by Danielle Resheff*

The Eighth Circuit’s recent decision in Zimmer Radio of Mid-Missouri Inc. v. FCC provides a crucial opportunity to advocate for a nuanced and targeted approach to media regulation—one that rejects outdated restrictions like the Federal Communications Commission’s (“FCC”) “Top-Four Prohibition” without embracing wholesale abandonment of structural safeguards. While the Eighth Circuit correctly identified that the FCC’s rules fail to account for the competitive realities of modern media—such as multicast streaming—this finding should not be misconstrued as a mandate for complete deregulation of television ownership limits—such as the national audience cap. This Contribution argues that abandoning the long-standing 39 percent national audience cap, a rule designed to prevent excessive media consolidation and protect localism, would be a dangerous overcorrection. Instead of a deregulatory race to the bottom, the Zimmer Radio decision compels a more sophisticated path: one that modernizes the rules to reflect technological advancements, like multicast streaming, while steadfastly retaining foundational regulations that ensure the continued viability of diverse, local new broadcasting operations. This approach acknowledges that a healthy media ecosystem requires both the flexibility to innovate and the structural limitations necessary to protect the public interest.

The Administrative Procedure Act (“APA”) directs reviewing courts to “hold unlawful and set aside” agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”1 This standard requires agencies to engage in reasoned decision-making supported by evidence in the record.2 Section 202(h) of the Telecommunications Act of 1966 is the statutory mechanism that ensures the Federal Communications Commission (“FCC”) continues to satisfy the APA’s reasoned decision-making requirement.3 Section 202(h) requires the FCC to review its media ownership rules every four years to determine whether they are still “necessary in the public interest as the result of competition” and to repeal or modify rules it no longer deems to be in the public interest.4 In FCC v. Prometheus Radio Project, the Supreme Court reaffirmed that Section 202(h) establishes an “iterative process” which ensures structural television ownership regulations do not persist simply through inertia, but must continue to be supported by current evidence concerning competition, diversity, and localism.5

The Communications Act of 1934 requires the FCC to regulate broadcast ownership in accordance with “the public interest, convenience, and necessity,” a standard that has historically been understood to advance three interrelated goals: competition, diversity, and localism.6 As reaffirmed in Prometheus Radio Project, these objectives continue to guide the review of structural ownership limits under Section 202(h).7 “Competition” refers to preserving multiple independent outlets capable of supplying local news and participating in advertising markets, thereby preventing any single broadcaster or station group from dominating the marketplace.8 “Diversity” encompasses viewpoint diversity, outlet diversity, and ownership diversity, and is aimed at ensuring a multiplicity of editorial voices and preventing excessive concentration of control.9 “Localism” requires that broadcasters maintain programming responsive to the needs, interests, and perspectives of the specific communities they serve, rather than homogenizing content across markets.10 These longstanding public interest principles supply the analytical framework through which any proposed modification to media-ownership rules, including the national audience cap rule to prevent excessive media consolidation, must be evaluated.

Against this analytical framework requiring the FCC to justify changes to existing ownership rules through reasoned decisionmaking grounded in the rulemaking record, the Eighth Circuit in Zimmer Radio of Mid-Missouri, Inc. v. FCC struck down the FCC’s “Top-Four Prohibition,” an FCC rule barring any single media company from owning more than one of the four highest-rated broadcast television stations in any given local market.11 In the 2023 Quadrennial Review (“2023 Order”), the FCC decided to retain the Top-Four Prohibition.12The court concluded that in the 2023 Order, the FCC’s reliance on a record riddled with stale and inadequate evidence could not satisfy the APA or the Section 202(h) standard.13 Much of the evidentiary submissions the FCC relied on during the 2023 Quadrennial Review were decades old.14 For example, one of the sources cited for the proposition that the top four15 stations are most likely to originate local news was a 22-year-old report citing an even more outdated study.16 The Zimmer Radio court correctly noted that this study “alone [was] insufficient to justify the FCC’s decision [to maintain the Top-Four Prohibition], particularly where [S]ection 202(h) was intended in part to ‘ensure that the FCC’s ownership rules do not remain in place simply through inertia.’”17 Accordingly, the court found that the FCC acted arbitrarily and capriciously when it retained the Top-Four Prohibition portion of the television ownership rule.18

