The Supreme Court ruled on very narrow grounds this morning in Federal Communications Commission v. Prometheus Radio Project that the Trump Federal Communications Commission decision on media ownership permissibly allowed broadcast consolidation at the expense of ownership diversity by women and people of color. The Court did not adopt the broadcast industry's arguments that would have bound the agency to an improper reading of the Communications Act or the FCC's own precedent.

Cheryl A. Leanza, co-counsel in the case and the United Church of Christ's media justice ministry's policy advisor said the following:

Although the ruling is disappointing, the Court's decision was very narrow, finding only that the FCC's decision was 'within the zone of reasonableness' because the FCC possessed a sparse record. But the sparse record is the FCC's own fault. Any analysis of this question must rely on the FCC's data and yet the FCC has long permitted broadcast licensees to avoid filing their ownership data with impunity and has never taken steps to remedy the deficiencies.

The good news is the Biden FCC, once it gains a working majority, can quickly get to work building a solid record to promote the public interest standard and media ownership diversity.

As part of its 60-year-old mission in pursuit of media justice, the UCC's media justice ministry, OC Inc., filed in the Supreme Court today. The case came to the Supreme Court when the Trump Administration and the broadcast industry appealed a UCC victory in federal court last year that blocked the FCC's effort to permit more local television mergers and other media combinations in local communities.  

In last year's victory, in Prometheus Radio Project v. FCC, the federal appellate court in Philadelphia, ruled that the Federal Communications Commission could not permit additional consolidation when it ignored facts in the record showing consolidation would harm ownership rates by women and people of color. The FCC has long decried low ownership diversity numbers but ignored facts in the record showing consolidation harms diversity by putting more television and radio stations into the hands of fewer and fewer owners.

As Cheryl A. Leanza, UCC OC Inc.'s policy advisor and lead litigator in the case in Philadelphia explained last year, "the court found the FCC treated its obligation as less-important than high school math homework and got caught turning in work that, in the court's words, 'would receive a failing grade in any introductory statistics class.'"

The state of ownership diversity is abysmal. Although the FCC's data is flawed and not completely reliable, it gives the best indication we currently have regarding current numbers. In full power television, racial minorities combined own 26 stations out of 1,376 licensed stations, Hispanics own 58 stations, and women own 73. In FM radio, racial minorities own 159 of 6,647 radio stations, Hispanics own 219, and women own 390. In all cases, the share owned by women and people of color is in the single digits, and in the case of most individual categories, such as Asian Americans, control is less than 1 percent. And the FCC data is incomplete, for example in FM radio 19 percent of stations did not report any data at all.

The UCC's history in court against the FCC goes back to the earliest days of the denomination when Rev. Everett C. Parker began his work as the original director of communications and founded OC Inc. He worked with local residents and church members to monitor and hold accountable television stations in the South by monitoring their content and filing challenges to TV station license renewals at the FCC. In those early days, the UCC established the right of audience members—as opposed to competing stations—to file challenges at the FCC when a broadcaster did not serve its local community.

The current case, which is a collaboration among the UCC and other public interest organizations including the Prometheus Radio Project, will determine the rules of the road for future FCC proceedings considering media ownership rules. The current debate has been on-going for 20 years, ever since Congress required the FCC to review its broadcast ownership rules on a regular basis. Each of those proceedings has come before the court in Philadelphia and the FCC has repeatedly failed to comply with its obligations, leading to four cases known as Prometheus I, II, III and IV.

"This case is about when a federal court should carefully scrutinize an agency and when it should grant the agency more deference," said Ms. Leanza, "in this case, the appellate court reviewed the FCC's work and found it failed the bare minimum for a federal agency. The lower court should clearly be upheld."

Oral argument is scheduled for January 19, 2021 via teleconference because of the COVID-19 pandemic. A decision will occur before the end of the Supreme Court's term next June.

Lead counsel on the brief are Ruthanne M. Deutsch and Hyland Hunt of DeutschHunt PLLC. Also on the brief are Cheryl A. Leanza, who advises OC Inc. directly and serves as counsel to OC Inc. and several of the other parties through Best Best & Krieger, LLP and Andrew Jay Schwartzman.

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

• Supreme Court grants certiorari in FCC v. Prometheus

• Behind the Scenes in Fighting for Media Justice in Court

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

• Celebrating Christmas with a Suit for Media Justice

FOR IMMEDIATE RELEASE (OCTOBER 15, 2020)

Today's 38th Annual Parker Lecture and Awards Ceremony highlighted the importance of communications policy in ensuring justice for all people. 

