FCC v. Prometheus Radio Project

P R E L I M I N A R Y P R I N T
Volume 592 U. S. Part 2
Pages 414–432
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 1, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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414 OCTOBER
TERM, 2020
Syllabus
FEDERAL COMMUNICATIONS COMMISSION et al. v.
PROMETHEUS
RADIO PROJECT et al.
certiorari to the united states court of appeals for
the third circuit
No. 19–1231. Argued January 19, 2021—Decided April 1, 2021*
Under its broad authority to regulate broadcast media in the public inter-
est, the Federal Communications Commission (FCC) has long main-
tained several ownership rules that limit the number of radio stations,
television stations, and newspapers that a single entity may own in a
given market. Section 202(h) of the Telecommunications Act of 1996
directs the FCC to review its media ownership rules every four years
and to repeal or modify any rules that no longer serve the public interest.
In 2017, the FCC concluded that three of its ownership rules were no
longer necessary to promote competition, localism, or viewpoint diver-
sity. The Commission further concluded that the record evidence did
not suggest that repealing or modifying those three rules was likely to
harm minority and female ownership. Based on that analysis, the
agency decided to repeal two of those three ownership rules and modify
the third. Prometheus Radio Project and several other public interest
and consumer advocacy groups (collectively, Prometheus) petitioned for
review, arguing that the FCC's decision to repeal or modify the three
rules was arbitrary and capricious under the Administrative Procedure
Act (APA). The Third Circuit vacated the FCC's reconsideration order,
holding that the record did not support the agency's conclusion that
the rule changes would have minimal effect on minority and female
ownership.
Held: The FCC's decision to repeal or modify the three ownership rules
was not arbitrary and capricious for purposes of the APA. In analyzing
whether to repeal or modify its existing ownership rules, the FCC con-
sidered the record evidence and reasonably concluded that the three
ownership rules at issue were no longer necessary to serve the agency's
public interest goals of competition, localism, and viewpoint diversity,
and that the rule changes were not likely to harm minority and female
ownership.
*Together with No. 19–1241, National Association of Broadcasters
et al. v. Prometheus Radio Project et al., also on certiorari to the same
court.

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Cite
as: 592 U. S. 414 (2021)
415
Syllabus
In challenging the FCC's order, Prometheus argues that the Commis-
si
on's assessment of the likely impact of the rule changes on minority
and female ownership rested on fawed data. But the FCC acknowl-
edged the gaps in the data sets it relied on, and noted that, despite its
repeated requests for additional data, it had received no countervailing
evidence suggesting that changing the three ownership rules was likely
to harm minority and female ownership. Prometheus also asserts that
the FCC ignored two studies submitted by a commenter that purported
to show that past relaxations of the ownership rules had led to decreases
in minority and female ownership levels. But the record demonstrates
that the FCC considered those studies and simply interpreted them
differently.
In assessing the effects of the rule changes on minority and female
ownership, the FCC did not have perfect empirical or statistical data.
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 con-
duct such studies before exercising its discretion under Section 202(h).
In light of the sparse record on minority and female ownership and
the FCC's fndings with respect to competition, localism, and viewpoint
diversity, the Court cannot say that the agency's decision to repeal or
modify the ownership rules fell outside the zone of reasonableness for
purposes of the APA. Pp. 422–428.
939 F. 3d 567, reversed.
Kavanaugh, J., delivered the opinion for a unanimous Court. Thomas,
J., fled a concurring opinion, post, p. 428.
Deputy Solicitor General Stewart argued the cause for
petitioners in No. 19–1231. With him on the briefs were
Acting Solicitor General Wall, Assistant Attorney General
Delrahim, Deputy Assistant Attorney General Murray, Aus-
tin L. Raynor, Thomas M. Johnson, Jr., and Jacob M. Lewis.
Helgi C. Walker argued the cause for petitioners in No.
19–1241. With her on the briefs fled in both cases were
Eve Klindera Reed, Craig E. Gilmore, Kevin F. King, Rafael
Reyneri, and Jeetander T. Dulani.
Ruthanne M. Deutsch argued the cause for respondents in
both cases. With her on the brief were Hyland Hunt,

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416 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
Cheryl A. Leanza, Brian Wolfman, Andrew Jay Schwartz-
m
an, Dennis Lane, and Marcia S. Cohen.†
Justice Kavanaugh delivered the opinion of the Court.
Under the Communications Act of 1934, the Federal Com-
munications Commission possesses broad authority to regu-
late broadcast media in the public interest. Exercising that
†Briefs of amici curiae urging reversal in both cases were fled for the
ABC Television Affliates Association et al. by Mark J. Prak and Jason E.
