WASHINGTON—The U.S. Supreme Court has issued a 8-1 decision upholding the Federal Communications Commission’s authority to levy fines as part of its enforcement efforts.

The ruling involves massive penalties totaling nearly $200 million that the FCC imposed on Verizon Communications ($47 million), AT&T ($57 million), T-Mobile ($80 million) and other wireless carriers for failing to protect their customers’ location data.

Both Verizon and AT&T appealed the decision, arguing that the FCC’s fines violated their Seventh Amendment rights to a jury trial.

In a June 4 ruling written by Chief Justice John Roberts, the court found that “the FCC’s forfeiture proceedings fit comfortably within the Court’s Seventh Amendment precedents. The Seventh Amendment ‘preserve[s]’ the right to trial by jury in ‘Suits at common law,’ and applies in all proceedings in which ‘legal rights’ are to be ‘settle[d],’”

“It does not, however, ‘prescribe at what stage’ of a legal dispute “a trial by jury must, if demanded, be had," Roberts wrote. ”The Amendment requires only that, before legal rights and obligations are conclusively ‘ascertained and determined’...a party has the chance to insist that a jury make the ‘ultimate determination of issues of fact’...Consistent with these principles, this Court has upheld nonjury adjudications making initial findings of fact that are subject to de novo review in a subsequent jury trial…Given the similar features of the Commission’s enforcement scheme, the Commission may issue forfeiture orders without the involvement of a jury.”

The court’s decision earlier this year to address the Verizon and AT&T appeals had raised concerns about the FCC’s ongoing ability to impose fines.

In the last two decades, the Supreme Court has steadily chipped away at the legal authority of government regulators, most notably in its 2024 ruling rejecting the doctrine of “Chevron deference,” under which courts were to defer to a regulatory agency’s expertise in interpreting federal laws where Congress’ intent was unclear, and in a second 2024 ruling in Securities & Exchange Commission v. Jarkesy. In the SEC case, the Court ruled 6-3 that the securities regulator must bring fraud cases seeking civil penalties to federal court instead of relying on its internal tribunals.

Based on the SEC case, both Verizon and AT&T appealed the fines, arguing the FCC was denying the defendants their right to a jury trial by issuing them.

The 2nd U.S. Circuit Court of Appeals in New York denied that argument in the Verizon case and upheld the fine but the 5th U.S. Circuit Court of Appeals in New Orleans overturned the fines against AT&T.

Following that, Verizon appealed the 2nd Circuit ruling to the Supreme Court and the FCC appealed the AT&T case. The June 4 decision resolved the conflict between the Circuit Court judgments.

In its June 4, ruling the Supreme Court ordered that “the judgment of the United States Court of Appeals for the Fifth Circuit in No. 25–406 is reversed, and the case is remanded for further proceedings consistent with this opin-ion. The judgment of the United States Court of Appeals for the Second Circuit in No. 25–567 is affirmed.”

Justice Clarence Thomas issued a dissenting opinion arguing that the Court was wrong in ruling that the FCC fines were “nonbinding” and therefore did not violate the companies’ right to a jury trial.

“When the Federal Government seeks to deprive a person of property, it must go through an Article III court,” Thomas wrote, citing the SEC v. Jarkesy decision. “That means the regular course of trial proceedings with their usual protections, not the use of ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial review. Thus, as this Court held in Jarkesy and reaffirms today, agencies can collect penalties only after adjudication in court through a trial de novo.”

In reaction to the opinion, Venable LLP partner and former SEC general counsel Megan Barbero who represented the government in SEC v. Jarkesy said that "the FCC decision reflects an effort by the Court to cabin—at least to some extent—the reach of its decision in SEC v. Jarkesy. The Court interpreted the FCC’s forfeiture orders as non-binding, non-final preliminary determinations of “suspected violations,” stressing that the orders are unenforceable unless the Department of Justice files a suit in district court to recover the penalty. The Court emphasized that, because the telecommunications carriers are entitled to a de novo jury trial on the underlying violation in that enforcement action, the Seventh Amendment was satisfied.

Barbero also explained that "the Supreme Court’s reasoning was based on the FCC statute at issue but likely extends to other agency schemes that similarly result in non-final and non-binding findings that the government must prove to a jury trial before collecting any fine. That may limit the reach of Jarkesy to a point. But the result of the Court’s decision will also limit federal agencies’ practical ability to collect administrative penalties through their administrative processes. Regulated parties under analogous statutory schemes may now feel they have more license to decline to pay administrative penalties assessed by an agency and choose to instead wait for the government to marshal the resources to bring a district court proceeding, which is no small lift for the government."

The full opinion is available here.

WASHINGTON—As the Supreme Court considers a case that could have major implications for the Federal Communications Commission’s ability to impose fines, two former Federal Communications Commission (FCC) Chairs and six non-profit consumer advocacy groups have submitted a friend-of-the-court brief defending the agency.

The filing was made in consolidated cases before the U.S. Supreme Court regarding the FCC’s ability to hold wireless carriers accountable for data breaches and other violations of consumer privacy rights.

The cases center around financial penalties issued to four major wireless carriers in 2020 for apparently selling access to their customers’ location information without taking reasonable measures to protect against unauthorized access to that information.

The FCC’s investigation uncovered that sensitive location information for tens of millions of the carriers’ customers was made vulnerable. After an investigative process, during which the carriers were given notice and the opportunity to respond, the FCC assessed massive penalties totaling nearly $200 million.

Those fines were imposed on Verizon ($47 million), AT&T ($57 million), T-Mobile ($80 million) and other wireless carriers for failing to protect their customers’ location data.

In response, both Verizon and AT&T filed federal cases that have been consolidated into a case that the Supreme Court agreed to consider in January of 2026.

These appeals are important in the context of a longstanding effort by the Supreme Court to chip away at the authority of regulatory agencies. In a 2024 ruling SCOTUS rejected the doctrine of “Chevron deference,” under which courts were to defer to a regulatory agency’s expertise in interpreting federal laws where Congress’ intent was unclear.

In a second 2024 ruling in Securities & Exchange Commission v. Jarkesy, the Court ruled 6-3 that the securities regulator must bring fraud cases seeking civil penalties to federal court instead of relying on its internal tribunals.

Based on the SEC case, both Verizon and AT&T appealed the fines, arguing the FCC was denying the defendants their right to a jury trial by issuing these fines.

