Reg. 28996
(May 20, 2014).
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Appeals for the Third Circuit. Their motion should be denied because there is
simply no basis for transfer under the factors set forth in 28 U.S.C. § 2112(a)(5).
First, the April 15 Order is the product of a separate and new review of the
Commission’s broadcast ownership rules and other attribution issues introduced in 2009, and involves a distinct administrative record. Accordingly, the Third
Circuit’s review of Commission actions from prior quadrennial review proceedings does not afford it any “expertise” that warrants transfer.
Second, the Third Circuit’s retention of jurisdiction over two narrow issues
from the 2006 review proceeding cannot trump the § 2112(a)(5) factors that favor
resolution of the significant new legal questions now before this Court. The issues related to the remand are a minor piece of the larger order on review, and in fact are issues on which the Commission reached no final conclusion. They should not be the tail that wags the dog of venue. Indeed, the only issue on which the Commission actually made a final determination in the April 15 Order has never been before the Third Circuit. Transfer would also set a perilous precedent, effectively converting a narrow remand order into a hook that vests a single circuit with a virtual monopoly over review of any future agency proceeding that combines the remand with entirely new legal issues.
Finally, it is indisputable that transfer would not serve the convenience of
the parties and counsel: all counsel—even Movants’ counsel—are based in
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Washington, D.C, as are many of the petitioning parties and the governmental
Respondents. The gravitational center of this dispute is in this Circuit.
For all of these reasons, transfer is inappropriate in this case.
ARGUMENT
Section 202(h) of the Telecommunications Act of 1996 directs the
Commission to review its broadcast ownership rules every four years to determine whether they continue to serve the public interest, and to repeal or modify any rule that does not. Pub. L. No. 104-104, § 202(h), 110 Stat. 56, 111-12. The Commission’s April 15 Order is a direct response to this statutory mandate. The National Association of Broadcasters (“NAB”), Nexstar Broadcasting, Inc., Howard Stirk Holdings, LLC (collectively, “the Broadcast Parties”), and Prometheus et al. have each sought review of portions of that order on the ground that the Commission has violated Section 202(h) and the Administrative Procedure Act. Because the three Broadcast Parties filed separate petitions for review in this Court, while Prometheus et al. filed their petition for review in the Third Circuit, the Judicial Panel on Multidistrict Litigation conducted a lottery pursuant to 28 U.S.C. § 2112(a) and selected this Court as the venue in which to consolidate the petitions. See Consolidation Order, In re 2014 Quadrennial Regulatory Review, MCP No. 122 (J.P.M.L. June 4, 2014).
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Following consolidation and transfer, Section 2112(a)(5) authorizes further
transfer to another court of appeals “[f]or the convenience of the parties in the
interest of justice.” 28 U.S.C. § 2112(a)(5). Here, Movants seek transfer on the
ground that the Third Circuit reviewed two prior Commission broadcast ownership review proceedings—Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) (“Prometheus I”); and Prometheus Radio Project v. FCC, 652 F.3d 431 (3d Cir. 2011) (“Prometheus II”)—and purportedly retained jurisdiction over discrete aspects of a 2008 Commission quadrennial review order in Prometheus II. See Mot. 2-5. Movants wholly ignore this Court’s own extensive history with the broadcast ownership rules. In any event, general familiarity with similar, prior
agency proceedings is not a statutory basis for transfer, and any purported
familiarity with the issues in this case is negligible given that the April 15 Order is
the product of a new, statutorily mandated review of the broadcast ownership rules, is based on a different record, and raises different legal issues than the orders the Third Circuit reviewed. In fact, the only issue resolved by the April 15 Order
implicates an ownership rule that this Court previously found to be arbitrary and
capricious and remanded to the Commission.
Moreover, the Third Circuit’s remand order and any concerns about this
Court’s ability to grant full relief in light of it do not justify transfer. The issues
implicated by the remand constitute only a minor potion of the Commission’s 211-USCA Case #14-1090 Document #1500765 Filed: 07/03/2014 Page 8 of 26
page order. To require that the new, independent challenges at issue be transferred
to the Third Circuit because of a narrow remand would thwart the outcome of the
lottery, which is designed to give all parties a legitimate chance to be heard in the
forum of their choosing. It would also undermine the convenience of the parties.