Rademacher; for the Americans for Prosperity Foundation by Michael
Pepson and Eric R. Bolinder; for Gray Television, Inc. by David E. Mills,
Elizabeth B. Prelogar, Robert M. McDowell, and Barrett J. Anderson; for
the Phoenix Center for Advanced Legal & Economic Public Policy Studies
by Lawrence J. Spiwak; for the Southeastern Legal Foundation by Tyler
R. Green and Jeffrey M. Harris; and for TechFreedom by Corbin K.
Barthold.
Briefs of amici curiae urging affrmance in both cases were fled for the
District of Columbia et al. by Karl A. Racine, Attorney General of the
District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van
Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solici-
tor General, and Samson J. Schatz, Assistant Attorney General, and by
the Attorneys General for their respective States as follows: Xavier Be-
cerra of California, Philip J. Weiser of Colorado, William Tong of Con-
necticut, Kathleen Jennings of Delaware, Clare E. Connors of Hawaii,
Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan,
Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Gurbir S. Grewal
of New Jersey, Hector Balderas of New Mexico, Letitia James of New
York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of Oregon,
Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas
J. Donovan, Jr., of Vermont, Mark R. Herring of Virginia, and Robert W.
Ferguson of Washington; for the American Statistical Association by Elie
Ian Herman; for Former FCC Commissioners by Christopher J. Wright;
for the Leadership Conference on Civil and Human Rights et al. by Peter
K. Stris, Elizabeth Rogers Brannen, Vanita Gupta, Corrine Yu, Michael
Zubrensky, Michael N. Donofrio, and Bridget Asay; for Media Law and
Policy Scholars by James Davy; for Members of Congress by Elizabeth B.
Wydra and Brianne J. Gorod; for Professors of Communications Law et al.
by Catherine J. K. Sandoval, pro se; for Public Citizen by Nandan M.
Joshi, Allison M. Zieve, and Scott L. Nelson; for Public Knowledge by
Harold Feld; and for Sue Wilson et al. by Richard Faulkner.

Cite
as: 592 U. S. 414 (2021)
417
Opinion of the Court
statutory authority, the FCC has long maintained strict own-
ersh
ip rules. The rules limit the number of radio stations,
television stations, and newspapers that a single entity may
own in a given market. Under Section 202(h) of the Tele-
communications Act of 1996, the FCC must review the own-
ership rules every four years, and must repeal or modify any
ownership rules that the agency determines are no longer in
the public interest.
In a 2017 order, the FCC concluded that three of its owner-
ship rules no longer served the public interest. The FCC
therefore repea led two of those r ules—the Newspaper/
Broadcast Cross-Ownership Rule and the Radio/Television
Cross-Ownership Rule. And the Commission modifed the
third—the Local Television Ownership Rule. In conducting
its public interest analysis under Section 202(h), the FCC
considered the effects of the rules on competition, local-
ism, viewpoint diversity, and minority and female ownership
of broadcast media outlets. The FCC concluded that the
three rules were no longer necessary to promote competi-
tion, localism, and viewpoint diversity, and that changing
the rules was not likely to harm minority and female
ownership.
A non-proft advocacy group known as Prometheus Radio
Project, along with several other public interest and con-
sumer advocacy groups, petitioned for review, arguing that
the FCC's decision was arbitrary and capricious under the
Administrative Procedure Act. In particular, Prometheus
contended that the record evidence did not support the
FCC's predictive judgment regarding minority and female
ownership. Over Judge Scirica's dissent, the U. S. Court of
Appeals for the Third Circuit agreed with Prometheus and
vacated the FCC's 2017 order.
On this record, we conclude that the FCC's 2017 order was
reasonable and reasonably explained for purposes of the
APA's deferential arbitrary-and-capricious standard. We
therefore reverse the judgment of the Third Circuit.
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418 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
I
The
Federal Communications Commission possesses broad
statutory authority to regulate broadcast media “as public
convenience, interest, or necessity requires.” 47 U. S. C.
§ 303; see also § 309(a). Exercising that authority, the FCC
has historically maintained several strict ownership rules.
The rules limit the number of radio stations, television sta-
tions, and newspapers that a single entity may own in a
given market. See FCC v. National Citizens Comm. for
Broadcasting, 436 U. S. 775, 780–781, and nn. 1–3, 783–784
(1978). The FCC has long explained that the ownership
rules seek to promote competition, localism, and viewpoint
diversity by ensuring that a small number of entities do not
dominate a particular media market. See id., at 780–781,
808; In re 2002 Biennial Regulatory Review—Notice of
Proposed Rulemaking, 17 FCC Rcd. 18503, 18515–18527
(2002).