The Zimmer Radio court also addressed the FCC’s expansion of “Note 11,” which prohibits media entities from acquiring the network affiliation of another network—or, the right to broadcast that network’s programming on a station in the local market—if doing so would result in the media entity owning two top-four stations in the same local market.19 The 2023 Order expanded Note 11 to apply to multicast streams and low-power television stations, which had previously been excluded from the scope of the rule.20 Multicast streams are multiple programming streams offered on a single station.21 Low-power television stations provide programming tailored to the interests of viewers in small, localized regions in a cheaper, more flexible way than traditional full-power stations.22 Before 2023, the FCC did not explicitly include multicast streams or low-power stations within the reach of Note 11 because neither category held sufficient market influence or full-power reach that historically justified such ownership restrictions.23 The FCC treated them as supplemental distribution mechanisms rather than primary competitors in local news and advertising markets.24 In reviewing the amendment expanding Note 11 to cover multicast streams and low-power stations, the Eighth Circuit held that the FCC had once more exceeded its statutory authority under Section 202(h) because the agency lacked power to modify a rule it had already determined to be “necessary in the public interest.”25 As the court explained, Section 202(h) authorizes the FCC to “repeal and modify” an ownership rule only when the agency determines that the rule is no longer “necessary in the public interest.”26 Since the FCC had affirmatively concluded in the 2023 Order that Note 11 remained necessary, the agency lacked statutory authority to modify the rule’s scope to include multicast streams and low-power stations.27 Taken together, Zimmer Radio’s assessment of the Top-Four Prohibition and Note 11 imposed two restraints on future FCC actions: enhanced scrutiny for contemporaneous evidence under the APA during quadrennial reviews and broader caution against agency overreach beyond statutory limits.

Although the Eighth Circuit was correct to both strike down the outdated Top-Four Prohibition as arbitrary and capricious and limit the FCC’s authority under Note 11, those holdings do not justify extending a deregulatory push to the national audience cap absent contemporary, evidence-based justification. While Zimmer Radio illustrates how a deregulatory presumption can cabin the FCC’s authority when rules lack current evidentiary support, the decision does not license the FCC to dismantle all structural ownership limits wholesale.

Zimmer Radio properly read demands that the FCC abandon rules unsupported by contemporary evidence, such as the Top-Four Prohibition, which no longer reflect market realities and thus run counter to the FFC’s public interest mandate.28 As critics of the 2023 Order pointed out, the rapid growth of streaming platforms, multicast signals, and digital distribution has eroded the rationale for restricting co-ownership among the top four broadcasters in a given market.29 The logic of the Top-Four Prohibition assumed that a small handful of full-power stations dominated local television markets and served as the primary outlets for local news and entertainment.30 However, broadcasters and trade organizations have emphasized that digital streaming services, cable channels, and multicast subchannels now command significant shares of audience attention and advertising revenue, fragmenting viewership across dozens of competing outlets.31 Therefore, prohibiting consolidation among the top four local stations no longer meaningfully preserves competition or viewpoint diversity, since local broadcasters are now competing not only with one another, but with an array of unregulated digital distributors.32 Yet, while Zimmer Radio rightly struck down an outdated restriction, its reasoning does not license dismantling essential ownership safeguards like the national audience cap.