Karen Peltz Strauss

Karen Peltz Strauss was honored for four decades of work in support of access to media and communications for people with disabilities. In her acceptance speech, Strauss explained that it took years of work and many laws and policies for people with disabilities to gain access to television. Strauss emphasized the broad importance of disability access beyond the disability community, noting for example, that the features which aid people with disabilities also often ensure aging adults—who sometimes face declining vision, hearing and cognition—are not left behind. "This award acknowledges that these on-going struggles for disability justice are part and parcel of civil rights so important to Dr. Parker," she said.

Valarie Kaur, founder of the Revolutionary Love Project and author of the newly-released book See No Stranger, also spoke to the importance of the Internet in achieving social justice, describing how, even though today the Internet is used to spread hate, it also powered the public response in support of the Black Lives Matter movement this year. Praising the work of media justice advocates who have fought for net neutrality and universal access, she challenged the audience to continue the work.

Valarie Kaur

Kaur told the story of her own grandfather, who arrived as an immigrant in 1913 the same year Dr. Parker was born. Kaur compared the work of Dr. Parker to the work of media justice advocates today, "Everett Parker envisioned a world where people of color like my grandfather had the ability to organize, to tell our own stories, to write our own destinies. Everett Parker fought to ensure that all people could speak and be heard on the most important mass media of his time: broadcast television. Today, we are fighting to ensure that all people can speak and be heard on the most important media of our time: the Internet." Kaur laid out three policy objectives that will ensure the work for social justice will continue: changing the terms of service by social media companies, closing the digital divide, and reestablishing net neutrality. In closing, she exhorted the group assembled on Facebook Live to remember the generations of people who will come after us, "if we show up now and we do the brave thing now, they will inherit a world, and an internet, where at last we see no stranger."

Also participating in today's ceremony were the Rev. Lawrence Richardson and Rev. Hyo-Jung Kim of the UCC OC Inc.'s board of directors, Rachel Chapman of the national denomination's board of directors and Rev. Dr. Karen Georgia Thompson, one of the United Church of Christ's three elected officers leading the church. The event closed with an example of how the denomination's churches are thriving online with a remote, digital version of The Welcome Table by the Holmdel Community United Church of Christ's in-house band.

OC Inc. created the Parker Lecture in 1983 to recognize its founder’s pioneering work as an advocate for the public’s rights in broadcasting. This year's event took place entirely online because of the COVID-19 pandemic. The complete lecture is available on the UCC Media Justice Facebook page now, and excerpts and highlights will be available shortly. The event is also a fundraiser, and donations can be made at www.uccmediajustice.org.

The United Church of Christ is a mainline Protestant denomination comprised of nearly 900,000 members and 5,000 congregations nationwide. Headquartered in Cleveland, the UCC is a church of many firsts, including the first mainline denomination to ordain a woman, the first to ordain an openly gay man and the first predominantly white denomination to ordain an African American. The UCC and its members are tireless advocates for such social issues as immigration reform, racial equality, LGBT rights, marriage equality, environmental protection and economic justice.

The Supreme Court granted certiorari in Federal Communications Commission v. Prometheus Radio Project this morning, October 2, 2020.

Cheryl A. Leanza, counsel for Prometheus Radio Project, et al., including the United Church of Christ, OC Inc., issued the following statement:

We're confident that on the merits, the Supreme Court will conclude that the Third Circuit properly turned back the Federal Communications Commission's last quadrennial review decision. The FCC blundered on the most basic level--as the Third Circuit found--using a numerical analysis that would fail statistics 101. The FCC continues to hold media ownership diversity as a key priority and yet repeatedly takes action that undermines that goal. The Third Circuit's analysis was fully in accord with settled law.

Further, I want to extend our gratitude to Best Best & Krieger, LLP which leant pro bono and professional support in the litigation before the Third Circuit;  Andrew Jay Schwartzman and Angela Campbell, co-counsel; Professor Brian Wolfman of Georgetown University Law Center for his advice; and Ruthanne M. Deutsch and Hyland Hunt of DeutschHunt  PLLC, of who will be counsel of record before the Court.

More background on this case; Prometheus, et al.'s brief in opposition.

Today a group of almost 80 organizations wrote to Senators McConnell, Schumer, Wicker and Cantwell to request that the Senate include the COVID-19 Compassion and Martha Wright Prison Phone Justice provisions, H.R. 6800, §§130701-03, in the next COVID-19 package enacted into law. Those provisions would: 1) immediately reduce rates for voice calls, capping the cost of all calls at $0.04 per minute for prepaid calls and $0.05 per minute for collect calls, 2) end site commission payments between phone companies and correctional agencies; and 3) clearly establish the Federal Communications Commission’s (FCC) jurisdiction to limit predatory rates for local, intrastate communications as well as fees of all kinds.