This case concerns three of the FCC's current owner-
ship rules. The frst is the Newspaper/Broadcast Cross-
Ownership Rule. Initially adopted in 1975, that rule pro-
hibits a single entity from owning a radio or television
broadcast station and a daily print newspaper in the same
mediamarket. The second is the Radio/Television Cross-
Ownership Rule. Initially adopted in 1970, that rule limits
the number of combined radio stations and television sta-
tions that an entity may own in a single market. And the
third is the Local Television Ownership Rule. Initially
adopted in 1964, that rule restricts the number of local
television stations that an entity may own in a single
market.
The FCC adopted those rules in an early-cable and pre-
Internet age when media sources were more limited. By
the 1990s, however, the market for news and entertainment
had changed dramatically. Technological advances led to a
massive increase in alternative media options, such as cable
television and the Internet. Those technological advances
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419
Opinion of the Court
challenged the traditional dominance of daily print newspa-
pers,
local radio stations, and local television stations. See,
e. g., In re 2002 Biennial Regulatory Review—Report and
Order and Notice of Proposed Rulemaking, 18 FCC Rcd.
13620, 13647–13667 (2003) (2002 Review).
In 1996, Congress passed and President Clinton signed the
Telecommunications Act. To ensure that the FCC's owner-
ship rules do not remain in place simply through inertia, Sec-
tion 202(h) of the Act directs the FCC to review its owner-
ship rules every four years to determine whether those rules
remain “necessary in the public interest as the result of com-
petition.” § 202(h), 110 Stat. 111–112, as amended § 629, 118
Stat. 99–100, note following 47 U. S. C. § 303. After conduct-
ing each quadrennial Section 202(h) review, the FCC “shall
repeal or modify” any rules that it determines are “no longer
in the public interest.” Ibid. Section 202(h) establishes an
iterative process that requires the FCC to keep pace with
industry developments and to regularly reassess how its
rules function in the marketplace. See In re 2002 Biennial
Regulatory Review—Report, 18 FCC Rcd. 4726, 4732 (2003).
Soon after Section 202(h) was enacted, the FCC stated
that the agency's traditional public interest goals of promot-
ing competition, localism, and viewpoint diversity would in-
form its Section 202(h) analyses. 2002 Review, 18 FCC
Rcd., at 13627; see also In re 1998 Biennial Regulatory
Review, 15 FCC Rcd. 11058, 11061–11062 (2000). The FCC
has also said that, as part of its public interest analysis under
Section 202(h), it would assess the effects of the ownership
rules on minority and female ownership. 2002 Review, 18
FCC Rcd., at 13627, 13634, and n. 67; see also In re 2010
Quadrennial Regulatory Review—Notice of Inquiry, 25
FCC Rcd. 6086, 6106 (2010); cf. In re Amendment of Section
73.3555 [formerly Sections 73.35, 73.240 and 73.636] of the
Commission's Rules Relating to Multiple Ownership of
AM, FM and Television Broadcast Stations, 100 F. C. C. 2d
74, 97 (1985).
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420 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
Since 2002, the Commission has repeatedly sought to
change
several of its ownership rules—including the three
rules at issue here—as part of its Section 202(h) reviews.
See 2002 Review, 18 FCC Rcd., at 13622–13623 (eliminat-
ing strict caps on newspaper/ broadcast and radio/television
cross-ownership and modifying the Local Television Owner-
ship Rule); In re 2006 Quadrennial Regulatory Review—
Report and Order and Order on Reconsideration, 23 FCC
Rcd. 2010, 2021 (2008) (relaxing the Newspaper/Broadcast
Cross-Ownership Rule). But for the last 17 years, the Third
Circuit has rejected the FCC's efforts as unlawful under the
APA. See Prometheus Radio Project v. FCC, 373 F. 3d 372
(2004); Prometheus Radio Project v. FCC, 652 F. 3d 431
(2011); see also 824 F. 3d 33 (2016). As a result, those three
ownership rules exist in substantially the same form today
as they did in 2002.
1
The current dispute arises out of the FCC's most recent
attempt to change its ownership rules. In its quadrennial
Section 202(h) order issued in 2016, the FCC concluded that
the Newspaper/ Broadcast Cross-Ownership, Radio/ Tele-
vision Cross-Ownership, and Local Television Ownership
Rules remained necessary to serve the agency's public inter-
est goals of promoting “competition and a diversity of view-
points in local markets.” In re 2014 Quadrennial Regula-
tory Review—Second Report and Order, 31 FCC Rcd. 9864,
9865 (2016) (2016 Order). The FCC therefore chose to re-
tain the existing rules with only “minor modifcations.”
