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Precedential United States Court of Appeals for The PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 03-3388, 03-3577, 03-3578, 03-3579, 03-3580, 03-3581, 03-3582, 03-3651, 03-3665, 03-3675, 03-3708, 03-3894, 03-3950, 03-3951, 03-4072, 03-4073 & 04-1956 PROMETHEUS RADIO PROJECT vs. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA Prometheus Radio Project, Petitioner in No. 03-3388 Media General, Inc., Petitioner in No. 03-3577 National Association of Broadcasters, Petitioner in No. 03-3578 Network Affiliated Stations Alliance, ABC Television Affiliates Association, CBS Television Affiliates Association and NBC Television Affiliates, Petitioners in No. 03-3579 Fox Entertainment Group, Inc. and Fox Television Stations, Inc., Petitioners in No. 03-3580 Viacom Inc., Petitioner in No. 03-3581 National Broadcasting Company, Inc., and Telemundo Communications Group, Inc., Petitioners in No. 03-3582 Sinclair Broadcast Group, Inc., Petitioner in No. 03-3651 Media Alliance, Petitioner in No. 03-3665 Paxson Communications Corporation, Petitioner in No. 03-3675 National Council of the Churches of Christ in the United States, Petitioner in No. 03-3708 Tribune Company, Petitioner in No. 03-3894 Paxson Communications Corporation, Petitioner in No. 03-3950 Emmis Communications Corporation, Petitioner in No. 03-3951 Center for Digital Democracy and Fairness & Accuracy in Reporting, Petitioners in No. 03-4072 Clear Channel Communications, Petitioner in No. 03-4073 American Hispanic Owned Radio Association, Civil Rights Forum on Communications Policy, League of United Latin American Citizens, Minority Business Enterprise Legal Defense and Education Fund, Minority Media and Telecommunications Council, National Asian American Telecommunications Association, National Association of Latino Independent Producers, National Coalition of Hispanic Organizations, National Council of La Raza, National Hispanic Media Coalition, National Indian Telecommunications Institute, National Urban League, Native American Public Telecommunications, Inc., PRLDEF-Institute for Puerto Rican Policy, UNITY: Journalists of Color, Inc. and Women’s Institute for Freedom of the Press, Petitioners in No. 04-1956 On Petition for Review of An Order of the Federal Communications Commission (FCC No. 03-127) Argued February 11, 2004 Before: SCIRICA, Chief Judge, AMBRO and FUENTES, Circuit Judges (Filed June 24, 2004) Andrew Jay Schwartzman, Esquire (Argued) Cheryl A. Leanza, Esquire Media Access Project 1625 K Street, N.W., Suite 1118 Washington, DC 20006 Counsel for Prometheus Radio Project, Center for Digital Democracy and Fairness and Accuracy in Reporting Shelby D. Green, Esquire Pace University School of Law 78 North Broadway White Plains, NY 10603 Counsel for National Council of the Churches of Christ in the United States Samuel L. Spear, Esquire Spear Wilderman Borish Endy Spear & Runckel 230 South Broad Street, Suite 1400 Philadelphia, PA 19102 Counsel for Prometheus Radio Project Angela J. Campbell, Esquire (Argued) James A. Bachtell, Esquire Karen Henein, Esquire 2 Institute for Pubic Representation Georgetown University Law Center 600 New Jersey Avenue, N.W., Suite 312 Washington, DC 20001 Counsel for Media Alliance and Office of Communication of the United Church of Christ, Inc. Glen B. Manishin, Esquire (Argued) Stephanie A. Joyce, Esquire Kelley Drye & Warren LLP 8000 Towers Crescent Drive, Suite 1200 Vienna, VA 22182 Counsel for Consumers Union and Consumer Federation of America Robert A. Long, Jr., Esquire Kevin C. Newsom, Esquire Heidi C. Doerhoff, Esquire Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, DC 20004-1401 Counsel for CBS Television Network Affiliates Association, NBC Television Affiliates and Network Affiliated Stations Alliance Wade H. Hargrove, Esquire Mark J. Prak, Esquire Brooks, Pierce, Mclendon, Humphry & Leonard 1600 Wachovia Capitol Center 150 Fayetteville Street Mall Raleigh, NC 27601 Counsel for ABC Television Affiliates Association Henk Brands, Esquire (Argued) Patrick S. Campbell, Esquire John H. Longwell, Esquire Paul, Weiss, Rifkind, Wharton & Garrison LLP 1615 L Street, N.W., Suite 1300 Washington, DC 20036 Counsel for Fox Entertainment Group, Inc., Fox Television Stations, Inc. and Viacom Inc. 3 Michael K. Kellogg, Esquire Mark L. Evans, Esquire Kellogg, Huber, Hansen, Todd & Evans, PLLC 1615 M Street, N.W., Suite 400 Washington, DC 20036 Counsel for National Broadcasting Company, Inc. and Telemundo Communications Group, Inc. Donald B. Verrilli, Jr., Esquire (Argued) Ian Heath Gershengorn, Esquire Elaine J. Goldenberg, Esquire Jenner & Block, LLC 601 Thirteenth Street, N.W., 12th Floor Washington, DC 20005 Henry L. Baumann, Esquire Jack N. Goodman, Esquire Jerianne Timmerman, Esquire National Association