For all of these reasons, the motion to transfer should be denied.
I. Transfer To The Third Circuit Would Not Advance The Interest Of
Justice.
A. The April 15 Order Does Not Arise Out Of The Same Proceedings
As Those At Issue In The Third Circuit’s Prometheus Cases.
Movants assert that “[t]he decision under review was conducted pursuant to
a remand from the Third Circuit, which specifically retained jurisdiction with
respect to the remand” and directed that the case “be returned to the same panel.”
Mot. 1. That contention is misleading in three respects.
First, the agency proceedings that led to this action were required by Section
202(h) of the Telecommunications Act and were not undertaken solely in response
to the Third Circuit’s remand order. Irrespective of the remand order, the
Commission must perform a review of its broadcast ownership rules every four
years to determine whether those rules remain necessary. See Pub. L. No. 104-
104, § 202(h); see also Mot. 2 (conceding that “the Commission must conduct
periodic reviews of its broadcast ownership rules” under Section 202(h)) (emphasis added). Far from turning on “actions conducted pursuant to the prior Third Circuit
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remands,” Mot. 10, or the 2002 and 2006 reviews at issue in Prometheus I and II,
the Commission’s April 15 Order resulted from the Commission’s required 2010
and 2014 reviews. That the Commission elected to combine its action on remand
with the new 2010 and 2014 review proceedings, instead of addressing them in two or three separate orders, does not convert this action into a follow-on from an
earlier Third Circuit decision.
Second, the April 15 Order involves a substantially different record than
those at issue in Prometheus I and II. Here, for instance, the Commission held a
series of public workshops between November 2009 and May 2010, sought new
comments “on a wide range of issues to help determine whether the current media ownership rules continue to serve the Commission’s policy goals,” and
commissioned eleven peer-reviewed economic studies to provide new, wide ranging data to inform the Commission’s review. April 15 Order at *4; see also,
e.g., id. at *78 (describing Media Bureau’s 2012 report, the “first electronic
analysis of commercial broadcast ownership data submitted pursuant to the revised biennial reporting requirements,” which is part of a new series designed to study
minority and women ownership trends). In fact, the “high level of interest and
participation” in the 2010 review generated an unusually “extensive record that
continues to attract significant and substantive input well after the formal comment periods have ended.” Id. at *1. All of these efforts post-dated the 2008 order at
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issue in Prometheus II, meaning that the April 15 Order relies on record evidence
that has never been before the Third Circuit.
Third, the substance of the April 15 Order differs from the actions the Third
Circuit reviewed in the Prometheus actions. In the Commission’s prior
proceedings, it conclusively determined whether to modify or repeal various
broadcast ownership rules and set out in a separate 2008 order measures addressing broadcast ownership diversity.2 See Prometheus II, 652 F.3d at 437. Here, the Commission declined to take any final action with respect to the modification or repeal of its broadcast ownership rules or their effects on minority and female ownership, insisting that it lacked sufficient information to make conclusive judgments at this time and requesting additional comments from industry participants. April 15 Order at *74; see also id. at *1 (explaining that the
Commission rolled the 2010 review proceedings into a new 2014 review
proceeding, and only “propos[ed]” new rules to be modified or adopted on the
basis of a new 2014 record), id. at *74 (concluding that the Commission was “not
in a position at this time” to adopt a standard “which expressly would recognize
the race and ethnicity of applicants, or any other race- or gender-targeted
2 Promoting Diversification of Ownership in the Broadcasting Services, MB
Docket No. 07-294, Report and Order and Third Further Notice of Proposed
Rulemaking, 23 FCC Rcd 5922 (2008) (“Diversity Order”).
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measures”). The only final rule the Commission did adopt concerns television
joint sales agreements (“JSAs”),3 id. at *107-18, which were not at issue in the
2008 proceeding and have never been on review in the Third Circuit, see id. at *4.4
Any familiarity the Third Circuit retains with the intricacies of the rules at issue in
previous Commission review cycles would thus be of little benefit when reviewing
this new agency proceeding and order.