Ibid.
1
The FCC currently has two other ownership rules that are subject to
its quadrennial Section 202(h) review: (1) the Local Radio Ownership Rule,
which limits the number of radio stations that an entity may own in a
single market, and (2) the Dual Network Rule, which prohibits mergers
among the top four television broadcast networks (ABC, CBS, Fox, and
NBC). The FCC has one additional ownership rule, the National Televi-
sion Ownership Rule, which is not subject to review under Section 202(h).
That rule limits the number of television stations that a single entity may
own nationwide. Those other rules are not at issue in this case.
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421
Opinion of the Court
A number of groups sought reconsideration of the 2016
Order
. In 2017, the Commission (with a new Chair) granted
reconsideration. In re 2014 Quadrennial Regulatory Re-
view—Order on Reconsideration and Notice of Proposed
Rulemaking, 32 FCC Rcd. 9802 (2017) (2017 Reconsideration
Order). On reconsideration, the FCC performed a new pub-
lic interest analysis. The agency explained that rapidly
evolving technology and the rise of new media outlets—
par ticu lar ly cable and Inter net —had transfor med how
Americans obtain news and entertainment, rendering some
of the ownership rules obsolete. See, e. g., id., at 9811–9815.
As a result of those market changes, the FCC concluded that
the three ownership rules no longer served the agency's pub-
lic interest goals of fostering competition, localism, and view-
point diversity. Id., at 9810, 9830, and n. 197, 9835–9836.
The FCC explained that permitting effcient combinations
among radio stations, television stations, and newspapers
would beneft consumers. See id., at 9819, 9830, 9835–9836.
The Commission also considered the likely impact of any
changes to its ownership rules on minority and female own-
ership. The FCC concluded that repealing or modifying
the three ownership rules was not likely to harm minority
and female ownership. Id., at 9822–9824, 9830–9831, 9839–
9840.
2
Based on its analysis of the relevant factors, the FCC
decided to repeal the Newspaper/Broadcast and Radio/Tele-
vision Cross-Ownership Rules, and to modify the Local Tele-
vision Ownership Rule. Id., at 9803.
2
2017 Reconsideration Order, 32 FCC Rcd., at 9822 (“We fnd that re-
pealing the” Newspaper/Broadcast Cross-Ownership Rule “will not have
a material impact on minority and female ownership”); id., at 9830 (“[W]e
fnd that the record fails to demonstrate that eliminating the Radio/Televi-
sion Cross-Ownership Rule is likely to harm minority and female owner-
ship”); id., at 9839 (“We fnd that the modifcations we adopt to the Local
Television Ownership Rule are not likely to harm minority and female
ownership”).
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422 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
Prometheus and several other public interest and con-
sumer
advocacy groups petitioned for review, arguing that
the FCC's decision to repeal or modify those three rules was
arbitrary and capricious under the APA.
The Third Circuit vacated the 2017 Reconsideration Order.
The court did not dispute the FCC's conclusion that those
three ownership rules no longer promoted the agency's pub-
lic interest goals of competition, localism, and viewpoint di-
versity. But the court held that the record did not support
the FCC's conclusion that the rule changes would “have min-
imal effect” on minority and female ownership. 939 F. 3d
567, 584 (2019). The court directed the Commission, on re-
mand, to “ascertain on record evidence” the effect that any
rule changes were likely to have on minority and female
ownership, “whether through new empirical research or an
in-depth theoretical analysis.” Id., at 587.
Judge Scirica dissented in relevant part. In his view, the
FCC reasonably analyzed the record evidence and made a
reasonable predictive judgment that the rule changes were
not likely to harm minority and female ownership. Id., at
590.
The FCC and a number of industry groups petitioned for
certiorari. We granted certiorari. 591 U. S. ––– (2020).
II
In the 2017 Reconsideration Order, the FCC changed
three of its ownership rules because it concluded that the
rules were no longer in the public interest. In particular,
the FCC concluded that the rules no longer served the
agency's goals of fostering competition, localism, and view-
point diversity, and further concluded that repealing or modi-
fying the rules was not likely to harm minority and female
ownership.
Prometheus argues that the FCC's predictive judgment
regarding minority and female ownership was arbitrary and
capricious under the APA. See 5 U. S. C. § 706(2)(A). We
disagree.
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423
Opinion of the Court
The APA's arbitrary-and-capricious standard requires that
a
gency acti on be reasonable and reasonably explai ned.