The FCC’s history of enforcing the Top-Four Prohibition underscores its struggle to keep multiple ownership rules in step with modernization. When the FCC first extended the Top-Four Prohibition to include multicast streamers and low-power television stations, the restrictions treated secondary, multicast channels that accumulated significant viewership among their different streams as if they were full-power primary stations equivalent to traditional “Top Four” stations, i.e., ABC, CBS, NBC, and Fox.33 That meant the FCC counted a multicast subchannel with strong ratings as if it were a Top Four full-power station, even though multicast streams lack the coverage area, audience share, and historical regulatory treatment of traditional Top Four affiliates. Recognizing that this application was impractical and risked undermining the development of innovative programming, the FCC made what the Eighth Circuit considered a “last-ditch effort” to make the Top-Four Prohibition work in modern practice by repeatedly granting waivers authorizing top-four combinations to remain.34 The Top-Four Prohibition contained a waiver process if an applicant could show that an exception to the rule would “serve the public interest, convenience, and necessity.”35 For example, in 2018 the FCC approved the acquisition of Raycom Media by Gray Television and granted waivers for combinations involving top-four network affiliations across multicast and low-power streams in several smaller markets, citing “the unique facts and circumstances of the stations at issue” and the need to preserve local news operations.36 Similarly, in 2019 the FCC allowed Gray Television to acquire additional top four affiliated multicast streams, emphasizing that a strict application of the rule would frustrate local service and therefore be a disservice to the public interest.37 This pattern demonstrates that the updated rule did not reflect competitive or technological realities; the rule was effectively unworkable in practice and demanded overreliance on waivers. To put it simply, “[t]he FCC cannot save an irrational rule by tacking on a waiver procedure.”38

Even though the Top-Four Prohibition itself is outdated, Zimmer Radio does not compel a complete deregulation of media ownership. In fact, the FCC’s ongoing review of the national audience reach cap illustrates why a cautious, evidence-driven approach to deregulation is essential. The current national audience cap—currently set at 39 percent—is an FCC rule preventing any single broadcaster from reaching more than 39 percent of U.S. television households.39 The national audience cap was enacted to prevent any single broadcaster from accumulating enough nationwide reach to exert disproportionate influence over local news, homogenize editorial content, or distort advertising markets.40 The current 39 percent cap resulted from a compromise struck in 2003 between Congress and President George W. Bush following a Republican-led FCC vote to raise the cap from 35 to 45 percent.41 In 2023 Brendan Carr, then-FCC Commissioner and current FCC Chairman, dissented when the Democrat-controlled FCC upheld and bolstered its restrictions on television ownership.42 Carr has since publicly indicated the agency’s intent to modernize broadcast ownership rules by opening a new docket titled “In re: Delete, Delete, Delete,” whereby the agency “seeks comment on every rule, regulation, or guidance document that the FCC should eliminate for the purposes of alleviating unnecessary regulatory burdens.”43 In fact, earlier this year, the FCC announced plans to “refresh the record” on the national audience cap, acknowledging that the prior comment period closed more than seven years ago and seeking updated public input on whether the 39 percent limit should be modified, retained, or eliminated altogether.44 Carr has emphasized that the FCC’s review will account for recent judicial decisions, and has even described the Zimmer Radio ruling as evidence of “the deregulatory intent that Congress had when it set the FCC down on this path of the Quadrennial reviews.”45 Contrary to Carr’s conception, however, eliminating the 39 percent cap would not modernize broadcast regulation but instead invert the purpose of Section 202(h) and dismantle one of the few remaining safeguards that ensures diverse, community-based news survives in a nationalized and consolidated media market.

Broadcasters have urged the FCC to consider their view that the national cap presents an artificial limit that constrains their ability to compete with “Big Tech.”46 The National Association of Broadcasters has argued that with Google, Facebook, and Amazon dominating advertising markets and streaming platforms and reaching nearly every U.S. household with scant regulation, broadcasters contend that expanding beyond 39 percent is necessary to remain viable competitors beyond 39 percent to survive the competitive market and to “better serve the public interest.”47 Major broadcast entities echoed these claims, including Sinclair Broadcast Group, which warned that broadcasters are essentially competing against their unregulated rivals with their “hands tied behind [their] backs.”48 As such, seventy-three congressional members signed a 2025 letter to FCC Chairman Carr supporting a review of the cap, contending that raising the threshold would help sustain local journalism in smaller markets.49 Taken together, the combined pressures of digital advertising dominance, declining linear viewership, and shrinking local advertising markets underscore why eliminating the national audience cap without robust, contemporary evidence would contradict Section 202(h)’s requirement of reasoned, public interest-oriented regulation rather than advance it.