The 2nd U.S. Circuit Court of Appeals in New York denied that argument in the Verizon case and upheld the fine but the 5th U.S. Circuit Court of Appeals in New Orleans overturned the fines against AT&T.

Following that, Verizon appealed the 2nd Circuit ruling to SCOTUS and the FCC appealed the AT&T case. The High Court’s decision to hear the cases together will resolve the conflict between the Circuit Court judgments.

The brief was submitted in FCC v. Verizon and AT&T v. FCC by Democracy Forward on behalf of two former FCC Chairs, Reed Hundt and Tom Wheeler, as well as the Benton Institute for Broadband & Society, Consumer Reports, the Electronic Information Privacy Center (EPIC), the National Consumer Law Center, the National Consumers League, and Public Knowledge. It stresses both the importance of SCOTUS upholding the fines and the FCC’s ability to levy them.

The Brief noted that the FCC ruling did not deny the wireless carriers a jury trial. Instead of waiting for the FCC to enforce the penalties in a de novo district court trial where a jury would have been available, both Verizon and AT&T sought review in courts of appeals.

“Given the availability of the very thing the carriers complain is missing here—a jury trial—the carriers’ challenge has lost its signal,” the brief notes. “Most notably, the carriers do not deny their wrongdoing here.”

“Consumers do not sign away their privacy when they sign up for wireless service, which is a crucial lifeline in modern society,” added Tom Wheeler, former FCC Chair in a statement announcing the filing of the Brief. “The FCC acted appropriately when they issued these penalties. I am proud to join this brief, and urge the Court to respect the privacy protections Congress put in place.”

“As our personal data has become more insecure than ever, it is critical that we have strong regulators who are equipped to protect us from privacy violations,” added NCL Vice President of Public Policy, Telecommunications, and Fraud John Breyault in a statement. “Congress made it clear that the FCC’s job is to make sure that consumers’ sensitive telecommunications data is protected. The FCC, across bipartisan administrations, faithfully applied these mandates. The Court should ensure that the Commission continues to have every lever at its disposal to ensure America’s telecom carriers follow the law and to hold them accountable when they fail.”

“The carriers’ constitutional argument, if accepted, would strip the FCC of its core enforcement authority and leave consumers without a meaningful remedy when carriers misuse their most sensitive data or otherwise break the law,” added John Bergmayer, Legal Director of Public Knowledge in a statement. “But as our brief explains, the carriers had the opportunity to contest the FCC’s findings before a jury and walked away from it, choosing instead to attack the foundations of FCC enforcement itself. Their challenge should fail.”

The Brief notes that the Telecommunications Act of 1996 requires telecommunications carriers to protect the confidentiality of certain customer data related to the provision of telecommunications service, including location information. The FCC’s rules make clear that carriers must take reasonable measures to discover and protect against attempts to gain unauthorized access to this data. The rules also require that carriers or those acting on their behalf generally must obtain consent from a customer before using, disclosing, or allowing access to this data, and further make clear that carriers are liable for the actions of those acting on their behalf.

“A functional democracy relies on holding corporations accountable when they harm or abuse the people they are supposed to serve: their customers,” said Skye Perryman, President and CEO of Democracy Forward. “These telecom giants are trying to avoid penalties, jeopardizing the ability of the FCC to protect consumers’ private data and hold wrongdoers accountable.”

The friend-of-the-court brief can be found here.

WASHINGTON—The U.S. Supreme Court has agreed to consider fines imposed on Verizon Communications and AT&T in two cases that could have a wide-ranging impact on the Federal Communications Commission’s ability to impose fines without a jury trial.

The cases involve massive penalties totaling nearly $200 million that the FCC imposed on Verizon ($47 million), AT&T ($57 million), T-Mobile ($80 million) and other wireless carriers for failing to protect their customers’ location data.

Over the past 15 years, the Supreme Court has been steadily chipping away at the authority of regulatory agencies, most notably in its 2024 ruling rejecting the doctrine of “Chevron deference,” under which courts were to defer to a regulatory agency’s expertise in interpreting federal laws where Congress’ intent was unclear, and in a second 2024 ruling in Securities & Exchange Commission v. Jarkesy. In the SEC case, the Court ruled 6-3 that the securities regulator must bring fraud cases seeking civil penalties to federal court instead of relying on its internal tribunals.

Based on the SEC case, both Verizon and AT&T appealed the fines, arguing the FCC was denying the defendants their right to a jury trial by issuing them.

The 2nd U.S. Circuit Court of Appeals in New York denied that argument in the Verizon case and upheld the fine but the 5th U.S. Circuit Court of Appeals in New Orleans overturned the fines against AT&T.

Following that, Verizon appealed the 2nd Circuit ruling to SCOTUS and the FCC appealed the AT&T case. The High Court’s decision to hear the cases together will resolve the conflict between the Circuit Court judgments.

“And the decision below has serious practical consequences, since it deprives the Commission of one of its most important regulatory remedies and severely impairs the agency’s ability to enforce federal communications law,” Solicitor General D. John Sauer wrote in the government’s petition, according to The Hill.

A decades-old U.S. Supreme Court decision that established the federal government’s “Fairness Doctrine” is outdated and should be overturned, a George Washington University Law School professor wrote today.

In a column in “The Regulatory Review,” a publication from the University of Pennsylvania Law School, Richard J. Pierce Jr., the Lyle T. Alverson Professor of Law at The George Washington University Law School, said recent events surrounding the FCC’s approach towards controversial comments made by late-night talk show host Jimmy Kimmel illustrate how the doctrine is has the “potential for abuse.”

In the court’s 1969 decision in the “Red Lion vs. The Federal Communications Commission,” the high court found that because broadcasters are licensed to operate by the FCC, they have a unique role and that the doctrine “conferred on the federal government unprecedented power to regulate speech and the press.” The scarcity of spectrum allowed the government to limit the number of licenses granted, which prompted the need for such a doctrine, SCOTUS concluded.

Even though the Fairness Doctrine, which requires broadcasters to provide both sides of political issues, was rescinded by the Reagan administration back in the 1980s, it is still on the books.

“The FCC still has the statutory power to grant or deny broadcast licenses and to grant or deny mergers and acquisitions proposed by broadcasters, limited only by the virtually meaningless and completely subjective statutory standards of public interest and public convenience, interest or necessity,” Pierce wrote.