Judicial review under that standard is deferential, and a
court may not substitute its own policy judgment for that of
the agency. A court simply ensures that the agency has
acted within a zone of reasonableness and, in particular, has
reasonably considered the relevant issues and reasonably ex-
plained the decision. See FCC v. Fox Television Stations,
Inc., 556 U. S. 502, 513–514 (2009); Motor Vehicle Mfrs. Assn.
of United States, Inc. v. State Farm Mut. Automobile Ins.
Co., 463 U. S. 29, 43 (1983); see also FCC v. WNCN Listeners
Guild, 450 U. S. 582, 596 (1981).
In its 2017 Reconsideration Order, the FCC analyzed the
signifcant record evidence of dramatic changes in the media
market over the past several decades. See, e. g., 32 FCC
Rcd., at 9803, 9807, 9825, 9834. After thoroughly examin-
ing that record evidence, the Commission determined that
the Newspaper/ Broadcast Cross-Ownership, Radio/ Tele-
vision Cross-Ownership, and Local Television Ownership
Rules were no longer necessary to serve the agency's public
interest goals of promoting competition, localism, and view-
point diversity. The FCC therefore concluded that repeal-
ing the two cross-ownership rules and modifying the Local
Television Ownership Rule would fulfll “the mandates of
Section 202(h)” and “deliver on the Commission's promise to
adopt broadcast ownership rules that refect the present, not
the past.” Id., at 9803.
In analyzing whether to repeal or modify those rules, the
FCC also addressed the possible impact on minority and fe-
male ownership. The Commission explained that it had
sought public comment on the issue of minority and female
ownership during multiple Section 202(h) reviews, but “no
arguments were made” that would lead the FCC to conclude
that the existing rules were “necessary to protect or pro-
mote minority and female ownership.” Id., at 9822; see also
id., at 9831, 9839; cf. In re 2006 Quadrennial Regulatory
Review—Further Notice of Proposed Rulemaking, 21 FCC
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424 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
Rcd. 8834, 8837 (2006) (soliciting evidence on minority and
f
emale ownership); In re 2010 Qu adrenni al Regulatory
Review—Notice of Inquiry, 25 FCC Rcd., at 6106, 6108–6109
(same); In re 2014 Quadrennial Regulatory Review—
Further Notice of Proposed Rulemaking and Report and
Order, 29 FCC Rcd. 4371, 4460, and n. 595, 4470 (2014)
(same). Indeed, the FCC stated that it had received sev-
eral comments suggesting the opposite—namely, comments
suggesti ng that el i mi nati ng the Newspaper/ Broadcast
Cross-Ownership Rule “potentially could increase minority
ownership of newspapers and broadcast stations.” 2017 Re-
consideration Order, 32 FCC Rcd., at 9823 (emphasis added).
Based on the record, the Commission concluded that repeal-
ing or modifying the three rules was not likely to harm mi-
nority and female ownership. See id., at 9822, 9830, 9839.
In challenging the 2017 Reconsideration Order in this
Court, Prometheus does not seriously dispute the FCC's con-
clusion that the existing rules no longer serve the agency's
public interest goals of competition, localism, and viewpoint
diversity. Rather, Prometheus targets the FCC's assess-
ment that altering the ownership rules was not likely to
harm minority and female ownership.
Prometheus asserts that the FCC relied on fawed data in
assessing the likely impact of changing the rules on minority
and female ownership. Prometheus further argues that the
FCC ignored superior data available in the record.
Prometheus initially points to two data sets on which the
FCC relied in the 2016 Order and the 2017 Reconsideration
Order. Those data sets measured the number of minority-
owned media outlets before and after the Local Television
Ownership Rule and the Local Radio Ownership Rule were
relaxed in the 1990s. Together, the data sets showed a
slight decrease in the number of minority-owned media out-
lets immediately after the rules were relaxed, followed by
an eventual increase in later years. The 2016 Order cited
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as: 592 U. S. 414 (2021)
425
Opinion of the Court
those data sets and explained that the number of minority-
owned
media outlets had increased over time. But the FCC
added that there was no record evidence suggesting that
past changes to the ownership rules had caused minority
ownership levels to increase. See 31 FCC Rcd., at 9894–
9895; id., at 9911–9912.
In the 2017 Reconsideration Order, the FCC referred to
the 2016 Order's analysis of those data sets. The FCC
stated that data in the record suggested that the previous
relaxations of the Local Television Ownership and Local
Radio Ownership Rules “have not resulted in reduced levels
of minority and female ownership.” 2017 Reconsideration
Order, 32 FCC Rcd., at 9831; see also id., at 9823; id., at 9839.
