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UCC Media Justice Update

Posts in category: "media diversity"

Court Victory for Equity in Communications!

The UCC's media justice ministry, OC Inc., won a great victory for racial and gender equity in communications because U.S. Court of Appeals for the Third Circuit overturned a decision of the Federal Communications Commission's decision permitting radically increased media consolidation for the fourth time.

The court found the FCC ignores impact of the consolidation on ownership by women and people of color.   The UCC's media justice ministry (OC Inc.) was part of a coalition challenging the rules.  The ruling also affirmed that the challengers had "standing" or the legal right to sue the FCC. The standing decision is of particular meaning to the United Church of Christ because ordinary citizens' right to sue the FCC was first established by the UCC in the 1960s.

Cheryl A. Leanza, who is the ministry's policy advisor and also lead counsel on the case said, "The Federal Communications Commission has not learned its lesson, even after almost 20 years of litigation. The law says the FCC must consider how its rules impact ownership by women and people of color. The FCC treated its obligation as less-important than high school math homework and it got caught turning in work that, according to the court, 'would receive a failing grade in any introductory statistics class.'"

Leanza continued, "Not only did the FCC ignore its obligation to diversity, but the Third Circuit opinion upholds the right of public interest organizations and ordinary individuals to sue the FCC. The UCC's legacy in this regard is critically important. And reasoned federal decision-making should not fear court review."  Members of the UCC assisted in this work by writing declarations showing the harm of consolidation.

As a result of this decision, fewer mergers in local TV and radio will occur and the FCC must return to the drawing board on its most recent proposals for even greater consolidation in local media.

For more background on this case, read our previous blog posts:

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Behind the Scenes in Fighting for Media Justice in Court

On June 11, 2019, the UCC's media justice ministry's policy advisor, Cheryl Leanza, argued in federal court against the Federal Communications Commission's new rules that permit significantly more consolidation in radio and television. Ms. Leanza, who is also counsel at the law firm Best, Best & Krieger, argued on behalf of UCC OC Inc. and the other public interest petitioners against the FCC in the U.S. Court of Appeals for the Third Circuit which sits in Philadelphia.  

The public interest organizations' core argument is that the FCC failed to consider whether its decision would harm ownership in broadcasting by women and people of color. The court appeared receptive.

In particular, the court was concerned that the FCC had de-linked the impact of consolidation from race and gender ownership diversity based on a flimsy historical analysis that, among other flaws, used racial minority ownership data but did not include data about women. The judges repeatedly pointed out that the FCC had no data on women.  One judge remarked, "Ten times zero is still zero," and "If we approve this, the headlines will read '3rd Circuit flunks statistics 101.'"

Another important point under debate was the effectiveness of two similarly named but slightly different definitions, called "eligible entities," which the FCC supposedly uses to increase ownership diversity. But the FCC conceded the first version of the definition won't help promote diversity--even after the same court had sent back the definition in the last two rounds of litigation. The second version of the term is part of a program to promote diverse radio ownership, but that program left no policy to promote diversity television ownership. And the data the FCC used to create that definition showed that at least 80 percent of the beneficiaries will not be women or people of color.

 
In addition to the main case about deregulation and race/gender ownership diversity, two other petitioners argued. The Minority and Media Telecommunications Council (MMTC) argued about flaws in the radio incubator program, and a group of television owners (Independent Television Group) asked the court to end the restriction on top-4 TV combinations. 
Listen to a recording of the oral argument. Cheryl’s argument starts around 18:40, and her rebuttal is around 1:14:20.
For more background on this case, read our previous blog posts:

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Sustaining our Leadership Role, UCC Members Speak out in Federal Court to Stop Media Mergers

Friday April 12, UCC OC Inc. continued its effort to block federal rules that are permitting vastly increased consolidation in television, radio and newspapers in local communities. Following up on its opening brief, filed last December, UCC OC Inc. and its allies filed their response to the Federal Communications Commission and industry briefs which defend consolidation. 

 

The question of legal "standing" is an important issue at this stage of the case. In order to bring a lawsuit, a person or an organization must have standing, that is, must demonstrate that they have been, or will be, harmed by the actions they are challenging. The UCC has a special connection to legal standing, as OC Inc.'s groundbreaking lawsuits in the 1960s under the leadership of Rev. Everett Parker, established the right of viewers and listeners to participate at the FCC and in court. Today, the doctrine of standing has been narrowed over the years by the courts, raising barriers to participation. Without standing, ordinary people and public interest organizations cannot legally protect the rights of viewers, listeners and independent content creators.

 

In the case of the current suit, UCC OC Inc. showed that the church has standing--through harm to its members and harm to its own work caused by the federal rule changes. To do this, UCC OC Inc. relied on declarations of a proud UCC member and its board chair. OC Inc. is very grateful to Tony Miller, of St. John's UCC in Chambersburg, PA, near Harrisburg. His declaration showed that if local TV news is degraded, he might have trouble protecting the earth by tracking the permit approval process of a local powerline proposal. He would also have less information about his home community of Shippensburg, PA, and would receive even less information about local efforts to protect LGBTQ rights or local primary elections. UCC OC Inc.'s board chair, Earl Williams, Jr., member of South Euclid UCC in Cleveland, explained that the church's work as a whole is harmed by media mergers and the lack of representation in media and news. Citing the General Synod resolutions on Anti-Racism in the Church, Williams explained that when members of the church do not receive sufficient information from local media, the UCC "must work harder to educate our members about the history of race in the United States, the impact of structural racism, and the present-day incarnations of that racism."