Pierce added that market conditions have significantly changed since the decades-old ruling and that recent incidents illustrated the need for clarity.

Pierce cited the incentives for media companies that need regulatory approval from the FCC can conflict with the agency’s authority to regulate broadcasters’ requirements to operate “in the public interest.”

“As long as ‘Red Lion’ remains the law, every President will have near-complete power to regulate the content of all broadcasters,” Pierce wrote. “The Court needs to correct that situation by overruling Red Lion at its earliest opportunity. [FCC chair Brendan] Carr and President Trump are likely to provide that opportunity in the near future.”

WASHINGTON—The United States Supreme Court’s decision to reject a challenge to the constitutionality of the Universal Service Fund was immediately applauded by Federal Communications Commission Chair Brendan Carr and commissioner Anna Gomez.

The FCC collects about $8 billion in fees for the USF, which has played a key role in financing telecommunications services to rural and local communities that might not be served by purely profit-driven deployments.

A conservative group called Consumer Research had challenged the constitutionality of the fund and the 5th U.S. Circuit Court of Appeals agreed. That prompted fears that the decision might be upheld by the Supreme Court, which has been steadily rolling back regulatory authority. Last year the Supreme Court struck down the doctrine of Chevron deference in a ruling that severely limits the regulatory authority of federal agencies like the FCC.

In a 6-3 ruling, the Supreme Court disagreed with the 5th Circuit and found that Congress did properly allow the FCC the authority to collect USF fees, which provide about $8 billion a year for telecommunications and Internet services in rural and low-income communities.

In response to the Court’s ruling Consumers’ Research v. FCC, Carr said in a statemen t: “For years, the FCC’s universal service program has played a key role in expanding connectivity and Internet service to Americans in communities across the country. In my time on the Commission, I have had the opportunity to see firsthand the benefits that have come with the connections powered by the agency’s USF program. I am glad to see the Court’s decision today and welcome it as an opportunity to turn the FCC’s focus towards the types of reforms necessary to ensure that all Americans have a fair shot at next-generation connectivity.”

Gomez issued a separate statement saying, “for decades, the Universal Service Fund has been a critical tool for expanding access to and ensuring consumers can afford to be connected. While we must remain clear-eyed about the need to reform the program to secure its long-term sustainability, completely dismantling it—cutting off millions from essential broadband access and jeopardizing the economic stability of rural providers—was never the right approach. I’m glad the Supreme Court has upheld the constitutionality of the USF, providing Congress with the clarity and confidence it needs to continue to pursue a bipartisan, bicameral solution to protect this vital program.”

“Only Congress has the authority to reform the Universal Service Fund in a durable, forward-looking way that can withstand future legal challenges,” she concluded. “I look forward to continued progress from the bipartisan, bicameral working group and remain committed to ensuring that broadband affordability remains a central pillar of any proposal moving forward.”

The full decision is available here.

WASHINGTON—The U.S. Supreme Court has agreed to hear an appeal in a case that alleges the Federal Communications Commission does not have the authority to decide how Universal Service Fund monies are used.

The 5th U.S. Circuit Court of Appeals ruled that the FCC's funding arrangement to subsidize and promote access to phone and broadband services for libraries, rural areas, tribal areas, lower-income Americans and other constituencies was unconstitutional.

If upheld, the ruling would upset longstanding funding procedures used to make telecommunications services available in less affluent rural areas.

Congress gave the FCC the authority to set up the Universal Service Fund in the Telecommunications Act of 1996. Consumers pay about $8 billion a year to fund the USF.

The lawsuit filed by the conservative group Consumer Research argued that Congress did not have the authority to delegate how the funds are spent to a government agency like the FCC, citing a nondelegation doctrine that was used by the Supreme Court to overturn New Deal legislation in 1935.

The 5th Circuit in New Orleans agreed. “American telecommunications consumers are subject to a multibillion-dollar tax nobody voted for,” the 5th Circuit ruled, according to Law.com. “The size of that tax is de facto determined by a trade group staffed by industry insiders with no semblance of accountability to the public.”

However, other circuits have rejected the line of reasoning. “The Sixth and Eleventh circuits have rejected nondelegation challenges to the USF,” Law.com has reported.

The FCC and others appealed the decision to the Supreme Court. Arguments in the case are not likely to be heard until 2025.

FCC Chair Jessica Rosenworcel applauded the move and said she thinks support for the fund will be validated.

“I am pleased that the Supreme Court will review the 5th Circuit’s misguided decision,” she said. “For decades, there has been broad, bipartisan support for the Universal Service Fund and the FCC programs that help communications reach the most rural and least-connected households in the United States, as well as hospitals, schools and libraries nationwide. I am hopeful that the Supreme Court will overturn the decision that put this vital system at risk.”

WASHINGTON—In a big victory for broadcasters and the Republican FCC under Ajit Pai, the Supreme Court has reversed the Third Circuit's decision throwing out the FCC's broadcast deregulation under former FCC Chairman Ajit Pai. Current acting chairwoman Jessica Rosenworcel had voted against the deregulatory move.

In 2017, the FCC had unanimously voted along party lines to eliminate two broadcast ownership rules and adjust a third. Prometheus Radio Project, which has long challenged FCC dereg, challenged again and the Third Circuit vacated the FCC decision, saying it had failed to justify the conclusion that the rule changes would not adversely affect minority or female ownership, so the decision was illegal because it was arbitrary and capricious.

The Supreme court held that the decision was not arbitrary and capricious and the FCC's conclusion that the rules were no longer in the public interest was reasonable.

The opinion was delivered by Justice Brett Kavanaugh, formerly of the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over FCC decisions.

"In assessing the effects of the rule changes on minority and female ownership, the FCC did not have perfect empirical or statistical data," said the court. "But that is not unusual in day-to-day agency decisionmaking within the Executive Branch. The APA imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies. And nothing in the Telecommunications Act requires the FCC to conduct such studies before exercising its discretion ...

"In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism and viewpoint diversity, we cannot say that the agency’s decision to repeal or modify the ownership rules fell outside the zone of reasonableness," the court ruled in a brief—12-page—decision.

It was a fast turnaround for the decision. The case was argued Jan. 19.