FCC Chairman Carr’s and major broadcasters’ arguments use flawed logic to cloak deregulation in the language of localism and diversity. Simply raising or eliminating the audience cap absent new evidence would replicate the very defects that doomed the Top-Four Prohibition in Zimmer Radio. In reality, consolidation at the national level has historically reduced newsroom resources and homogenized coverage across markets.50 As media scholars and public interest organizations have recognized, larger station groups tend to centralize editorial decisions and syndicate content, diminishing viewpoint diversity.51 While broadcasters do face genuine economic pressures from Big Tech,52 lowering or eliminating the ownership cap would primarily enhance bargaining leverage for conglomerates rather than directly support local reporting.53

Weakening or eliminating the national audience cap could also increase the risk that large station groups could respond to political or regulatory pressure in ways that suppress local viewpoints at scale. Recent events underscore how excessive consolidation and weak regulatory safeguards can enable the precise viewpoint suppression that the First Amendment and other foundational democratic principles are meant to prevent. In September 2025, following talk show host Jimmy Kimmel’s monologue criticizing right-wing reactions to the killing of conservative activist Charlie Kirk, Chairman Carr publicly threatened to review ABC’s broadcast licenses, warning Disney—ABC’s parent company—that, “[W]e can do this the easy way or the hard way.”54 Within hours, ABC suspended Kimmel’s show, while two of the nation’s largest station groups, Nexstar Media Group and Sinclair Broadcast Group, announced they would preempt the program across more than seventy affiliates, removing the show from roughly one-quarter of U.S. television markets.55 Both conglomerates were simultaneously seeking FCC approval for major transactions—Nexstar’s proposed $6.2 billion merger with Tegna, another station group, and Sinclair’s push to commercialize ATSC 3.0 transmission technology—giving them both additional incentive to appease Chairman Carr’s demands.56 Though Carr’s remarks did not constitute formal agency action, commentators noted how such “jawboning” leveraged his implicit threat of license review to chill protected expression by Kimmel.57 This sequence of events illustrates how concentrated ownership and an emboldened regulator can combine to produce censorship at scale, eroding the diversity and localism the Communications Act was designed to preserve. If the cap were removed, conglomerates controlling a larger share of affiliates could carry out such politically driven content removals on a national scale. Thus, removing the national audience cap could sharply increase the risk that political pressure could reverberate across consolidated station groups, undermining the very diversity and local autonomy that ownership limits were designed to protect.

The national audience cap remains a critical safeguard for public interest objectives and thus removing it absent compelling novel evidence would be arbitrary and capricious under the APA. Excessive consolidation of station groups at the national level risks diminishing local news coverage, reducing diversity of viewpoints, and consolidating economic power in a handful of corporate owners.58 An expansive deregulatory mandate could give the FCC nearly boundless discretion to reshape the broadcast landscape without adequate safeguards. As such, the national audience cap should not be relaxed without compelling evidence that consolidation will not harm competition, localism, or diversity. Future courts, and the present FCC, should not interpret Zimmer Radio to signal the end of media ownership regulation. On the contrary, the Eighth Circuit’s reasoning simply directs courts to continue to take heed of the 17 years of precedent interpreting Section 202(h)’s mandate as a balance between a deregulatory presumption and reasoned decision-making.59 Courts should ensure the FCC continues to thoughtfully update outdated regulations while preserving essential safeguards, like the 39 percent cap, in order to protect diversity, localism, and the competition intended to be protected by Section 202(h) of the Telecommunications Act of 1996.