The FCC further explained that “no party” had “presented
contrary evidence or a compelling argument demonstrating
why” altering the rules would have a different impact today.
Id., at 9839; see also id., at 9823, and n. 138; id., at 9831,
and n. 201. The FCC therefore concluded that “the record
provides no information to suggest” that eliminating or mod-
ifying the existing rules would harm minority and female
ownership. Id., at 9831; see also id., at 9823; id., at 9839.
Prometheus insists that the FCC's numerical comparison
was overly simplistic and that the data sets were materially
incomplete. But the FCC acknowledged the gaps in the
data. And despite repeatedly asking for data on the issue,
the Commission received no other data on minority owner-
ship and no data at all on female ownership levels. See 2016
Order, 31 FCC Rcd., at 9894–9895, nn. 211–212; id., at 9911,
n. 325; 2017 Reconsideration Order, 32 FCC Rcd., at 9822–
9823, and n. 138 (incorporating 2016 Order's discussion of
data sets); id., at 9831, and n. 201 (same); id., at 9839, and
n. 243 (same). The FCC therefore relied on the data it had
(and the absence of any countervailing evidence) to predict
that changing the rules was not likely to harm minority and
female ownership.
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426 FCC
v. PROMETHEUS RADIO PROJECT
Opinion of the Court
Prometheus a lso asser ts that countervai l i ng—and
super
ior—evidence was in fact in the record, and that the
FCC ignored that evidence. Prometheus identifes two
studies submitted to the FCC by Free Press, a media reform
group. Those studies purported to show that past relax-
ations of the ownership rules and increases in media mar-
ket concentration had led to decreases in minority and fe-
male ownership levels. According to Prometheus, the Free
Press studies undercut the FCC's prediction that its rule
changes were unl ikely to har m mi nor ity and fema le
ownership.
The FCC did not ignore the Free Press studies. The
FCC simply interpreted them differently. In particular, in
the 2016 Order, the Commission explained that its data sets
and the Free Press studies showed the same long-term in-
crease in minority ownership after the Local Television
Ownership and Local Radio Ownership Rules were relaxed.
31 FCC Rcd., at 9895, and n. 215; id., at 9912, and n. 329.
Moreover, as counsel for Prometheus forthrightly acknowl-
edged at oral argument, the Free Press studies were purely
backward-looking, and offered no statistical analysis of the
likely future effects of the FCC's proposed rule changes on
minority and female ownership. See Tr. of Oral Arg. 75–76.
In short, the FCC's analysis was reasonable and reason-
ably explai ned for pur poses of the APA's deferentia l
arbitrary-and-capricious standard. The FCC considered the
record evidence on competition, localism, viewpoint diver-
sity, and minority and female ownership, and reasonably con-
cluded that the three ownership rules no longer serve the
public interest. The FCC reasoned that the historical justi-
fcations for those ownership rules no longer apply in today's
media market, and that permitting effcient combinations
among radio stations, television stations, and newspapers
would beneft consumers. The Commission further ex-
plained that its best estimate, based on the sparse record
evidence, was that repealing or modifying the three rules
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427
Opinion of the Court
at issue here was not likely to harm minority and female
ownersh
ip. The APA requires no more.
3
To be sure, in assessing the effects on minority and female
ownership, the FCC did not have perfect empirical or statis-
tical data. Far from it. But that is not unusual in day-
to-day agency decisionmaking within the Executive Branch.
The APA imposes no general obligation on agencies to con-
duct or commission their own empirical or statistical studies.
Cf. Fox Television, 556 U. S., at 518–520; Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council,
Inc., 435 U. S. 519, 524 (1978). And nothing in the Telecom-
munications Act (or any other statute) requires the FCC to
conduct its own empirical or statistical studies before exer-
cising its discretion under Section 202(h). Here, the FCC
repeatedly asked commenters to submit empirical or statisti-
cal studies on the relationship between the ownership rules
and minority and female ownership. See, e. g., In re 2014
Quadrennial Review, 29 FCC Rcd., at 4460, and n. 595. De-
spite those requests, no commenter produced such evidence
indicating that changing the rules was likely to harm minor-
ity and female ownership. In the absence of additional data
from commenters, the FCC made a reasonable predictive
judgment based on the evidence it had. See State Farm,
463 U. S., at 52.
In light of the sparse record on minority and female own-
ership and the FCC's fndings with respect to competition,
localism, and viewpoint diversity, we cannot say that the
3
Because we hold that the Third Circuit's judgment must be reversed
under ordinary principles of arbitrary-and-capricious review, we need not
reach the industry petitioners' alternative argument that the text of Sec-
tion 202(h) does not authorize (or at least does not require) the FCC to
consider minority and female ownership when the Commission conducts
its quadrennial reviews. We also need not consider the industry petition-
ers' related argument that the FCC, in its Section 202(h) review of an
ownership rule, may not consider minority and female ownership unless
promoting minority and female ownership was part of the FCC's original
basis for that ownership rule.