"[T]he FCC determined that none of its policy objectives for ownership rules—viewpoint diversity, competition and localism—justified retaining its rules, the FCC was free to modify or repeal them without considering ownership diversity. Indeed, the FCC has long been clear that 'it would be inappropriate to retain multiple ownership regulations for the sole purpose of promoting minority ownership.' The Third Circuit had no authority to require the FCC to consider minority and female ownership. So in future reviews, the FCC is under no obligation to do so," said Justice Thomas in a concurring opinion.

In November 2017, a politically divided FCC voted to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC did not call it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.

The FCC is under a congressional directive in the 1996 Telecommunications Act to periodically review its regulations—first biennially, then changed to quadrennially—and repeal or modify any it concludes are not in the public interest. 

"We lost, and that is unfortunate," said attorney Andrew J. Schwartzman.  "However, the Court rejected the NAB's efforts to obtain a ruling that would have essentially removed the FCC's power to impose limits on broadcast ownership. This will enable our clients to enforce and improve ownership limits in the future."

UPDATED:

NAB President and CEO Gordon Smith gave the following statement on the decision:

“NAB commends today’s unanimous decision by the Supreme Court that the FCC’s recent and long-overdue modernization of its broadcast ownership regulations was lawful and appropriate. It is critical that the Commission continue to examine its media ownership rules to ensure that America’s broadcasters are able to compete and meet the needs of local communities across the nation in today’s media landscape. We look forward to working with the Commission on this effort given the essential role radio and television broadcasters play for all Americans."

WASHINGTON—The highest court in the land could be coming to television, as a new bill was introduced in the Senate on March 18 that would allow for TV coverage of Supreme Court proceedings.

The bill, the Cameras in the Courtroom Act, was introduced by Senate Majority Whip Dick Durbin (D-Ill.) and Sen. Chuck Grassley (R-Iowa); it is also co-sponsored by Sens. Richard Blumenthal (D-Conn.) and Amy Klobuchar (D-Minn.). The legislation would require the Supreme Court to permit TV coverage of all open sessions, unless it is decided by a majority of the Justices that doing so would constitute a violation of due process rights. This bill only applies to sessions where the public are already invited to observe in person.

The bill aims to produce greater accountability, transparency and understanding of the judicial system. In 2016, a Government Accountability Office report highlighted the value of broadcasting video and audio coverage of the Supreme Court.

“It’s time to put cameras in the Supreme Court so Americans can finally see deliberations and rulings on cases which will affect them for generations to come,” said Sen. Durbin. “This bipartisan bill shines a light into the Judicial Branch of government so more than just a few hundred lucky Americans can watch proceedings in the Court’s historic halls.”

There has long been a debate to add cameras to the Supreme Court, as nearly all other courts in the country allow. During the pandemic, the Supreme Court has made live audio streaming available of its proceedings, though it is not clear if that will continue when in-person proceedings begin again. 

WASHINGTON—The FCC and National Association of Broadcasters made their virtual arguments to the Supreme Court Tuesday, Jan. 19, on why a lower court (the Third Circuit Court of Appeals) was wrong to invalidate the FCC's 2017 broadcast ownership deregulation decision, a defense that came in the waning hours of the FCC's Republican majority, which had approved the rule changes over the objections of FCC Democrats.

On the other side, the attorney for consolidation opponents said the FCC had failed to do its statutory due diligence and earned the legal smackdown yet again.

While it is always tough to predict from oral argument—Justices often play devil's advocate to probe arguments—government attorneys and broadcasters were likely not unhappy with the tenor of the questioning.

Preston Padden, former top exec with Disney and Fox, tweeted immediately following the arguments: "After listening to FCC v Prometheus SCOTUS oral argument today on the Broadcast Ownership rules - my prediction is that the FCC wins at least 7-2 and that the long industry nightmare of the Third Circuit ends!"

Likely the two in that 7-2 prediction are Justice Sonia Sotomayor and Elena Kagan, who seemed most sympathetic to the backers of the Third Circuit smackdown of the Republican FCC's deregulation.

Justices Neil Gorsuch and Brett Kavanaugh definitely appeared to be leaning toward the government's argument that the FCC had looked at what info it had, made its best predictive judgment, to which court's generally give deference, and interpreting a broad public interest standard, sufficiently broad that it would be hard to say that interpretation was arbitrary and capricious.

Malcolm Stewart, an attorney in the Solicitor General's Office arguing for the FCC, said that the commission had exercised reasonable judgment in concluding the elimination of the newspaper/broadcast cross-ownership rule and other deregulatory changes were in the public interest, which he said was the primary purpose of Congress' mandate that it review its regs every four years; that there was incomplete data on whether eliminating that rule would hurt minority and women ownership; that the FCC had concluded based on the information it had that there would likely not be a negative effect on minority and women ownership; and that absent that, the likely beneficial effect outweighed any speculative harms.

He also argued that competition and diversity of viewpoints were the key goals of structural ownership rules, not their impact on minority or women ownership, and that the goal of Congress in mandating periodic ownership rule reviews was that they not remain on the books due to inertia.

Helgi Walker, representing the National Association of Broadcasters, went further in her arguments than the government, asking that the court resolve the issue of what the statute mandating the quadrennial review actually said, rather than just whether the FCC had made a reasonable judgment based on its reading of the statute.

Broadcasters want the Supreme Court to confirm their interpretation that not only does the FCC not have to include impact on minorities and women in its quadrennial review, but that to do so is beyond the bounds of the statutory mandate.

NAB is not saying minority and women ownership isn't important, or part of the FCC's public interest determination, but that in this instance, as the statute was written, it is not what the FCC is to be looking at,  much less the key factor the court said it was in vacating the newspaper-broadcast cross-ownership rule dereg.

She said that after 17 years and four different attempts to deregulate broadcasting, all smacked down by the same Third Circuit Court of Appeals, the case had finally reached the highest court in the land and it was time for some regulatory—or in this case deregulatory—certainty about the statutory mandate in the quadrennial review. If the court did not provide that guidance, she said, she predicted years more litigation.

In defense of the Third Circuit, Ruthanne Mary Deutsch, representing Prometheus Radio Project, said that the FCC had failed its basic legal requirement to state that it was not considering female and minority ownership or the potential harms the deregulation would cause, and explain why that was the case.

She argued the FCC couldn't explain because it had not really weighed the issue, and for those and more reasons its decision was arbitrary and capricious and the Third Circuit should repeal of the rules be upheld. She said that would allow the FCC's delayed 2018 quadrennial review—on hold pending the resolution of the Supreme Court case—to proceed.