* Danielle Resheff is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem at the National Telecommunications and Technology Moot Court Competition hosted by Catholic University Law School. One of the questions presented was whether a decision to deny an assignment of license application of an entity with one traditional Top Four station and one top four multicast station was arbitrary and capricious. This Contribution distills one side of the argument by analyzing the Eight Circuit case that the competition question was based on. The views expressed herein do not necessarily represent the author’s views.

1. 5 U.S.C. § 706(2)(A) (authorizing courts to set aside agency action that is arbitrary, capricious, or otherwise not in accordance with law).

2. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

3. Telecommunications Act of 1996, Pub. L. No. 104-104, § 202(h), 110 Stat. 56, 111-12 (codified as amended at 47 U.S.C. § 303).

4. Id.

5. FCC v. Prometheus Radio Proj., 592 U.S. 414, 419–20 (2021); see also 47 U.S.C. §§ 303, 309(a).

6. Id.

7. See Prometheus, 592 U.S. at 419–20 (“Soon after Section 202(h) was enacted, the FCC stated that the agency’s traditional public interest goals of promoting competition, localism, and viewpoint diversity would inform its Section 202(h) analyses.”).

8. See 2002 Biennial Regulatory Review—Review of the Comm’n’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecomms. Act of 1996, 18 FCC Rcd. 13,620, 13,640 (2003) (explaining that competitive market structures provide consumers with greater choice, lower prices, and innovation, and that regulators must accurately identify structures that permit vigorous competition).

9. Id. at 13,628–38.

10. Id. at 13,644–45.

11. Zimmer Radio of Mid-Missouri, Inc. v. FCC, 145 F.4th 828, 857 (8th Cir. 2025); see also 47 C.F.R. § 73.3555(b)(1)(ii) (2025) (explaining the Top-Four Prohibition). The Eighth Circuit also ruled on the Local Radio Ownership Rule but found there that the FCC’s analysis was reasonable and therefore would pass arbitrary-and-capricious review. See Zimmer Radio, 145 F.4th at 851–53.

12. 38 FCC Rcd. 12782, 12835–37 (2023) (“2023 Order”).

13. See Zimmer Radio, 145 F.4th at 854–58.

14. Id.

15. This Contribution uses “Top Four” to refer to the four major national broadcast networks (ABC, CBS, NBC, Fox) and “top four” to refer to the four highest-rated stations within a Designated Market Area, regardless of network affiliation.

16. Zimmer Radio, 145 F.4th at 855–56.

17. Id. at 856 (citing Prometheus, 592 U.S. at 419).

18. Id. at 839–40.

19. 47 C.F.R. § 73.3555.

20. See 47 C.F.R. § 74.732(b) (2025); see also FCC Adopts 2018 Quadrennial Rev. of Broad. Ownership Rules, 38 FCC Rcd. 12782, 12835–37 (2023) (“2023 Order”).

21. See 2023 Order, 38 FCC Rcd. at 12836.

22. Low Power Television Service, Fed. Commc’ns Comm’n (Dec. 9, 2019), https://www.fcc.gov/consumers/guides/low-power-television-lptv-service.

23. See 2023 Order, 38 FCC Rcd. 12782, 12835–37.

24. Id.

25. Zimmer Radio, 145 F.4th at 859–60.

26. 47 U.S.C. § 303.

27. Zimmer Radio, 145 F.4th at 859–60.

28. Id. at 854–58.

29. See, e.g., Comments of Fox Corporation, NBCUniversal Media, LLC, and Paramount Global on 2022 Quadrennial Regulatory Review (MB Docket No. 22-459) (Mar. 3, 2023); Reply Comments of the National Association of Broadcasters on 2018 Quadrennial Regulatory Review (MB Docket No. 18-349) (Oct. 1, 2021); Comments of Heritage Broadcasting of Michigan on 2018 Quadrennial Regulatory Review (MB Docket No. 18-349) (Sept. 2, 2021).

30. See 2023 Order, 38 FCC Rcd. at 12828.

31. See Reply Comments of the National Association of Broadcasters, supra note 29.

32. See Comments of Fox Corporation, NBCUniversal Media, LLC, and Paramount Global, supra note 29; Reply Comments of the National Association of Broadcasters, supra note 29.

