concurring and dissenting in part:
I agree with the majority that we have jurisdiction to hear this case. I also agree that the limited grandfathering of local marketing agreements (“LMAs”) in the Review of the Commission’s Regulations Governing Television Broadcasting, Report and Order, 14 FCC Red 12903 (1999) (“Local Ownership Order”), is permissible. Therefore I concur in Parts II and IV of the majority opinion. I agree that the amended “television duopoly” rule, as revised to include the “eight voices” exception (the “Local Ownership Rule”), is arbitrary and capricious, therefore I concur in Part III.B. However, I write separately and do not join Part III.A because I would find the Local Ownership Rule arbitrary and capricious for additional reasons. Further, because I believe that section 202(h) of the Telecommunications Act of 1996 mandates that we vacate this arbitrary and capricious Rule and not merely remand it, I dissent from the decision not to vacate.
I.
The Federal Communications Commission (“FCC” or “Commission”) argues that the “eight voices” exception to the duopoly rule is a “reasonable exercise of the Commission’s line-drawing authority.” It claims that the “eight voices” exception ensures the “appropriate level of broadcast diversity,” but also insists that it is unnecessary for it to present substantial evi*170dence that the proposed rule will result in “diversity.” In the absence of evidence, the Commission then ducks for cover under the Supreme Court’s dicta in FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978) (“NCCB”). There the Court observed that diversity and its effects were “elusive concepts, not easily defined.” NCCB, 436 U.S. at 796, 98 S.Ct. at 2113. But that does not mean that the Commission may simply cry “diversity!” and thus avoid meaningful appellate review. Purporting to promote “diversity” does not give the agency a free pass. While it is true that the Commission has “wide discretion to determine where to draw administrative lines,” AT&T Corp. v. FCC, 220 F.3d 607, 627 (D.C.Cir.2000), such discretion is not unfettered — and here there are no meaningful limits to the diversity rationale offered by the Commission. See Majority Op. Part III.A, at 159—162. There is no suggestion as to how much diversity is enough, how much is too little, or how much is too much. As Commissioner Furchtgotb-Roth argued in dissent from the Local Ownership Rule, the “amorphously-defined goal [of diversity], and the assumptions upon which it rests, have not been clearly articulated or supported by empirical facts.” Local Ownership Order, 14 FCC Red 12903, FCC 99-209, at 91 (Aug. 6, 1999). “[A]ll we have here, where the goal of ‘diversity’ in broadcasting is concerned, is an ‘overwhelming hunch.’ ” Id. at 91-92. The FCC offers us only truisms, stating that it has struck the right balance, without explaining why. See id. at 92. The Commission should define its diversity goal, and in doing so explain the distinctions (and interaction) between programming diversity and viewpoint diversity, rather than simply quoting boilerplate on the “elusiveness” of diversity.
Even accepting for the moment that the FCC could regulate in the name of diversity without further elucidating that goal, it must still, at a minimum, explain how its rule furthers the goal of diversity. Here the FCC claims that the duopoly rule, mitigated only by an eight voices exception, is necessary in order to preserve a diversity of viewpoints in.the local market. According to the Commission, the greater the diversity of ownership in a particular area, the less chance there is that a single person or group can have an inordinate effect on public opinion. Further, and critical to the Local Ownership Rule, the Commission’s “concern for ensuring diversity in broadcasting is most pressing at the local level.” Local Ownership Order, ¶ 19 (emphasis added). The Commission concedes that its diversity goal is distinct from its goal of ensuring competition. See id. at ¶ 20. Were the goal merely to preserve competition, then the FCC could readily apply the Department of Jus-tiee/Federal Trade Commission Antitrust Merger Guidelines. It declined to do so, apparently because its “diversity requirements” are a different goal than competition per se. Review of the Commission’s Regulations Governing Television Broadcasting, Further Notice of Proposed Rule Making, 10 FCC Red 3524, ¶ 123 (Jan. 17, 1995). Therefore the FCC must at least make some effort at showing how its Local Ownership Rule furthers diversity in the local market — because it is purporting to regulate to protect local diversity. I do not find that showing in the Commission’s record. Therefore, I do not join Part III.A of the majority opinion.
II.
I concur with the majority in Part III.B regarding the inadequacy of the Commission’s support for its restrictive voice-count provision. I believe, however, that our determination compels vacature of the Lo*171cal Ownership Rule. The FCC argues that in adopting the eight voices exception and the revised duopoly rule, it “decided to act cautiously and alter the rule only slightly.” The Commission also reminds the Court that it will keep monitoring the situation, and “can determine whether its cautionary stance remains warranted or whether the rules can be relaxed further” in the next biennial review. But this rule-making was conducted, in part, pursuant to section 202(h) of the Telecommunications Act of 1996. See Local Ownership Order, ¶ 5 & n.13 (“Section 202 directs the Commission to conduct a biennial review of all of its broadcast ownership rules and to repeal or modify any regulation it determines is no longer in the public interest.... We take such action today in amending our TV duopoly and radio-television cross-ownership rules.”); 1998 Biennial Review, 13 FCC Red 11276, 11280, ¶ 10 (Mar. 13, 1998) (“We believe that our ongoing review of these rules [including the duopoly rule] satisfies the requirements of Section 202(h) of the Telecom Act.”).