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Thomas, J., concurring
agency's decision to repeal or modify the ownership rules fell
outside
the zone of reasonableness for purposes of the APA.
4
***
We reverse the judgment of the U. S. Court of Appeals for
the Third Circuit.
It is so ordered.
Justice Thomas, concurring.
As the Court correctly holds, the Federal Communications
Commission's orders were not arbitrary and capricious.
Based on the record evidence available, the FCC reasonably
concluded that modifying its broadcast ownership rules
would not harm minority and female ownership of broadcast
media. I write separately to note another, independent rea-
son why reversal is warranted: The Third Circuit improperly
imposed nonstatutory procedural requirements on the FCC
by forcing it to consider ownership diversity in the frst
place.
The FCC had no obligation to consider minority and fe-
male ownership. Nothing in § 202(h) of the Telecommunica-
tions Act of 1996 directs the FCC to consider rates of minor-
ity and female ownership. See note following 47 U. S. C.
§ 303 (requiring the FCC simply to consider “ `the public in-
terest as the result of competition' ”). Nor could any court
force the FCC to consider ownership diversity: Courts have
no authority to impose “judge-made procedur[es]” on agen-
4
The Third Circuit also vacated the FCC's separate 2018 Incubator
Order and the 2016 Order's defnition of “eligible entity.” But the Third
Circuit did not offer any independent reasons for doing so. Instead, it
vacated those agency actions based solely on its conclusion that the FCC
failed to adequately consider minority and female ownership in the 2017
Reconsideration Order. Because we reverse the judgment of the Third
Circuit as to the 2017 Reconsideration Order, it follows that the Third
Circuit's judgment as to the Incubator Order and “eligible entity” defni-
tion is also reversed.
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429
Thomas, J., concurring
cies. Perez v. Mortgage Bankers Assn., 575 U. S. 92, 102
(2015).
D
isregarding these limits, the Third Circuit imposed on
the FCC a nonstatutory requirement to consider minority
and female ownership. The court frst did so in 2004 when
it vacated the FCC's modifcation of its Local Television
Ownership Rule, faulting the FCC for “failing to mention
anything about the effect this change would have on poten-
tial minority station owners.” 373 F. 3d 372, 420 (2004). It
then directed the FCC on remand to “consider . . . proposals
for enhancing ownership opportunities for women and minor-
ities.” Id., at 435, n. 82; accord, 652 F. 3d 431, 471 (2011)
(reiterating that its “prior remand requir[ed] the Commis-
sion to consider the effect of its rules on minority and female
ownership”). Repeating this error in 2016, the Third Cir-
cuit mandated that the FCC, “in addition to § 202(h)'s re-
quirement . . . , include a determination about `the effect of
the rules on minority and female ownership.' ” 824 F. 3d 33,
54, n. 13 (quoting 652 F. 3d, at 471; brackets omitted).
Respondents try to defend the Third Circuit's ruling by
noting that the FCC has previously discussed ownership di-
versity when considering its ownership rules. They con-
tend that the FCC thus believed that a purpose of those
rules is to promote minority and female ownership. And
because an agency cannot “depart from a prior policy sub
silentio,” FCC v. Fox Television Stations, Inc., 556 U. S. 502,
515 (2009), they argue that the FCC either had to consider
ownership diversity or expressly repudiate its prior policy.
That argument fails because the FCC's ownership rules—
unlike some of its nonownership rules—were never designed
to foster ownership diversity.
From its infancy, the FCC has generally focused on con-
sumers, not producers. The year after it was established,
the agency that would later become the FCC made clear that
“ `emphasis must be frst and foremost on the interest, the
convenience, and the necessity of the listening public, and not
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Thomas, J., concurring
on the interest, convenience, or necessity of the individual
broadcaster
.' ” FCC v. Pottsville Broadcasting Co., 309
U. S. 134, 139, n. 2 (1940) (quoting a 1928 agency document).
The FCC kept true to that design when promulgating
ownership rules. For example, when it created the Newspa-
per/Broadcast Cross-Ownership Rule at issue here, the
agency explained that its “ownership rules rest on two foun-
dations: the twin goals of diversity of viewpoints and eco-
nomic competition,” and that viewpoint diversity is the
“higher” policy. 50 F. C. C. 2d 1046, 1074 (1975); see also 22
F. C. C. 2d 306, 313, ¶25 (1970) (stating that the “principal
purpose” of the Radio/Television Cross-Ownership Rule is
“promot[ing] diversity of viewpoints” and a secondary pur-
pose is “promot[ing] competition”). To these two consumer-
focused goals, the FCC has also added a third: localism. 18
FCC Rcd. 13620, 13624, ¶8, 13645, ¶81 (2003). None of these
objectives advances demographic diversity of owners for the
sake of owners.