33. See 2023 Order, 38 FCC Rcd. at 12820, 12836–37.

34. Zimmer Radio, 145 F.4th at 856.

35. 47 C.F.R. § 73.3555(b)(2).

36. See Transfer Control of License Subsidiaries of Raycom Media, Inc. et al., 33 FCC LEXIS 3785 (2018).

37. See Red River Broad. & Gray Television Licensee, LLC, 34 FCC Rcd. 8590, 8596–97 (2019).

38. Zimmer Radio, 145 F.4th at 856 (quoting ALLTEL Corp. v. FCC, 838 F.2d 551, 561 (D.C. Cir. 1988)).

39. 47 C.F.R. § 73.3555(e).

40. See 2002 Biennial Regulatory Review—Review of the Comm’n’s Broadcast Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the Telecomms. Act of 1996, 18 FCC Rcd. 13,620, 13,672–73 (2003) (explaining that limits on national television ownership prevent any single firm from exerting outsized influence over local news production, homogenizing programming across markets, and distorting advertising competition).

41. Congress Reach Compromise on FCC Rule, PBS News Hour (Nov. 25, 2003), https://www.pbs.org/newshour/nation/media-july-dec03-fcc-compromise_11-25.

42. Dissenting Statement of Commissioner Brendan Carr, FCC Adopts 2018 Quadrennial Rev. of Broad, 38 FCC Rcd. 12782 (2023) (MB Docket No. 18-349).

43. Press Release, Office of FCC Chairman Brendan Carr, FCC Chairman Carr Launches Massive Deregulation Initiative: FCC Opens “In re: Delete, Delete, Delete” Docket (Mar. 12, 2025), https://docs.fcc.gov/public/attachments/DA-25-219A1.pdf.

44. Media Bureau Seeks to Refresh the Record on National TV Ownership Cap, DA 25-530 (June 18, 2025), https://docs.fcc.gov/public/attachments/DA-25-530A1.pdf.

45. George Winslow, Carr Says FCC’s 2022 Quadrennial Ownership Review ‘Will Be Inspired’ by Court Ruling Eliminating Some Ownership Rules, TV Tech. (July 24, 2025), https://www.tvtechnology.com/news/carr-says-fccs-2022-quadrennial-ownership-review-will-be-inspired-by-court-ruling-eliminating-some-ownership-rules.

46. George Winslow, Broad Coalition of Broadcasters Urge FCC to Eliminate National TV Ownership Cap, TV Tech. (Aug. 22, 2025), https://www.tvtechnology.com/news/broad-coalition-of-broadcasters-urge-fcc-to-eliminate-national-tv-ownership-cap.

47. National Association of Broadcasters, Comment Letter on Proposed Media Bureau Opens Docket for National TV Multiple Ownership Rule (Apr. 2, 2025), https://www.blog.nab.org/wp-content/uploads/2025/04/2025-National-TV-Ownership-UHF-Discount-Update-to-Record.pdf.

48. See Comments of Sinclair, Inc., GN Docket 25-133, 4 (Apr. 11, 2025); see also Comments of Nexstar Broad., Inc., MB Docket No. 17-318, at 12–25 (Mar. 19, 2018); Reply Comments of Univision Commc’n Inc., MB Docket No. 17-318, at 1–6 (Apr. 18, 2018); Comments of Sinclair Broad. Group, Inc., MB Docket No. 17-318, at 6–17 (Mar. 19, 2018).