As the FCC itself noted in the Second Further Notice of Proposed Rulemaking, the 1996 Act “directs the Commission to undertake significant and far-reaching revisions to its broadcast media ownership rules.” 11 FCC Red 21655, ¶2 (Nov. 7, 1996). Section 202(h) requires that the FCC “shall determine whether any of such rules are necessary in the public interest as the result of competition,” and that the FCC “shall repeal or modify any regulation it determines to be no longer in the public interest.” Pub.L. No. 104-104, 110 Stat. 56 (1996) (emphasis added). In applying that statute, we have squarely considered and rejected the kind of cautionary approach employed by the FCC in adopting the Local Ownership Rule: “The Commission’s wait-and-see approach cannot be squared with its statutory mandate promptly ... to ‘repeal or modify’ any rule that is not ‘necessary in the public interest.’” Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1042 (D.C.Cir.2002). Thus, the question before the FCC was whether the duopoly rule was in the public interest — and to keep the rule it had to determine that the answer was yes. “Although a decision under § 202(h) to retain a rule is similar to an agency’s denial of a petition for rulemaking, the underlying procedures differ in at least one important respect that requires a different approach upon judicial review: Section 202(h) carries with it a presumption in favor of repealing or modifying the ownership rules.” Fox, 280 F.3d at 1048. The FCC, however, seems to have assumed the need for the rule, and then attempted to justify it. But “[h]aving framed the present rulemak-ing proceeding in terms of providing a persuasive rationale for a rule that seemed unnecessary, and having retained that framework, the FCC could not simply assume ... a need for the rule and focus on rebutting specific attacks levied against it. Such review is hardly ‘especially searching.’ ” Radio-Television News Dirs. Ass’n v. FCC, 184 F.3d 872, 886 (D.C.Cir.1999) (internal footnote and citation omitted).
Although the majority acknowledges the “statutory mandate” of section 202(h), Majority Op. at 164, it fails to fully appreciate it. This Court has held that “the mandate of § 202(h) might better be likened to Farragut’s order at the battle of Mobile Bay (‘Damn the torpedoes! Full speed ahead.’) than to the wait-and-see attitude of the Commission.” Fox, 280 F.3d at 1044. While section 202(h) “should not be read to require the court always to vacate a rule improperly retained by the Commission,” id. at 1048, here the Commission “presumably made its best effort” to justify the Local Ownership Rule, id. at 1053, and has come up short. Because the Com*172mission has failed to justify affirmatively the need for any duopoly rule, with or without an eight voices exception, I would vacate the Local Ownership Rule.
III.
As I would invalidate and vacate the duopoly rule on statutory grounds, I would not reach the First Amendment question raised by Sinclair. However, because the majority have opted only to remand, I will briefly express my thoughts on the constitutional questions.
At the outset, I freely concede (as I must) that this Court “is not in a position to reject the scarcity rationale even if we agree that it no longer makes sense.” Fox, 280 F.3d at 1046. The Supreme Court has already “declined to question its continuing validity,” Turner Broad., Inc. v. FCC, 512 U.S. 622, 638, 114 S.Ct. 2445, 2457, 129 L.Ed.2d 497 (1994) (“Turner I”), and “it is not the province of this court to determine when a prior decision of the Supreme Court has outlived its usefulness.” Fox, 280 F.3d at 1046 (citing Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997)). While there may be merit to petitioner’s argument that the “diversity” rationale is essentially content-based, and that therefore heightened scrutiny should be implicated, that argument has been rejected. NCCB, 436 U.S. at 799-800, 98 S.Ct. at 2114-15; Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389-91, 89 S.Ct. 1794, 1806-07, 23 L.Ed.2d 371 (1969); see Fox, 280 F.3d at 1045-46. Therefore, the FCC can effectively prescribe a limit on the amount of speech a person may engage in through broadcast media because a person is prohibited from engaging in more speech (through a second station) if she owns (or programs more than 15% of the content of) another station. Perhaps with now-Chairman Powell’s announcement that the “time has come to reexamine First Amendment jurisprudence as it has been applied to broadcast media and bring it into line with the realities of today’s communications marketplace,” the Supreme Court will take notice. Commissioner Powell, Willful Denial and First Amendment Jurisprudence, Remarks before the Media Institute, Washington D.C. (Apr. 22, 1998), at http ://www.fee.gov/Speeches/Pow-ell/spmkp808.html. That being said, this Court is “stuck with the scarcity doctrine until the day that the Supreme Court tells us that the Red Lion no longer rules the broadcast jungle.” Tribune Co. v. FCC, 133 F.3d 61, 69 (D.C.Cir.1998).
Conclusion
Because I would vacate the Local Ownership Rule, I respectfully dissent from the majority’s remedy.