The Prometheus Radio Project is an unincorporated organization whose goal is to provide support for the creation of low-power, non-commercial radio stations. Prometheus is represented in this case by the Media Access Project. Under 47 U.S.C. §402(a) and 28 U.S.C. §§2342-2344, litigation regarding FCC orders is filed in the U.S. Court of Appeals.The FCC order in question, Broadcast Ownership Rules, Cross-Ownership of Broadcast Stations of 2002 Biennial Regulatory Review, 68 Fed. Reg. 46,286 (August 5, 2003) (to be codified at 47 C.F.R. pt. 73), eliminates rules against ownership of both newspapers and broadcast outlets or both radio and television outlets in the same market. It also increases the number of television stations a single entity may own in a single market and nationwide. Furthermore, the order changes the way radio stations are counted, for the first time including noncommercial stations when counting the stations in a market for the purpose of computing ownership caps. Prometheus alleges that the order is “arbitrary and capricious in numerous respects” and that the commission violated statutory public notice requirements.
In granting an emergency stay, the Third Circuit applied a four prong test:
1. the movant's likelihood of success on the merits;
2. whether the movant will suffer irreparable harm if the request is denied;
3. whether third parties will be harmed by the stay; and
4. whether granting the stay with serve the public interest.
See, e.g., Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 80 (3d Cir. 1996); In re Penn Cent. Transp. Co., 457 F.2d 381, 384-85 (3d Cir. 1972).
Regarding the first prong, Prometheus asked the court to consider pending Congressional action to overturn the FCC order when assessing the likelihood of success on the merits. The stay order is silent regarding possible Congressional action, simply finding that “it is difficult to predict the likelihood of success on the merits.” On the remaining three prongs, the court finds clearly in favor of Prometheus, finding that harm to the Petitioner and the public from industry consolidation during the appeal would be “widespread and irreversible” and without any adequate remedy. In contrast, the likely harm to the FCC and other interested parties from temporarily maintaining the status quo was not found to be substantial.
For these reasons, the court granted the motion to stay the new ownership rules, pending the resolution of the court's review of the FCC order.