In any event, general familiarity with the regulatory background of the
Commission’s broadcast ownership rules is an insufficient basis for transfer to the Third Circuit, particularly given this Court’s own extensive history with these
rules. When applying § 2112(a)(5), courts may not presume that individual
circuits—and especially a specific panel of judges—have specialized expertise
merely because they have previously adjudicated cases involving that subject
3 The Commission’s rule provides that television JSAs for more than 15% of a
television station’s weekly advertising time will be attributable (i.e., counted) for
determining compliance with the broadcast ownership rules. See April 15 Order at *107.
4 Movants’ insistence that the 2002 proceeding reviewed in Prometheus I
resulted in a radio JSA rule, Mot. 2-3, is irrelevant. The different records that led
to the two rules—directed at distinct sets of broadcasters and separated by over ten years of technological developments—make the Third Circuit’s purported
familiarity with the issues dubious at best. Furthermore, the Third Circuit rejected
challenges to the radio JSA rule in Prometheus I, 373 F.3d at 429-30, and thus the radio JSA rule was never part of that Court’s remand, much less the only remand order potentially relevant here, which was issued in Prometheus II. In fact, the Commission initiated an entirely separate proceeding for television JSAs, which was ultimately resolved in the April 15 Order.
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matter. See, e.g., Am. Public Gas Ass’n v. FPC, 555 F.2d 852, 857 (D.C. Cir.
1976) (per curiam) (“familiarity with the background of the present controversy” is
irrelevant when considering “the interest of justice”); Pub. Serv. Comm’n for State
of N.Y. v. FPC, 472 F.2d 1270, 1272 (D.C. Cir. 1972) (“This [transfer]
motion . . . implicitly invokes a theory of specialization of tribunals. That is not
what Congress has provided. The contention based on specialization of particular judges is even more debatable.”). Rather, courts should presume that all circuits are equally capable of resolving a case and look only to practical circumstances at the time of transfer that might favor a different forum. To hold otherwise would thwart Congress’s intent that venue be determined by lottery, not perceived judicial expertise. Cf. id. at 1272 (transfer based on transferee court’s familiarity with issues would counteract pre-lottery statutory venue scheme).
Furthermore, Movants’ theory that the Third Circuit possesses relevant
expertise is suspect here. Even putting aside that the new record in this proceeding was not before the Third Circuit and that the April 15 Order does not resemble prior orders, Prometheus II was decided three years ago. It would be unrealistic to expect that the prior Third Circuit panel still has the complexities of the now superseded 2008 record and case fresh in its memory. At best, the Third Circuit may have some general knowledge of similar proceedings.
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By that metric, however, this Court is an equally if not more suitable forum,
given its extensive history with challenges to the Commission’s ownership
regulations. See, e.g., Sinclair Broad. Grp., Inc. v. FCC, 284 F.3d 148 (D.C. Cir.
2002) (reviewing “eight voices test” in local television ownership rule); Fox
Television Stations, Inc. v. FCC, 280 F.3d 1027, 1040-45 (D.C. Cir. 2002)
(reviewing national television ownership limit); Tribune Co. v. FCC, 133 F.3d 61
(D.C. Cir. 1998) (reviewing request for waiver from newspaper cross-ownership
rule); NCCB v. FCC, 555 F.2d 938 (D.C. Cir. 1977) (reviewing
newspaper/broadcast cross-ownership ban). Indeed, the rule on television JSAs
adopted in the April 15 Order adversely affects the Broadcast Parties primarily
because it makes the vast majority of JSAs illegal under the Commission’s local
television ownership rule – a rule that has remained unchanged since 1999, even
though this Court found it to be arbitrary and capricious and remanded it to the
Commission in 2002. See Sinclair, 284 F.3d at 169; see also id. at 171-72
(Sentelle, J., concurring and dissenting in part) (noting that he would have vacated,
not merely remanded, the rule). This Court, accordingly, has relevant history with
the ownership rule that is of central concern to the Broadcast Parties in this case.
