FCC v. Prometheus Radio Project

Summary

The Federal Communications Commission’s 2017 decision to repeal or modify three of its media ownership rules was not arbitrary or capricious for purposes of the Administrative Procedure Act.

Text

PRELIMINARY PRINT 
Volume 592 U. S. Part 2 
Pages 414–432 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
April 1, 2021 
REBECCA A. WOMELDORF 
reporter of decisions 
Page Proof Pending Publication
NOTICE: 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, 
[email protected], of any typographical or other formal errors.

Page Proof Pending Publication
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.

Page Proof Pending Publication
Cite as: 592 U. S. 414 (2021) 415 
Syllabus 
In challenging the FCC's order, Prometheus argues that the Commis-
sion'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,

Page Proof Pending Publication
416 FCC v. PROMETHEUS RADIO PROJECT 
Opinion of the Court 
Cheryl A. Leanza, Brian Wolfman, Andrew Jay Schwartz-
man, 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-
ership 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 repealed two of those rules—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. 
Page Proof Pending Publication

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 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 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). 
Page Proof Pending Publication

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. 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 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— 
particularly cable and Internet—had transformed 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”). 
Page Proof Pending Publication

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. 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 423 
Opinion of the Court 
The APA's arbitrary-and-capricious standard requires that 
agency action be reasonable and reasonably explained. 
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 
Page Proof Pending Publication

424 FCC v. PROMETHEUS RADIO PROJECT 
Opinion of the Court 
Rcd. 8834, 8837 (2006) (soliciting evidence on minority and 
female ownership); In re 2010 Quadrennial 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 
suggesting that eliminating 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 
Page Proof Pending Publication

Cite 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. 
Page Proof Pending Publication

426 FCC v. PROMETHEUS RADIO PROJECT 
Opinion of the Court 
Prometheus also asserts that countervailing—and 
superior—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 unlikely to harm minority and female 
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 explained for purposes of the APA's deferential 
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 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 427 
Opinion of the Court 
at issue here was not likely to harm minority and female 
ownership. 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. 
Page Proof Pending Publication

428 FCC v. PROMETHEUS RADIO PROJECT 
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. 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 429 
Thomas, J., concurring 
cies. Perez v. Mortgage Bankers Assn., 575 U. S. 92, 102 
(2015). 
Disregarding 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 
Page Proof Pending Publication

430 FCC v. PROMETHEUS RADIO PROJECT 
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 
Page Proof Pending Publication

Cite as: 592 U. S. 414 (2021) 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. 
Page Proof Pending Publication

432 FCC v. PROMETHEUS RADIO PROJECT 
Thomas, J., concurring 
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. 
Page Proof Pending Publication

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 592 U. S. Part 2 Pages 414–432 OFFICIAL REPORTS OF THE SUPREME COURT April 1, 2021 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

• #2

  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 Ra…

• #3

  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, …

• #4

  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 Mem…

• #5

  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. Page Proof Pending Publication 418 FCC v. PROMETHEUS RADIO PROJECT Opinion of the Court I…

• #6

  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 …

• #7

  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 P…

• #8

  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 …

• #9

  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 …

• #10

  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 ha…

• #11

  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 late…

• #12

  426 FCC v. PROMETHEUS RADIO PROJECT Opinion of the Court Prometheus also asserts that countervailing—and superior—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 …

• #13

  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…

• #14

  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…

• #15

  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 consi…

• #16

  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 (si…

• #17

  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 disregardi…