The Justices focused on to what degree the FCC was required to take minority and women into account, if at all, whether not doing so was a change in policy and whether, if so, it needed to explain that change.

Justice Clarence Thomas, who asked numerous questions, focused on the presence of online competition and the FCC argument that that marketplace change was a reason why structural limits on broadcast ownership were less defensible than when the newspaper-broadcast cross-ownership rule went into effect in 1975.

The FCC and NAB both had challenged the Third Circuit repeal, with the cases consolidated in the argument heard Tuesday.

In November 2017, a politically divided FCC voted to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC did not call it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.

But during oral argument, the only rule change that was discussed was the newspaper-broadcast cross-ownership rule elimination.

The questions the Supremes were asked to resolve, as presented in a document on the Supreme Court web site: "Whether the court of appeals erred in vacating as arbitrary and capricious the FCC orders under review, which, among other things, relaxed the agency's cross-ownership restrictions to accommodate changed market conditions" and "whether the Commission may repeal or modify media ownership rules that it determines are no longer 'necessary in the public interest as the result of competition' without statistical evidence about the prospective effect of its rule changes on minority and female ownership."

The government (the FCC and Justice) and NAB say yes to both, but had the argument come after the inauguration of Democratic President-Elect Joe Biden, the government would likely not have pressed its appeal given Democrats' historic opposition to broadcast deregulation, though even Democratic FCC chairs have conceded the newspaper-broadcast cross-ownership rule is anachronistic.

Tuesday's virtual oral argument was the first time the Supreme Court has heard a challenge to one of a series of Third Circuit smackdowns of FCC Republican administration broadcast deregulation decisions dating back to 2003, when the FCC under then chairman Michael Powell attempted to relax some ownership restrictions citing changes to the market. 

The FCC is under a congressional directive in the 1996 Telecommunications Act to periodically review its regulations—first biennially, then changed to quadrennially—and repeal or modify any it concludes are not in the public interest. 

But, as the Supreme Court website frames it, the Third Circuit "in a series of three appeals spanning the past 17 years, the same divided panel of the United States Court of Appeals for the Third Circuit has repeatedly vacated the FCC's attempts to reform its ownership rules. The effect of those decisions has been to maintain in effect decades old FCC ownership restrictions that the agency believes to be outmoded."

The most recent Third Circuit decision was based only on "the ground that the agency had not adequately analyzed the potential effect of the regulatory changes on female and minority ownership of broadcast stations."

It is unclear when the Supreme Court will render a decision—it is under no timetable and it could be months—and whether if it upholds the Republican FCC, but without going to the statutory language clarification NAB seeks, a new, Democratic FCC, would restore the regs.

WASHINGTON—As the Supreme Court prepares to hear the case between the FCC and the Third Circuit U.S. Court of Appeals over the commission’s media ownership modernization rules, the NAB is once again giving its support to the FCC’s effort.

NAB has filed a reply brief to the Supreme Court where it argues that the FCC’s updated rules for media ownership were precisely in line with what it was directed to do by Congress, and that the Third Circuit’s decision to deny the new rules based on potential diversity issues is not consistent with Congress’ order.

In 2017, the FCC crafted a set of new media ownership rules with the goal of updating what it believed were outdated ones. The new rules would eliminate newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly; eliminate attribution of joint sales agreements as ownership; and create an incubator program.

The Third Circuit Court rejected and sent back the FCC’s proposed regulations, primarily citing that the FCC did not take into account the impact that these rules would have on minority and female ownership.

After previously providing a brief to SCOTUS on the case, NAB’s latest brief attempts to make the case that Sec. 202(h), the Congressional order to the FCC, directed the commission to review whether its rules “were ‘necessary in the public interest as the result of competition.’”

NAB says that the Third Circuit never challenged the conclusion that the previously decades-old rules no longer made sense competitively and should be repealed, but rather they made a judgement call to deny the order based on the potential impact on diversity.

“The Third Circuit imposed that obligation on its own say-so …” NAB’s brief reads. “[T]he commission historically has not addressed minority and female ownership through structural ownership limits but targeted measures in separate proceedings.”

“Even assuming that minority and female ownership is a permissible factor in Section 202(h) reviews, that atextual policy goal, standing alone, cannot justify retaining rules that are otherwise no longer necessary in light of competition,” the NAB’s brief continues.

The Supreme Court will hear the case between the FCC and the Third Circuit Court on Jan. 19. NAB’s full reply brief can be read online. 

WASHINGTON—Common Cause is backing the U.S. Third Circuit Court in its upcoming court case against the FCC regarding media ownership rules set to be heard by the Supreme Court, arguing that the FCC’s efforts will do more to harm media ownership diversity than help.

Common Cause joined Prometheus Radio Project, Movement Alliance Project, Free Press, Office of Communication Inc. of the United Church of Christ and National Association Broadcast Employees and Technicians-Communications Workers in a brief filed to the Supreme Court. 

The brief argues that SCOTUS should affirm the Third Circuit’s decision that the FCC was “arbitrary and capricious in deregulating media ownership rules without considering what effect it would have one broadcast ownership by women and people of color.”

The FCC has fought this ruling, claiming that its proposal not only updates media ownership rules that it calls out-of-date, but also creates an incubator program to promote diversity in media. After a number of appeal attempts, the commission ultimately brought the case before SCOTUS. 

PLUS: Pai Urges Media Ownership Reforms

The brief submitted by Common Cause and the other organizations believe, however, that the Third Circuit correctly identified flawed data in the FCC’s proposal that does adequately consider the impact of its rules change on diverse media ownership.

Former FCC Commissioner and Common Cause Special Adviser Michael Copps made the following statement regarding the case:

“The Third Circuit rejected bad FCC media ownership rule changes four times because each time the agency ignored the Court’s demand for evidence and a reasoned explanation of how rule changes would impact broadcast ownership diversity. Rather than do its job, the FCC is now seeking a bail out from the Supreme Court to push for greater media consolidation at the expense of ownership diversity. Based on existing data, we know the number of broadcast stations owned by women and people of color is abysmally low as media conglomerates continue to consolidate. Women and people of color have struggled to acquire broadcast stations in an industry that’s been consolidated for far too long.

“Our democracy suffers when just a few entities own the majority of our media and there is no diversity in ownership. The FCC’s media ownership rules are intended to prevent that from happening. We urge the Supreme Court to uphold the Third Circuit’s decision and require the FCC to once and for all fulfill its statutory mandate to promote race and gender diversity in media ownership.”