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B. The Third Circuit’s Purported Retention of Jurisdiction Over
Minor Aspects Of The Commission’s 2008 Order Does Not
Trump The Statutory Factors Favoring Venue In This Court.
Despite the significant differences between the actions and record under
review here, and those before the Third Circuit in Prometheus I and II, Movants
argue that transfer is necessary because “the decision under review involves
actions conducted pursuant to prior Third Circuit remands, over which the Third
Circuit explicitly retained jurisdiction.” Mot. 10. That contention is meritless.
As an initial matter, there is no support for the idea that § 2112(a)(5)
requires transfer where a matter properly subject to the lottery process resulted in part from a remand order by another circuit. The standards Congress prescribed—whether another court has a practical advantage in terms of judicial administration and whether transfer would benefit the parties—still govern such cases. Movants’
own authorities illustrate this point: In Arkansas Midland Railroad Co. v. Surface
Transportation Board, 2000 WL 1093266 (D.C. Cir. June 8, 2000), for instance,
this Court explicitly noted that “venue is proper in this Court” pursuant to
§ 2112(a)(1) over an agency order that—as here—was entered in part on remand
from another court. Id. at *1 (cited at Mot. 9); see also Eschelon Telecom, Inc. v.
FCC, 345 F.3d 682 n.1 (8th Cir. 2003) (case was “properly before [the Eighth
Circuit]” even though the order under review “represents the FCC’s third attempt
to craft a decision that comports with the Telecommunications Act of 1996” and
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another court had vacated and remanded the prior order). As long as there is a
valid basis for jurisdiction in this Court for an agency challenge—which is
indisputably true here given the lottery process—the existence of a remand does
not mandate that the April 15 Order be reviewed by the Third Circuit. At most, a
prior remand is a factor this Court may consider in its discretionary venue analysis.
This Court should not exercise its discretion to transfer based on the Third
Circuit’s purported retention of jurisdiction. As explained above, the April 15
Order resulted from a distinct proceeding—the Commission’s brand new,
statutorily-mandated 2010 and 2014 reviews—that was initiated four years after
the proceeding the Third Circuit reviewed in Prometheus II, and almost a decade
after the 2002 actions at issue in Prometheus I. The latest proceeding with its
different record and order cannot reasonably be described as an “action on
remand” within the meaning of either prior Prometheus action.
Furthermore, the issues implicated by the Prometheus II remand are only a
small part of the April 15 Order. The Third Circuit’s remand was limited to two
issues: (1) the Commission’s newspaper/broadcast cross-ownership rule, and (2)
the Commission’s actions with respect to broadcast opportunities for minorities
and women. Prometheus II, 652 F.3d at 437-38, 471-72. As Movants candidly
admit, the Commission did nothing to address either issue in the April 15 Order.
Mot. 7. Rather, as described above, the Commission simply rolled its 2010
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quadrennial review into a new 2014 review cycle, effectively punting its decision
on these issues until after the conclusion of yet another quadrennial review. And—
more importantly—the Commission considered numerous other issues that cannot
plausibly be interpreted as falling within the remand order by seeking comment on all of its broadcast ownership rules and issuing a new order regarding attribution of television JSAs. Of the 211 pages comprising the order on review, the issues even remotely related to the Third Circuit’s remand cover a mere 56 pages.
The Commission’s decision to roll the remand issues into its 2010 review,
and now its ongoing 2014 review, does not automatically sweep every issue
addressed in the April 15 Order—not to mention, presumably, all of the issues that will be addressed in the Commission’s order at the conclusion of the 2014
proceedings—into the scope of the Third Circuit’s jurisdiction over remanded
issues. Even that court apparently did not foresee or intend such a result. See
Prometheus II, 652 F.3d at 471 (instructing the Commission to address the
remanded issues “before it completes its 2010 Quadrennial Review”). The
Commission’s failure to act with respect to two discrete issues as part of a
comprehensive review of all broadcast ownership rules should not be the tail that
wags the dog of venue.