Cheryl A. Leanza, OC Inc.'s policy advisor said, "In a time when our country is focused on the importance of affordable communication during a pandemic, the value of Black Lives, and the systemic flaws in our criminal justice system, it just makes sense for Congress to ensure that no one can be charged predatory rates to talk to their loved ones in prison, jail or detention. The Christian tradition teaches us that incarcerated people are worthy of dignity and respect in every way--whether it is the right to fair treatment inside, support reintegrating into society or the ability to speak to a child without sacrificing economic security. The time for Congress to act is now."

The letter and petitions with a total of 75,000 signatures were discussed at a press conference on August 11, 2020. A recording of the press conference is available here.

United Church of Christ, OC Inc., the National Consumer Law Center and the Multicultural Media, Telecom and Internet Council collaborated to submit a letter asking the Federal Communications Commission to take steps to assist low-income consumers. Specifically, the letter asks the FCC to:

• Extend COVID-related waivers through the end of the year;

• Restore Lifeline voice support to the $9.25/month subsidy;

• Freeze the Lifeline minimum service standards for broadband service until the FCC completes a pending study on the program or increases the existing Lifeline benefit amount.

The letter was signed by a diverse array of civil rights, anti-poverty, consumer, labor, faith and technology rights organizations, specifically:

Access Humboldt
Black Female Founders (#BFF)
Center for Rural Strategies
Common Sense Media
Communications Workers of America
Dialogue on Diversity, Inc.
Hispanic Technology & Telecommunications Partnership (HTTP)
Japanese American Citizens League
LGBT Technology Partnership
MediaJustice
Multicultural Media, Telecom and Internet Council (MMTC)
NAACP
National Blacks In Government, Inc.
National Coalition on Black Civic Participation
National Consumer Law Center, on behalf of its low-income clients
National Digital Inclusion Alliance
National Hispanic Media Coalition
National Organization of Black County Officials (NOBCO)
National Organization of Black Elected Legislative Women
New America's Open Technology Institute
Pennsylvania Utility Law Project, on behalf of our low income clients
Public Knowledge
Florida State Senator Audrey Gibson, Senate Democratic Leader
United Church of Christ, OC Inc.
United States Conference of Catholic Bishops

The helpful, but limited, action today by the Federal Communications Commission with respect to the predatory costs of communication between incarcerated people and their loved ones demonstrates the need for federal legislation to address this issue. As has been widely documented, including most recently by the FCC, the costs of calling incarcerated people are "egregiously high." People are sometimes paying almost $25 for a 15-minute call. Further, as the FCC explains, the vote today will address only 20 percent of relevant calls. Congressional action is needed so that the FCC can address the remaining 80 percent.

Nonetheless, the FCC today is appropriately voting to reassert its authority over almost all fees, because it is impossible to distinguish between fees related to in-state calls or calls between states. In addition, the FCC is initiating a proceeding to propose lower rates for the 20 percent of calls over which it has jurisdiction. Cheryl A. Leanza, the UCC's policy advisor stated, "The vote at the is a welcome redirection under the present FCC." Ms. Leanza explained, "Our conversations with the FCC about the Further Notice were productive and we look forward to actively participating in a wide-ranging proceeding. The additional questions will enable the FCC to move more quickly to make changes in the future. But it is unfortunate that this vote took so long given that the initial remand from federal court occurred three years ago."

In addition, Ms. Leanza noted, "because the FCC's analysis concluded GTL misrepresented its costs to the Commission and the record showed that Securus is imposing fees not permitted by the FCC's rules, I hope to see the FCC move quickly to take enforcement action against those companies."

This blog is also available on Medium.

Today we stand with our civil rights colleagues, our siblings of color and all people in a national day of mourning for the toll our government has inflicted on African-Americans. We urge you to take time today to mourn, to grieve and to rededicate yourself to anti-racism and to justice. We are rededicating ourselves to the work of communications rights and media justice as part of our work to a just society.

The events of this week and last combine the power of the media, technology and the power of prayer and the anguish of people who see and know that their voices are not being heard. As our colleagues in the United Church of Christ in Minnesota reminded us, Rev. Martin Luther King, Jr. said: “A riot is the language of the unheard.” Media justice and communications rights are about the language of the unheard. Our country started to learn these lessons when in the 1960s we faced riots in the streets of African-American communities, and the Presidential Kerner Commission concluded that racism and segregation in the media was part of the problem leading to that unrest.