49. Letter from Members of Congress to Brendan Carr, Chairman, Fed. Commc’ns Comm’n (Mar. 28, 2025).

50. See Gregory J. Martin & Joshua McCrain, Local News and National Politics, 113 Am. Pol. Sci. Rev. 372 (2019) (finding that, after Sinclair acquired local TV stations, news programs shifted from locally focused coverage toward more nationally oriented, ideologically conservative content, with modest viewership losses); Amy Merrick, How Media Consolidation Affects the News You See, Chi. Booth Rev. (Mar. 4, 2025), https://www.chicagobooth.edu/review/how-media-consolidation-affects-news-you-see (reporting that the three largest station groups now control more than 40% of local TV news stations and summarizing research showing that, in some cases, stations acquired by large groups shifted away from locally focused reporting toward more nationally shareable content); see also Katie Gilbert, Remote Control: How Consolidation Is Changing Local TV News, Stan. GSB Insights (Dec. 11, 2024), https://www.gsb.stanford.edu/insights/remote-control-how-consolidation-changing-local-tv-news.

51. See Martin & McCrain, supra note 50 at 373–74 (finding that large station groups impose centrally produced segments that reduce locally generated content and homogenize coverage across markets); Reply Comments of Free Press, 2014 Quadrennial Regulatory Review, MB Docket No, 14-50, at 6–7, 17–18 (Sept. 8, 2014) (explaining that large station groups use shared services agreements to take over news operations and exercise central control over programming and newsroom decisions, reducing independent local viewpoints).

52. BIA Advisory Services & National Association of Broadcasters, Economic Impact of Big Tech Platforms on Local Broadcast News 3 (2021).

53. Furthermore, Chairman Carr’s use of public interest authority to investigate broadcasters for reporting news disfavored by President Donald Trump illustrates the potential for regulatory power to be misapplied in ways that undermine journalistic independence. See James B. Speta, The FCC Lacks Authority to Punish Broadcasters for Their Viewpoints, 42 Yale J. Reg. Bull. 185, 188 (Sept. 26, 2025) (noting that Carr and the FCC are seeking to use the “‘public interest’ standard” to penalize broadcasters for speech disfavored by the President).

54. Brian Stelter, How Brenan Carr, the Attach-Dog FCC Chair, Helped Take Down Jimmy Kimmel with Words, Not Actions, CNN Bus. (Sept. 18, 2025), https://www.cnn.com/2025/09/18/media/brendan-carr-jimmy-kimmel-fcc-first-amendment.

55. Faith Wardwell, Nexstar, Joining Sinclair, Will Preempt Jimmy Kimmel’s Late-Night Show, Politico (Sept. 23, 2025), https://www.politico.com/news/2025/09/23/jimmy-kimmel-return-preempt-nexstar-00576320 (using “preempt” in the broadcast sense of removing a scheduled program from the lineup and substituting other content).

56. See Michael Schneider, Nexstar and Sinclair vs. Jimmy Kimmel: Networks and Affiliates Battle, Variety (Oct. 2, 2025), https://variety.com/2025/tv/news/nexstar-sinclair-jimmy-kimmel-networks-affiliates-battle-1236537252/.

57. Stelter, supra note 54 (quoting Jawboning and Jimmy Kimmel, The Free Press (Sept. 18, 2025), https://www.thefp.com/p/jawboning-and-jimmy-kimmel-free-speech-censorship (describing Carr’s conduct as “jawboning,” i.e., using threats to compel private action)).

58. See generally Penelope Muse Abernathy, News Deserts and Ghost Newspapers: Will Local News Survive? (2020).

59. Because the Third Circuit decided all four Prometheus cases interpreting Section 202(h), its framework has defined the modern doctrine. The Eighth Circuit’s reasoning in Zimmer Radio engages directly with that precedent, reaffirming the statute’s balance between a deregulatory presumption and evidence-based justification for ownership rules. See Prometheus Radio Proj. v. FCC, 373 F.3d 372 (3d Cir. 2004); Prometheus Radio Proj. v. FCC, 652 F.3d 431 (3d Cir. 2011); Prometheus Radio Proj. v. FCC, 824 F.3d 33 (3d Cir. 2019); Prometheus Radio Proj. v. FCC, 939 F.3d 567 (3d Cir. 2019); Prometheus Radio Proj. v. FCC, 592 U.S. 414, 419–20 (2021).