Nor do the authorities cited by Movants, Mot. 9-10, support their suggestion
that the Third Circuit’s limited remand should be construed to confer a monopoly
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over future, related broadcast ownership rule challenges. This Court’s unpublished decision in Arkansas Midland involved transfer of the last of three fact-specific
disputes—the last partially resulting from a remand—concerning the sale of a
specific “52-mile stretch of railroad in Southwestern Arkansas.” GS Roofing
Prods. Co. v. Surface Transp. Bd., 262 F.3d 767, 770 (8th Cir. 2001). Arkansas
Midland thus does not support the notion that a specific panel of one circuit could
effectively lay claim to jurisdiction over an entire subject matter area by remanding limited aspects of one order in a distinct proceeding. 2000 WL 1093266, at *1
(transferred because Eighth Circuit had previously resolved “same or interrelated” proceedings). And there are no difficult law-of-the-case issues like those that
appear to have governed the specific adjudicatory disputes in Arkansas Midland.5
Likewise, the Senate Report to the 1988 amendment of § 2112(a) and cases
cited therein stand for nothing more than the proposition that courts retain
5 Given the limited nature of the Third Circuit’s remand, only two areas could
even conceivably raise law-of-the-case concerns, and neither is relevant in light of the different record and substantively different order on review here. First, the
Third Circuit’s rejection of the Commission’s permanent waivers to its
newspaper/broadcast cross-ownership rule on procedural grounds is irrelevant in
light of the independent procedural posture of the April 15 Order and the
Commission’s call for additional public comment before determining whether to
modify or repeal that rule. See April 15 Order at *31-32. Second, the Third
Circuit’s rejection of the Commission’s revenue-based eligibility standard in its
Diversity Order as unsupported by the then-existing administrative record will not
affect this Court’s assessment of the Commission’s failure to adopt a new diversity standard now, nor its decision to compile a new record on the issue. Id. at *74.
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discretion within the lottery system to transfer sequential and closely related
agency orders to the circuit that reviewed the original order. The rationale for this
practice is that some orders issued “in the course of the same or interrelated
administrative proceedings” are so similar to previous orders that they may
effectively be treated as “the same order.” S. Rep. No. 100-263, at 5 (1987),
reprinted in 1987 U.S.C.C.A.N. 3198, 3201 (emphasis added); see also, e.g., Am. Civil Liberties Union v. FCC, 486 F.2d 411, 414 (D.C. Cir. 1973) (cited in S. Rep.
No. 100-263) (subsequent order should be treated as “same order” where it was
“issued during the course of the same proceeding” and would be “reviewed on the same record”). As explained above, the April 15 Order cannot be said to be “the same order” as that reviewed in Prometheus II.
Tellingly, the Third Circuit itself has rejected a version of Movants’
argument: It refused to transfer Prometheus I to this Court even though the
underlying order was issued in part in response to prior remands from this Court in Sinclair and Fox, concluding instead that the order resulted from different
proceedings and the issues were not sufficiently similar to warrant transfer. See
Prometheus Radio Project v. FCC, No. 03-3388, Order 4-5 (3d Cir. Sept. 15,
2003). As the Third Circuit observed, some remands, as here, simply do not
involve “the sort of specific mandate[s] that require[] hands-on stewardship by the
same judges that issued the prior decision.” Id.
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Finally, adopting Movants’ theory in this case sets a dangerous precedent by
effectively enabling the Third Circuit to retain jurisdiction over the Commission’s
future broadcast ownership proceedings in perpetuity—an outcome surely not
intended by Congress in light of Section 2112(a)(5) and the review provisions of
the Communications Act, 47 U.S.C. § 402(a), (b). Holding that a narrow remand
confers jurisdiction over unrelated Commission action that is statutorily required to take place every four years essentially ensures that any future challenges must be heard by the Third Circuit, particularly given the Commission’s apparent habit of rolling prior quadrennial reviews into new proceedings. To interpret Prometheus II in that manner would undermine the well-settled principle that federal courts “possess only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Missouri v. Jenkins, 515 U.S. 70, 134 (1995) (Thomas, J., concurring) (admonishing courts to end oversight after issuing a remedy rather than retaining jurisdiction over implementation of the court’s order).