The full brief is available online. 

WASHINGTON—Turns out Jan. 19 will be an inauguration day of sorts—inaugurating the Supreme Court's first consideration of an appeal of the FCC's media ownership rule deregulation.

It will be the fourth oral argument of the January session, with one hour of argument scheduled, though that could spill over depending on the how the arguments and Justices' questioning goes.

The FCC and the National Association of Broadcasters both challenged the U.S. Court of Appeals for the Third Circuit.

In September 2019, a three-judge panel of the Third Circuit threw out, or at least threw back to the FCC, Chairman Ajit Pai's effort to deregulate broadcast ownership and address a lack of diversity. The court said the agency "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities," something the court had said in a previous media ownership ruling that the FCC had to do next time around. 

The court vacated the FCC's elimination of the newspaper-broadcast and the radio-TV cross-ownership rules; its decision to allow dual station ownership in markets with fewer than eight independent voices after that duopoly created an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC was not calling it a waiver); and its elimination of attribution of joint sales agreements as ownership, as well as its creation of a diversity incubator program. 

In April 2020, broadcasters and newspaper publishers petitioned the Supreme Court to review the Third Circuit decision.

Echoing the FCC's petition for review also filed in April, media petitioners said that outdated ownership rules remain in force because a divided panel of the court has prevented the FCC from implementing "necessary adjustments to its ownership rules" that the FCC concluded would serve the public interest.

The FCC said that it has been trying to grant the ownership dereg for 17 years, thwarted by a series of decisions by a divided panel of the Third Circuit. It said the most recent decision to vacate "a host of significant rule changes" was based "solely on the ground that the agency had not adequately analyzed the rules’ likely effect on female and minority ownership of broadcast stations." 

The FCC argues that for those 17 years the court has blocked it from exercising its mandate by Congress to repeal or modify any ownership rule it determines is no longer in the public interest. 

ATLANTA—Gray Television has thrown its support behind the FCC in its case for reinstating its proposed media ownership rule updates, filing an amicus brief with the Supreme Court for the commission’s case where it seeks to overturn the ruling of the U.S. Court of Appeals for the Third Circuit.

In 2017, the FCC voted on deregulation efforts that would eliminate newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices on a case-by-case basis; eliminate attribution of joint sales agreement as ownership; and create a diversity incubator program, as well as other diversity mechanism.

This was ultimately denied by the Third Circuit and sent back to the FCC on the grounds that it “did not adequately consider the effect its sweeping rule change will have on ownership of broadcast media by women and racial minorities.”

Gray TV argues that the FCC was in full compliance with its obligations under the Telecommunications Act of 1996. According to Gray, the law requires the FCC to, first and foremost, consider the effects of marketplace “competition” when modernizing its rules. The Third Circuit ruling, Gray TV writes, “is incorrect because it requires the agency to elevate other policy considerations over the effects of ‘competition.’”

In terms of competition, Gray TV specifically points to the impact low-cost digital media sources have on local news and journalism. The denial of these updated rules subsequently harms small and mid-sized communities who rely on local news.

“Over the last 15 years, the FCC has attempted repeatedly to update its regulations in light of today’s competitive media marketplace, as directed to do so by statute,” Gray TV says. “The FCC, however, has been stymied consistently by the U.S. Court of Appeals for the Third Circuit, which effectively has frozen the regulatory landscape as it existed in 1941 when the FCC first adopted a ‘one-to-market’ rule and when the media marketplace was enormously different than it is today.”

Gray TV joins the NAB in filing amicus briefs in support of the FCC in its case before the Supreme Court. According to Gray TV, a decision on the case is expected by June 2021. 

WASHINGTON—The FCC wants a full reversal from the Supreme Court on the U.S. Third Circuit Court of Appeal’s ruling on its deregulation of local broadcast ownership rules, which invalidated the order and sent it back to the commission.

The FCC voted in 2017 on deregulation efforts that would eliminate newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices on a case-by-case basis; eliminate attribution of joint sales agreement as ownership; and create a diversity incubator program, as well as other diversity mechanism.

A three-judge panel for the Third Circuit Court, however, denied these proposals, saying that the FCC “did not adequately consider the effect its sweeping rule change will have on ownership of broadcast media by women and racial minorities.”

In its official filing with the Supreme Court, the FCC’s main argument is that the Third Circuit has long been blocking the FCC’s efforts to repeal or modify rules that it believes were no longer in the public interest.

The FCC says Congress has directed the commission to review ownership rules every four years to determine whether they are still relevant and if any need to be modified. However, the filing claims that the Third Circuit has “thwarted’ such efforts over the last 17 years.

In regards to this latest proposal, the FCC says “the panel majority did not question the agency’s findings that the restrictions’ original competition and viewpoint-diversity rationales no longer justified their retention. It nevertheless vacated the revised rules solely on the ground that the agency had not adequately analyzed the rules’ likely effect on minority and female ownership of broadcast stations.”

This goes against the established principles of judicial deference, according to the FCC, and as a result keeps these outdated regulations in place against the best interests of broadcast markets.

The NAB filed its own comments with the Supreme Court this week in support of the FCC’s case.

Ultimately, the FCC simply concluded that the Supreme Court should reverse the Third Circuit Court’s order.

The full FCC filing is available online. 

WASHINGTON—NAB filed a brief with the U.S. Supreme Court Nov. 16 arguing the Third Circuit Court of Appeals has overstepped its authority in invalidating an FCC order modernizing local media ownership rules.

The association asked the high court to reinstate the order and end the Third Circuit’s assertion of authority over FCC media ownership rulemaking.  

The modernization of ownership rules eliminates the ban on owning a print newspaper and any radio or TV station in the same market, ends restrictions on owning radio and TV stations in the same market, revises limits on ownership of stations in the same market, reverses a decision on joint sale of advertising time by two TV stations in the same market and reforms the FCC’s approach to embedded markets.

The NAB filing is available online.   

WASHINGTON—The NFL took a loss on Monday, Nov. 2, as the U.S. Supreme Court decided that it would not review an antitrust case that the league is involved in against bars, restaurants and other retail establishments over telecast rights.