of Broadcasters 1771 N Street, N.W. Washington, DC 20036 Counsel for National Association of Broadcasters John R. Feore, Jr., Esquire Michael D. Hays, Esquire Kenneth D. Salomon, Esquire M. Anne Swanson, Esquire Theodore L. Radway, Esquire Jason E. Rademacher, Esquire Dow, Lohnes & Albertson, PLLC 1200 New Hampshire Avenue, N.W., Suite 800 Washington, DC 20036-6802 Counsel for Millcreek Broadcasting, LLC, Media General, Inc., Simmons Media Group and Paxson Communications Corporation 4 John E. Fiorini III, Esquire† Helgi C. Walker, Esquire†* Eve Klindera Reed, Esquire†* Andrew G. McBride, Esquire* Richard J. Bodorff, Esquire* James R. Bayes, Esquire †† Kathleen A. Kirby, Esquire †† Richard E. Wiley, Esquire †† (Argued) Martha E. Heller, Esquire †† Wiley Rein & Fielding LLP 1776 K Street, N.W. Washington, DC 20006 † Counsel for Emmis Communications Corporation * Counsel for Clear Channel Communications, Inc. †† Counsel for Newspaper Association of America, Belo Corporation, Gannett Co., Inc. and Morris Communications Company, LLC Kathryn R. Schmeltzer, Esquire (Argued) Barry H. Gottfried, Esquire (Argued) Tony Lin, Esquire Paul A. Cicelski, Esquire Scott R. Flick, Esquire Christopher J. Sadowski, Esquire Shaw Pittman LLP 2300 N Street, N.W. Washington, DC 20037 Counsel for Sinclair Broadcast Group, Inc. and Univision Communications Inc. Miguel A. Estrada, Esquire (Argued) Michael J. Edney, Esquire Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Counsel for Clear Channel Communications, Inc. 5 Carter G. Phillips, Esquire (Argued) R. Clark Wadlow, Esquire Richard D. Klingler, Esquire James P. Young, Esquire Anita L. Wallgren, Esquire Sidley Austin Brown & Wood LLP 1501 K Street, N.W. Washington, DC 20005 Crane H. Kenney, Esquire Tribune Company 435 N. Michigan Avenue Chicago, IL 60611 Counsel for Tribune Company Jerome M. Marcus, Esquire (Argued) Jonathan Auerbach, Esquire Berger and Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 Dianne Smith, Esquire Capitol Broadcasting Company, Inc. 2619 Western Blvd. 27606, Box 12000 Raleigh, NC 27605 Counsel for Capitol Broadcasting Company, Inc. David Honig, Esquire Nicolaine Lazarre, Esquire (Argued) Fatima Fofana, Esquire Julie Smith, Esquire Minority Media and Telecommunications Council 3636 16th Street N.W., #B-366 Washington, DC 20010 Counsel for American Hispanic Owned Radio Association, Civil Rights Forum on Communications Policy, League of United Latin American Citizens, Minority Business Enterprise Legal Defense and Education Fund, Minority Media and Telecommunications Council, National Asian American Telecommunications Association, National Association of Latino Independent Producers, National Coalition of Hispanic Organizations, National Council of La Raza, National 6 Hispanic Media Coalition, National Indian Telecommunications Institute, National Urban League, Native American Public Telecommunications, Inc., PRLDEF-Institute for Puerto Rican Policy, UNITY: Journalists of Color, Inc. and Women’s Institute for Freedom of the Press Stephen D. Gavin, Esquire Katrina C. Gleber, Esquire Patton Boggs LLP 2550 M Street, N.W. Washington, DC 20037 Counsel for Nassau Broadcasting Holdings, Inc., and Nassau Broadcasting II, LLC David A. Irwin, Esquire Irwin, Campbell & Tannenwald 1730 Rhode Island Avenue, N.W., Suite 200 Washington, DC 20036 Counsel for Family Stations, Inc., Sunbelt Communications Company, Press Communications, LLC and Diversified Communications James L. Winston, Esquire Rubin, Winston, Diercks, Harris & Cooke 1155 Connecticut Avenue, N.W., 6th Floor Washington, DC 20036 Counsel for National Association of Black Broadcasters, Inc. and Rainbow Push Coalition, Inc. R. Hewitt Pate, Assistant Attorney General Makan Delrahim, Deputy Assistant Attorney General Catherine G. O’Sullivan, Esquire Nancy C. Garrison, Esquire James J. Fredricks, Esquire United States Department of Justice Antitrust Division 601 D Street, N.W. Patrick Henry Building Washington, DC 20530 Counsel for United States of America John A. Rogovin, General Counsel (Argued) 7 Daniel M. Armstrong, Associate General Counsel Jacob M. Lewis, Associate General Counsel (Argued) C. Grey Pash, Jr., Esquire Nandan M. Joshi, Esquire Federal Communications Commission 445 12th Street, S.W. Washington, DC 20554 Counsel for the Federal Communications Commission OPINION OF THE COURT Table of Contents I. Background .......................................................16 A. The 1934 Communications Act and Early Broadcast Ownership Regulation .................................................16 B. Deregulation Initiatives ......................................18 C. The Telecommunications Act of 1996 ...........................19 D. Regulatory Review Since 1996 .................................20
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