To be sure, the FCC has sometimes considered minority
and female ownership of broadcast media when discussing
ownership rules. Time after time, however, it has viewed
those forms of diversity not “as policy goals in and of them-
selves, but as proxies for viewpoint diversity.” 17 FCC Rcd.
18503, 18519, ¶41, and n. 116, 18521, ¶50 (2002); accord, e. g.,
18 FCC Rcd., at 13774, ¶389 (“diversity of ownership pro-
motes diversity of viewpoints”); id., at 13636, ¶51, 13760,
¶355 (similar); 10 FCC Rcd. 2788, ¶¶1–2 (1995) (“promoting
minority ownership of broadcasting and cable television facil-
ities serves to enhance the diversity of viewpoints pre-
sented”). The FCC has also said that ownership diversity
“promote[s] competition.” Id., at 2789, ¶6; accord, 22 F. C.
C. 2d, at 313, ¶25. And although the FCC has occasionally
used language that, read in isolation, could suggest a free-
standing goal of promoting ownership diversity, e. g., 17 FCC
Rcd., at 18521, ¶50 (“[T]he Commission has historically used
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431
Thomas, J., concurring
the ownership rules to foster ownership by diverse groups,
such
as minorities, women and small businesses”), these com-
ments must be viewed in the light of the FCC's repeated
statements that “the core Commission goal [is] maximizing
the diversity of points of view available to the public” and
that “promoting minority [and female] ownership of broad-
casting and cable television facilities serves” this core goal.
E. g., 10 FCC Rcd., at 2788, ¶¶1–2.
Even while trying to abide by the Third Circuit's improper
mandate, the FCC clarifed in this proceeding that it consid-
ered ownership diversity a potential means to pursue view-
point diversity, not a freestanding goal of its ownership
rules. To cite just a few examples, in its 2016 order the
FCC explained that it “has a long history of promulgating
rules and regulations intended to promote diversity of own-
ership among broadcast licensees, and thereby foster a diver-
sity of voices.” App. 335 (emphasis added). It afforded
certain companies waivers from various rules to “serve our
broader goal of diversity of ownership, and thus viewpoint
diversity.” Id., at 337 (emphasis added). And it noted that
it could not promulgate a race-conscious regulation without
frst “demonstrat[ing] a connection between minority owner-
ship and viewpoint diversity” that would “satisfy strict scru-
tiny.” Id., at 397; cf. Metro Broadcasting, Inc. v. FCC, 497
U. S. 547, 566–568 (1990) (upholding race-conscious “minority
ownership policies” because they were “substantially related
to the achievement of . . . broadcast diversity”—i. e., view-
point diversity), overruled by Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 227 (1995) (requiring strict scrutiny for
“all racial classifcations”).
The Third Circuit erred by disregarding this history. For
example, when the FCC modifed its Local Television Owner-
ship Rule in 2003, the court faulted the FCC for “failing to
mention anything about the effect this change would have
on potential minority station owners.” 373 F. 3d, at 420.
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But as with its other ownership rules, the stated “objectives”
for
that rule were fostering viewpoint diversity and competi-
tion. 14 FCC Rcd. 12903, 12910–12912, ¶¶15, 17 (1999).
1
Here, as in 2003, once the FCC determined that none of its
policy objectives for ownership rules—viewpoint diversity,
competition, and localism—justifed 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 own-
ership.” 100 F. C. C. 2d 74, 94, ¶45 (1985). The Third Cir-
cuit had no authority to require the FCC to consider minor-
ity and female ownership. So in future reviews, the FCC is
under no obligation to do so.
2
1
The FCC reiterated these objectives when modifying the rule in 2003.
18 FCC Rcd. 13620, 13708, ¶¶225–226.
2
The FCC has recently questioned the validity of the assumption that
ownership diversity promotes viewpoint diversity. 32 FCC Rcd. 9802,
9810, ¶15, n. 49 (2017). Its previous acceptance of that assumption in no
way precludes the FCC from rejecting it in the future.
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