The case, National Football League v. Ninth Inning, challenges the league’s practice of teams pooling telecast rights and collectively negotiating a licensing package for out-of-market games. The plaintiffs feel that they are paying “supracompetitive” prices for DirecTV’s SundayTicket to broadcast these games and argue that better terms could be reached if the teams were allowed to compete for individual game streams.

In an earlier decision for the case, the U.S. 9th Circuit Court ruled that “Defendants have failed to identify, and we are unaware of, any binding precedent requiring the teams and the NFL to cooperate in order to produce the telecasts.”

If the NFL does not prevail at summary judgement or a trial, they may again petition the Supreme Court to hear the case.

The full story is available from The Hollywood Reporter. 

WASHINGTON—The U.S. Supreme Court has announced that the FCC’s legal battle over their ability to loosen media ownership rules will get its day with the highest court in the land. Efforts to overhaul the ownership rules date back to 2003.

With a vote in 2017, the FCC proposed deregulation efforts that would eliminate newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices on a case-by-case basis; eliminate attribution of joint sales agreement as ownership; and create a diversity incubator program, as well as other diversity mechanism.

In 2019, however, a three-judge panel of the U.S. Third Circuit Court of Appeals denied these proposals and sent them back to the FCC on the basis that they “did not adequately consider the effect its sweeping rule change will have on ownership of broadcast media by women and racial minorities.”

The FCC attempted to have the entire Third Circuit Court hear its case, but it was rejected. As a result, in April, the Solicitor General of the U.S. officially asked the Supreme Court to hear the case.

FCC Chairman Ajit Pai tweeted in response to the announcement:

The NAB President and CEO Gordon Smith provided a statement on the news, as the NAB has long been in support of the FCC's efforts:

"NAB looks forward to presenting our case before the Supreme Court this term. For almost two decades, the Third Circuit Court of Appeals has blocked common-sense change to outdated broadcast ownership regulations to the detriment of local journalism. This time has come to allow the FCC to modernize its rules." 

It is not clear at this time when the case will go before the Supreme Court.

WASHINGTON—NAB is adding its voice in support of the FCC to have the U.S. Third Circuit Court of Appeals’ decision regarding media ownership deregulation effort heard by the Supreme Court.

The FCC’s efforts to modernize media ownership rules, which were first proposed in 2017, was stayed by a three-judge panel from the Third Circuit, citing that the proposed changes did not sufficiently consider the impact that the changes could have on minority and female ownership.

Specifically, the FCC’s proposals sought to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis; eliminate attribution of joint sales agreements as ownership; and create an incubator program.

In its brief, however, the NAB says that there is one key to this case: “Whether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer ‘necessary in the public interest as the result of competition’ without statistical evidence about the prospective effect of its rules changes on minority and female ownership.” To which the NAB believes the answer is yes.

NAB has said that the Third Circuit Court’s decision is part of a repeated practice to elevate its own policy concerns over the statutory text.

“Due to the same Third Circuit panel’s repeated decisions, ownership rules from decades ago are frozen in place, even as technology ‘has transformed the American people’s consumption of news and information,’” the NAB brief reads. “Those decisions have blocked the ‘iterative process’ designed by Congress to enable the commission to ‘gain experience with its policies so it may assess how its rules function in the marketplace.’ … And, absent this Court’s intervention, the commission will have no choice but to comply with the Third Circuit’s atextual commands in future reviews and will never be able to ‘move on and get it right.’”

NAB concludes that the FCC’s petition to have the decision be reviewed by the Supreme Court should be granted.

The full brief is available online. 

WASHINGTON—A coalition of media and law groups do not want to see the Supreme Court take a step backwards in terms of transparency, requesting that the nation’s highest court continue the practice of allowing for live audio access when its new term begins in October.

A request was made directly to Chief Justice John Roberts via a letter as the Supreme Court heads into its annual summer recess.

The Supreme Court had long resisted calls to offer live broadcast feeds of any kind on its proceedings, only allowing for a few in attendance or providing recorded audio clips to be aired afterward. However, when the pandemic forced the court to move to remote proceedings, it announced that it would make a live audio feed available to the public. The result was Americans getting the chance to better understand the deliberations and thoughtfulness of the justices, according to the group’s letter, as both the court and broadcasters offered the audio feeds.

“Real-time broadcasts not only give the public direct access to an engaging, intellectual bench; they also diminish the ability of partisan interests to color a case in ways that serve narrow ends,” the letter reads. “They offer civic lessons that cannot be replicated under the old rules, where only 50 to 100 members of the public gain entry to an argument and with audio released on Fridays being of limited use in the modern-day news cycle.

“Live audio helps America understand the Supreme Court,” it continues. “We believe that if continued, it will benefit the institution—and the civic health of the country—immensely.”

The letter was signed by the American Society of Magazine Editors, Fix the Court, Free Law Project, Government Information Watch, National Press Foundation, National Press Photographers Association, National Security Counselors, News Leaders Associations, Niskanen Center, Open the Government, Project on Government Oversight, R Street Institute, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and Tully Center at Syracuse University.

There has been push in years past to also allow cameras into the Supreme Court for live coverage, but there is no mention of that in this letter.

The Supreme Court’s new term is slated to begin on the first Monday of October.

The full letter is available online.

ATLANTA & WASHINGTON—Starting May 4, Court TV will bring live audio of Supreme Court oral arguments to its viewers, the first time that real-time arguments will be available from the Supreme Court.

The Supreme Court announced earlier in April that it would conduct oral arguments via a conference call starting in May after suspending oral arguments in March and April because of the coronavirus. It was later revealed that these arguments would be available for the public to listen in on live.

Court TV’s coverage of the hearings will feature the live audio while also presenting images and graphics of the litigants and justices as they speak. Court TV morning anchor Ted Rowlands will host the coverage, which will include additional reporting and commentary from other Court TV contributors. Special coverage will also be given to explain the cases being heard and their importance to viewers.

Here is the schedule for the Supreme Court cases:

May 4: United States Patent and Trademark Office v. Booking.com B.V.

May 5: Agency for International Development v. Alliance for Open Society International Inc.

May 6:  Little Sisters of the Poor Saints and Paul Home v. Pennsylvania; Trump v. Pennsylvania; and Barr v. American Association of Political Consultants Inc. 

