They ruled that a "diversity index" used by the FCC to weigh cross-ownership (of radio, television and newspapers) employed several "irrational assumptions and inconsistencies." Dissent by Chief Judge Anthony Joseph Scirica noted that the majority were simply employing their own assumptions.
Judges Anthony Joseph Scirica, Thomas L. Ambro and Julio M. Fuentes were present for the case, and commented that normally they would adhere strictly to Federal Rule of Appellate Procedure 18, that the petitioner move first before the agency that would stay its order, but in this case it seemed virtually certain that the FCC would not grant a stay in this matter.
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The dissenting opinion by Chief Judge Anthony Joseph Scirica contested that the majority were simply employing their own assumptions, and that the FCC should be allowed to use its mandated expertise and make adjustments as necessary.
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