The statutorily mandated venue lottery has occurred, this Court has been
selected, and the cases have been consolidated here. That the order on review
touched on (but did not determine) two issues related to the Third Circuit’s remand in the course of conducting a new quadrennial review of all of the broadcast
ownership rules is not reason to deprive the Broadcast Parties of the forum of their USCA Case #14-1090 Document #1500765 Filed: 07/03/2014 Page 20 of 26
choice—or to attribute the same court or panel exclusive jurisdiction over an entire regulatory field for years to come.
C. Movants’ Requested Relief And The Doctrine Of Comity Do Not
Support Transfer.
Movants raise two additional grounds for transfer—this Court’s supposed
inability to issue a writ of mandamus, which Movants requested in the alternative
in their petition for review of the April 15 Order, and the doctrine of comity among
sister circuits. Both of these arguments are meritless.
Movants argue first that transfer is necessary “in light of the relief
Prometheus has requested”: a writ of mandamus compelling compliance with the
Third Circuit’s Prometheus II remand. Mot. 10. Without support or analysis,
Movants baldly assert that “only the Third Circuit, and indeed, the same panel in
the Third Circuit,” can grant such relief. Mot. 11. But this Court is equally
capable of granting the extraordinary relief of mandamus. See 28 U.S.C. § 1651(a)
(granting “all” federal courts authority to issue writs “necessary or appropriate in
aid of their respective jurisdictions”). Given that this Court’s jurisdiction to review
Commission proceedings is not in question, it is difficult to see how it would lack
the ability to grant mandamus relief if it determines that such relief is appropriate.
Finally, contrary to Movants’ claims, the doctrine of comity is not applicable
here. The proposition that this Court should defer to the purportedly superior
jurisdictional claim of another circuit flies in the face of § 2112(a), which does not
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include comity as a factor and already provides a mechanism through the lottery
process to resolve potential jurisdictional disputes between coequal courts.
The authority that Movants marshal for their extra-statutory position is also
inapposite. Colorado River Water Conservation District v. United States, 424 U.S.
800 (1976) (quoted at Mot. 11), is about “concurrent federal proceedings,” id. at
819 (emphasis added), not the factors governing transfer of a proceeding already
consolidated in one court based on the outcome of a lottery. This fact answers
Movants’ concern regarding the avoidance of “piecemeal litigation”: Only one
court will decide these actions regardless of how this motion is resolved, so
transfer is not necessary to avoid the potential for divergent holdings. Movants’
reliance on Eschelon Telecom, Inc. v. FCC, 345 F.3d 682 (8th Cir. 2003) (cited at
Mot. 11), is similarly misplaced. There, the Eighth Circuit transferred an action to
this Court because a separate mandamus petition was already pending in this
Court, and thus there was a potential for conflicting decisions in substantially
similar cases. Id. at 682 n.1. This threat is absent here because the Third Circuit
already transferred to this Court Movants’ request for mandamus relief together
with their petition for review.
This Court has sufficient authority to issue all necessary and appropriate
relief in these cases, and such action would not improperly invade the sphere of a coequal court.
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II. The Convenience Of The Parties Overwhelmingly Favors Resolution In
This Court.
Prometheus et al. make only passing reference to § 2112(a)(5)’s requirement
that the Court consider the “convenience of the parties” before transferring these
actions, Mot. 11-12, but this statutory mandate is an independent factor that
overwhelmingly supports venue in this Court. Movants assert that transfer “will
not cause material inconvenience to the parties,” Mot. 11, but the test under
§ 2112(a)(5) is which circuit is most convenient. On that score, there can be no
doubt that this Court is the more appropriate forum. Section 2112(a)(5)’s test
“center[s] around the physical location of the parties,” ITT World Commc’ns, Inc.