May 11: McGirt v. Oklahoma; Our Lady of Guadalupe School v. Morrissey-Berru; and St. James School v. Biel

May 12: Trump v. Mazars USA LLP; Trump v. Deutsche Bank AG; and Trump v. Vance

May 13: Chiafalo v. Washington; and Colorado Department of State v. Baca

WASHINGTON—The FCC wants to take their case regarding new media ownership deregulations all the way to the Supreme Court as the Solicitor General of the U.S. has officially asked the court to review the decision of the U.S. Third Circuit Court of Appeals that rejected many of the commission’s efforts.

The media deregulation efforts on the table would eliminate newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices on a case-by-case basis; eliminate attribution of joint sales agreement as ownership; and create a diversity incubator program, as well as other diversity mechanisms, per the FCC.

In September 2019, a Third Circuit Court panel denied these proposals and sent them back to the FCC to be modified, saying they “did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities.” The FCC attempted to have the entire Third Circuit Court hear its case, but that was rejected by the court as well.

The FCC argues that these decisions are not allowing it to fulfill the mandate it has from Congress to repeal or modify any rules that are no longer in the public interest. Going to the Supreme Court is the last legal option available to the FCC.

“The Supreme Court’s intervention is necessary to restore the commission’s discretion to regulate in the public interest and modernize media ownership regulation for the digital age, as Congress intended,” said FCC Chairman Ajit Pai in a statement.

WASHINGTON—In a 5-4 ruling, the U.S. Supreme Court ruled that a cable access TV station has the right to restrict programming and does not represent local government as a “state actor.”

In “Manhattan Community Access Corp. v. Halleck,” two producers from the New York City cable access TV station claimed that the station violated their First Amendment rights when they restricted access to the station after it aired their program, a show the station afterwards termed “unfavorable.”

The producers argued that the move violated their right to free speech, claiming that, even though the station was a private entity, it was representing the local government. Speaking for the majority, Justice Kavanaugh ruled that public access stations are not, in fact “state actors” under existing precedent and merely by the fact that it allows the public to express their opinions on the air.

Jurist.org has the story. 

WASHINGTON—Hope for cameras in the Supreme Court anytime soon got a pretty good dashing last week in a House Appropriations Subcommittee on Financial Services & General Government High Court budget hearing.

Chairman Rep. Mike Quigley (D-Ill.) is a big fan of letting cameras in, and made that clear in his opening statement at the March 7 hearing, including a plug for the cable-industry-backed public service suite of networks that is the public's eyes and ears on other important branches.

The Supreme Court has released some same-day audio of important cases, but Quigley said that just highlights the fact that the court has the capability of reaching that wider public.

"Whether you are here in Washington or in the comfort of your own home, you can watch Congress and the executive branch in action on C-SPAN," he said. "This is an important part of making our nation’s legislative and executive branch open and transparent to all Americans.

But one government institution remains closed to the public eye—the U.S. Supreme Court. Supreme Court decisions on major cases from Brown v. Board of Education to Bush v. Gore have significantly shaped American society and changed history," he continued. "Unfortunately, due to antiquated practices and policies, we have no video record of these historic decisions. In 2019, with so much new and innovative technology at our fingertips, it is time we use every tool available to preserve America’s judicial history."

"It is not unreasonable for the American people to have an opportunity to hear firsthand the arguments and opinions that will shape their society for years to come," said Quigley.

Maybe not, but the two Justices appearing before the committee, Justices Elena Kagan and Samuel Alito, provided little hope that opportunity was forthcoming.

Quigley pointed out that the hearing they were participating in was on C-SPAN, so "our mistakes are live." He asked if there was an evolving sense of at least expanding to some limited video of court arguments.

Justice Alito came prepared with a reasoned argument as to why that was probably not going to be the case.

He said everyone on the court shared Congress' interest in making the proceedings as accessible as they can, but only consistent with the court's paramount function, which was deciding cases in the best possible way.

Alito said that the court was already much more accessible than it was when he started out as a lawyer. He pointed out that in pre-internet days, it was not very easy to find opinions or read them in your homes.

Now, every opinion is instantly available on the court's website, as well as same-day transcripts of arguments, with every judge identified (that was not previously the case) and audio by the end of the week.

In fact, Alito said that other than hearing their voices immediately or seeing their faces with their lips moving, thanks to electronic filing, free of charge, the public can see everything that goes on in the court.

But as to televising arguments, Alito said most people think that should be the case, including most members of his family. In fact, he even used to think they should be televised back when he was a judge on the U.S. Court of Appeals for the Third Circuit, when he voted to allow that court's arguments to be televised.

"I came to believe that allowing arguments to be televised would undermine their value to us as a step in the decision making process," Alito said. "Lawyers would find it irresistible to put in a little sound bite in the hope of being that evening on CNN or Fox or MSNBC or one of the broadcast networks, and that would detract from the value of the arguments."

He said he recognized that times change, but suggested that televised change may need to await their successors "years from now."

He said it has been a while since they talked about it collectively, but that it has been their consensus for a while that televising the arguments would be access "at the expense of the decision making process."

Kagan echoed that the justices have not conferenced on the issue since she has been there (2010). The newest justice, Brett Kavanaugh, has said he was open to considering cameras.

Justice Kagan agreed with Justice Alito that her views had evolved. She said the benefit of having cameras would be that people would see an institution at work, and doing that work pretty well. "Faith in institutions of government is an incredibly important thing," she said, suggesting the public's faith would be strengthened by seeing how they did their jobs "thoughtfully and deliberately."

But she said she "wholeheartedly agreed" with Alito that the court continue to function in that way, and not letting people see it doing so if access came at the expense of that process, which she called "a very bad bargain. She worried that cameras "might come at that expense."

Kagan likened it to the physics principle that when you add the observer, the observed changes. She said that if Congress were given truth serum, some would agree that "hearings change when cameras are there."

She feared participants in the process would wind up self-filtering the first time they saw something on the evening news taken out of context. She points out she often plays devil's advocate, which taken as a sound bite out of context might make her appear to have views on things that she does not. She worried that kind of questioning, which is conducive to good decision making, would be damaged.

"The justice’s comments last week about televising the Court’s oral arguments were not a surprise, but they were a disappointment," said Bruce Colline, corporate VP and general counsel for C-SPAN. "We used to think that as newer and younger members, like Justices Alito and Kagan, joined the Court that the institution would become more receptive to the idea. That turns out not to be the case. Nevertheless, C-SPAN continues to believe cameras in the Court would be good for the country and the Court itself. And, if the Court ever does allow camera coverage, we will be ready and we will televise every oral argument to our national audience."