Now, as then, media can show us the current manifestations of centuries of structural racism, pressing down our family members, friends and colleagues because of the color of their skin. Now, as then, media can be both the problem and the solution. Social media can reveal to us the horrible actions of police officers killing African Americans without provocation. It can allow us to organize and support each other, to find solutions and human connection even when a pandemic requires us to be physically apart. But traditional and social media can inflame hate and vitriol, turning ignorance, anger and fear into violence with the power of a lighted match on dry tinder.

Now, as then, media can be both the problem and the solution.

The power of prayer can hold our Black and Brown brothers and sisters in our hearts and see their pain, it can bring everyone the strength to work together for a better world. And yet faith can be used as an excuse to maim, harm, dehumanize others.

We have seen the President go after social media companies for following their own freely-adopted policies against violent and dehumanizing language. We have seen peaceful protesters attacked in front of a church for a photo-op. We join with the national setting of the United Church of Christ in condemning the modern lynching of Black people — carried out today with guns and choke holds by employees of the state.

In these moments it is easy to break apart, shut down and give up. And as Rev. William J. Barber III said last Sunday, “We cannot try to hurry up and put the screams and the tears and the hurt back in the bottle, just to get back to some normal that was abnormal in the first place. Hear the screams. Feel the tears. The very people rejected over and over again are the ones who have shown us the possibility of a more perfect nation. They are telling us these wounds are too much. This death is too much.” We must stop and hear our siblings crying and gasping for breath. We must take time to nurse our wounded souls, reach out in support. We must use our communications tools to see each other and hear each other and tell the stories of the people we have lost.

Today is a day to mourn. And tomorrow we must take up our tools, our stories, our words and get back to work to bring about the justice that we know, one day, we can make real.

The new HEROES Act released today, H.R. 6800, contains an incredible commitment to the communications rights of all people. The consumer protection and telecommunications provisions championed by Speaker Pelosi and Chairman Pallone recognize that the right of all people in the U.S. to connect with each other during the novel coronavirus pandemic is not only a matter of mental health and economic survival, it is a matter of life and death. 

If all people, including low-income people, can afford high quality broadband, their lives can continue, to some degree, through personal connections, education, jobs, obtaining access to emergency benefits while they shelter in place to stop the spread of the virus.  If frontline low-income workers can rely on their mobile phones, they can fill grocery orders, keep our hospitals clean and continue to act as our emergency responders in this time of need.  If families can reach their incarcerated loved ones at fair rates, they can monitor their health and welfare and ensure they receive access to essential care given the horrific spread of COVID-19 among people in jail, prison or detention.  The HERO Act's communications provisions are essential for meeting these emergency needs. 

These proposals, combined with provisions that end cut-offs of Internet services, codify the Federal Communications Commission Keep Americans Connected Pledge and establish limits on price gouging make this legislation an impressive package that will establish secure rights to affordable communications. Congress should move quickly to adopt them into law.

"Congress should move quickly to adopt the communications provisions of the HEROES Act into law," said Cheryl A. Leanza, UCC OC Inc.'s policy advisor, "being without the Internet right now is not just a digital divide, it is a digital chasm and life and death hangs in the balance. If adopted, these proposals would ensure that all people, no matter their income level or status will have the digital tools they need to participate safely in civic and economic life."

To read more about the #right2connect, see The Right to Connect: Life or Death Right Now.

The United Church of Christ's media justice ministry is very pleased to see long-time champion Representative Bobby Rush's new legislation addressing the predatory costs of communicating with incarcerated people, the Martha Wright Prison Phone Justice Act, H.R. 6389. Mr. Rush has been a leader on this issue since the 2000s. His new legislation immediately sets significantly improved rates for voice calls and clearly establishes federal jurisdiction to limit predatory rates for local, intra-state communications as well as fees of all kinds. It is future-proof, leaving no technological loopholes. It will enable the Federal Communications Commission to pick up where it left off and protect families, clergy, and loved ones from unjust and unreasonable rates. 

"Congratulations to Representative Rush. We urge the House Energy & Commerce Committee to quickly hold hearings and move to markup on this critical legislation," said Earl Williams, OC Inc.'s board chair. "This bill, along with Senator Duckworth's bi-partisan bill in the Senate, increases the hope of incarcerated people and their families that they will finally gain the same consumer protections as all people in the U.S."

Cheryl A. Leanza, OC Inc.'s policy advisor said, "In this time when so many families, clergy and friends are not permitted to visit their incarcerated loved ones during the COVID-19 epidemic, just and reasonable rates to communicate are more important than ever. Incarcerated people are facing crowded conditions and potentially insufficient health care. Without communication with the outside, it is impossible to monitor their safety."

UCC's media justice ministry is also currently encouraging everyone to join the MediaJustice campaign to ask the Federal Communications Commission to act immediately to secure relief for incarcerated people and their families.