 

Ravi Kapur, winner of OC Inc.'s 2017 McGannon Award and member of Free Press (one of the other participants in the suit) described the impact of consolidation on his efforts, as an entrepreneur of South Asian descent, to serve underserved communities. He owns TV stations in Chicago, San Francisco, and Orlando and in Fargo, ND and owns Diya TV, the first 24-hour U.S. broadcast network serving the South Asian audience, broadcasting to more than 70 million people in a dozen markets nationwide. Kapur described the challenges of expanding his company and successfully serving communities in given widespread media consolidation. He highlighted the innovation creative station owners can bring, explaining his TV station in Fargo "produces more local programming than every other television station in North Dakota combined" and his new efforts to create a new stream of Native American programming there.

 

These UCC members and allies are helping to push back rules that will permit more consolidation in local media. If these rules had not been changed, mergers like the mega-merger proposed by Sinclair Broadcasting or the Nexstar takeover of Tribune would not be possible. Studies show that people still rely tremendously on local TV news--even people who read their news on the Internet rely on local TV journalism, especially at the current time when so many local newspapers are failing.

 

Your support of OC Inc.'s work makes this effort possible.

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Trump FCC Affirms Operating Blind for 15 Years on Equal Employment Opportunity

Today the Trump FCC refused to comply with the law. The Communications Act requires the FCC to collect broadcasting and cable equal employment opportunity (EEO) data. While the Bush FCC voted to collect that data in 2004 under then-Chairman Michael Powell, the FCC's leadership has ignored its statutory obligation for 15 years and reaffirmed that refusal at today's open meeting.

The Leadership Conference on Civil and Human Rights raised this concern with the FCC last summer when the FCC expended resources to eliminate an inconsequential form while ignoring its must more important legal obligation to collect EEO hiring data. 

 

Commissioners Starks and Rosenworcel raised this question with Chairman Pai this week. Mr. Pai refused to take action to collect the data even though the data collection form is approved and ready to go and one minor open issue has been ready for a decision for 15 years. We are particularly grateful to Commissioners Starks and Rosenworcel for raising these important civil rights issues which were ignored in the draft of the order that was originally released by the FCC.

 

UCC OC Inc. has a special connection to this question. In 1967, Dr. Everett Parker, OC Inc.'s founder, petitioned the Federal Communications Commission to adopt pro-active equal employment opportunity (EEO) rules. The following year, after a significant public outcry and the 1968 Kerner Commission report highlighting the negative impact of media coverage which ignored people of color, the Commission adopted those rules. They stood at the forefront of a series of FCC and EEOC efforts which revolutionized EEO obligations and practices throughout the media and telecommunications industry. In 1992, Congress institutionalized these rules into law.

 

While the FCC paused its data collection in 2002 and 2003 after two problematic court decisions, the Bush FCC affirmed in 2004 that collection of statistical data had no constitutional implications and were not barred by those court decisions. The Commission has only one final loose end to wrap up (on the appropriate confidentiality treatment of EEO data) in order to collect EEO statistics.

 

Without data about who is being hired, the FCC and the public have no idea whether the recruitment rules and efforts are working. Today many Silicon Valley companies voluntarily release employment statistics as a form of holding themselves accountable. There is no excuse that broadcasting, which uses public airwaves to operate, does not face the same accountability.

 

The FCC has been failing to collect and use the data about who owns television and radio stations and today has seemingly committed to completely ignoring who works in television and radio. Chairman Pai just created a new Office of Economics and Analytics, but is not collecting the data his agency is required to collect. 


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Celebrating Christmas with a Suit for Media Justice

Today the United Church of Christ's media justice ministry put the week just before Christmas to good use by continuing its long-standing campaign for equity in communications. UCC OC Inc. joined with allies in federal court contesting the Federal Communications Commission's failure to consider the negative impact the FCC's decisions have had on the total number of TV and radio stations owned by people of color and women. In 2017 the Trump FCC changed several rules that will permit significantly more consolidation, particularly in local television markets. Consolidation means fewer voices in local communities and fewer chances to hear from people underrepresented in television.

 

The case, titled Prometheus Radio Project v. FCC, is the fourth law suit since 2002 demonstrating that the FCC has not fulfilled its obligation under law to ensure ownership diversity in broadcasting. The FCC lost all three prior rounds.

 

"The FCC–again–completely failed to lift a finger for people of color and women hoping to own broadcast stations," said Cheryl A. Leanza, OC Inc.'s policy advisor and also lead counsel on the brief. "The federal court in Philadelphia has told the FCC three times that it must take a hard look at how consolidation might harm ownership by women and people of color. The FCC continues to whistle in the dark but take no action."

 

UCC OC Inc. is pleased to work alongside its valuable allies, Common Cause, Communication Workers of America, Free Press, Media Mobilizing Project and Prometheus Radio Project in this important campaign for racial and gender justice in communications.

 

Additional filings will be submitted to the court in February and March. Oral argument is anticipated in Philadelphia in the spring. Best Best & Krieger LLP offered pro bono support on the brief.

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