v. FCC, 621 F.2d 1201, 1208 (2d Cir. 1980), considering both “the location of
counsel [and the] location of the parties,” Liquor Salesmen’s Union Local No. 2 of
State of N.Y. v. N.L.R.B., 664 F.2d 1200, 1205 (D.C. Cir. 1981); see also Eschelon,
345 F.3d at 682 n.1 (“[M]ost of the parties have D.C. counsel of record;
consequently, the convenience of the parties prong of the analysis also support the District of Columbia venue”). Here, as Movants concede, all counsel are located
in Washington, D.C., Mot. 11, as are many of the parties, including NAB and the
governmental Respondents. Movants attempt to avoid this basic fact by arguing
that counsel are “already familiar with practice in the Third Circuit” and that
“technology has made the geographical distance between Philadelphia and
Washington a trivial consideration.” Mot. 11. But experience and technology
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cannot trump Congress’s assessment of the relevant factors, including physical
proximity of the parties and their counsel, when weighing the burdens of transfer.
Movants’ claim that the parties will be burdened by the process of
“familiarizing this Court with the history of this litigation and addressing the
difficult issues of applying the Third Circuit’s law of the case,” Mot. 11-12, does
not dictate a different result. As explained above, there is no need for this Court to wade into the intricacies of the Commission’s record in either the 2006 or 2002
quadrennial reviews. See supra pp. 6-7. Rather, this Court need only consider the new 2010 record—a record with which the Third Circuit has no experience or
expertise—and only to the extent that it finds the Commission’s record relevant to
the legal question of whether the Commission complied with its statutory review
mandate and its obligations under the APA. As for the purported difficulty of
applying the Third Circuit’s prior Prometheus decisions, this amounts to nothing
more than analyzing and applying prior decisions to this case, to the extent they
may be relevant. These are not “burdens”—and certainly not an imposition on
counsel to brief and explain, whose job it is to do so—that can outweigh the
inconvenience to the parties of litigating outside of this Court.
CONCLUSION
For the foregoing reasons, NAB respectfully requests that this Court deny the Motion to Transfer.
Noted Francisco Montero, Managing Partner, Fletcher, Heald & Hildreth, P.L.C.: “The DC Circuit is the federal appellate court that has the most expertise in hearing challnges to actions by independent regulatory agencies like the FCC under the Administrative Review Act (APA). The NAB’s challenge to the FCC’s JSA order accuses the FCC’s procedure of being “arbitrary and capricious”. The arbitrary and capricious language is a direct reference to the APA which requires that in order to set aside an agency action not subject to formal trial-like procedures, the court must conclude that the regulation is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” Here, four different parties, including the NAB, filed petitions challenging the FCC’s April 15th JSA Order which made JSA’s of over 15% attributable under the FCC’s multiple ownership rules and also challenging the further notice of proposed rulemaking regarding its 2010 and 2014 reviews of the broadcast ownership rules. Three of those petitions were filed in the DC Circuit, and all of the cases were then consolidated and transferred to the DC Circuit pursuant to a lottery process. But Prometheus petitioned to move the consolidated case to the Third Circuit covering Delaware, New Jersey and Pennsylvania, because it was the court that remanded the FCC’s ownership rule revisions. The NAB wants to keep the appeal before the DC Circuit because the Third Circuit does not have any special expertise that warrants the transfer. The NAB’s opposition says that the FCC’s April 15 JSA Order was a new review of the broadcast ownership and ownership attribution rules, and the Third Circuit’s review of the FCC’s actions from the prior quadrennial review proceedings does not afford it any “expertise” that warrants the transfer. The NAB notes that just because the Third Circuit heard the two narrow issues from the 2006 review proceeding doesn’t mean it possesses any special status to address the largely new legal questions raised in the appeal of the JSA Order. That, according to the NAB, would result in “the tail that wags the dog of venue”. Also, the NAB asserts that transfer would set an unwanted precedent, effectively converting the Third Circuit’s narrow remand order into a hook that vests it with a monopoly over FCC review of future agency proceeding that touch on the remand, if they largely deal with entirely new legal issues. It may also be that, aside from losing the DC Circuit’s expertise in APA review cases, combining the appeals could dilute the important new issues raised in the appeal of the JSA Order and perhaps allow them to get swallowed up in a much broader review of the broadcast ownership rules.”
