FCC Expected to Reject Slew of Challenges to TV License Renewals
The FCC is unlikely to grant petitions to deny TV license renewals to 28 stations in 3 markets if recent history is any guide, said a lawyer for groups asking the FCC to act based on claims the broadcasters aired little local political news (CD Dec 27 p6). In the latest petition to deny, Ore. Alliance to Reform Media asked the Media Bureau to designate licenses of 8 stations in and around Portland, Ore., for a hearing before an administrative law judge. The FCC hasn’t taken that step for at least a decade, said attorney Andrew Schwartzman. If the bureau decided a petition merited a hearing, it would likely seek a vote of the full Commission, even though it could act under delegated authority, he said: “Hearing designations are so rare that if the bureau found merit to consider designating a hearing, they would almost certainly bounce it to the full Commission.”
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Petitions to deny filed by Schwartzman’s firm may eventually wind up in court, he said: “I think it is highly unlikely that the Commission under present management would designate a hearing. We brought this case with a recognition that we might have to take it to court.” The Alliance could file suit against the Commission in the U.S. Appeals Court, D.C., if the petition was denied, said Schwartzman; No decision has been made. Schwartzman is representing groups that seek to deny renewals for 20 TV stations in Chicago and Milwaukee. The FCC hasn’t acted on those requests since they were filed in Nov. 2005, said Schwartzman.
The Commission hasn’t acted on petitions concerning 9 other TV stations, said Angela Campbell, a fellow at Georgetown U.’s Institute for Public Representation. “A lot of these are sort of just languishing at the Commission, so it doesn’t seem to be doing a whole lot of good,” she said: “Licensees only come up every 8 years, so you don’t have a lot of opportunities to file petitions to deny.” Campbell filed the oldest of her complaints in Sept. 2004, against WDCA D.C. and WPXW Manassas, Va. The stations failed to air the required 3 hours weekly of educational kids’ programming, the United Church of Christ alleged. Stations can operate without having their licenses renewed, Schwartzman said. Several hundred additional stations haven’t gotten renewals because of pending indecency complaints, industry lawyers and analysts estimate.
Third Coast Press’s opposition to license renewals for 18 stations in the Chicago market was acted on by the bureau 13-1/2 months after it was filed. On Dec. 13, it denied the petition -- without renewing the licenses -- saying the Press didn’t make a convincing case that the stations had failed to serve the public interest by airing news on celebrities instead of more substantive subjects. The denial highlighted constitutional issues in regulating news. “The allegations raised fall within the editorial discretion vested in licensees by the Communications Act of 1934 and by Commission and court precedent,” the bureau said: “Editorial discretion in the presentation of news and public opinion is the core concept of the First Amendment’s Free Press guarantee, [so] the Commission has very little authority to interfere.” Media Bureau officials couldn’t be reached to discuss how the Constitution affects license reviews.
A license denial based on news coverage could raise First Amendment concerns. “It would be unprecedented for the FCC to reject a license renewal based on election coverage,” said Dennis Wharton, NAB exec. vp. Much programming has constitutional protections, though news doesn’t necessarily have more, lawyer Robert Corn-Revere said: “Any time the FCC would base a licensing decision on its evaluation of program content, it would necessarily raise First Amendment issues. The FCC has frequently said that it will treat the area of news as a more sensitive issue.” The agency has shown it has authority, however limited, to regulate content by requiring TV stations to air kids programming, Campbell said.
Requests to deny licenses in Chicago, Milwaukee and Portland have merit because the FCC has said it would take marketplace failures into account, contends Schwartzman. The Commission made the comments in the early 1980s when it instituted so-called postcard license renewals streamlining the process, said Campbell and Schwartzman. “This isn’t something new,” Schwartzman said: “We're really trying to get the Commission to live up to its commitments from 22 years ago.”