Action on Quadrennial Ownership Review Not Expected in 2019
The FCC isn’t expected to issue a 2018 quadrennial ownership review order this year, and many broadcasters aren’t betting on quick movement on that issue, licensees and broadcast attorneys told us. Broadcasters “weren’t ever holding their breath” waiting for the radio ownership deregulation and possible changes to top-four ownership restrictions that might have been expected in a 2018 QR order, said Fletcher Heald broadcast attorney Anne Crump. The FCC didn’t comment.
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It’s not clear how or when the 3rd U.S. Circuit Court of Appeals will rule on the FCC’s en banc appeal (see 1911070067) of a three-judge panel's striking down its ownership rules, and most broadcast lawyers and licensees said the agency would need to know the ultimate fate of those rules to proceed with the 2018 review. Since the 3rd Circuit’s ruling sets requirements for new FCC ownership rules, the appeal's outcome could affect the legal standard new rules are held to, said Benton Institute for Broadband and Society Senior Counselor Andrew Schwartzman.
Broadcast attorney Dennis Kelly said it’s technically possible for the FCC to issue orders on the affected ownership rules while the appeal is pending, but several attorneys and industry officials said that’s unlikely. The FCC would need to issue a further notice seeking information about the impact of the Prometheus decision on the proposals in the 2018 Quadrennial Review and possibly develop new proposals, since most would be invalid under the Prometheus ruling, said United Church of Christ lawyer Cheryl Leanza, who represented Prometheus against the FCC in the 3rd Circuit.
A 3rd Circuit decision to reject the FCC’s appeal outright could be issued relatively quickly, in the next few weeks, but agency officials, including FCC Commissioner Mike O'Rielly signaled such a rejection could be followed by an attempt to seek a writ of certiorari at the U.S. Supreme Court, which could be an uncertain and time-consuming process, lawyers said. If the en banc panel doesn’t immediately reject the FCC’s appeal and instead takes it up or seeks additional filings, the appeal process could last well into 2020, attorneys said. The upcoming election year and the traditional slowdown of federal agencies as the end of the year approaches are also likely to affect action on the matter, a broadcaster said.
Lack of clarity about the fate of broadcast ownership rules created uncertainty for TV and radio stations, but few are waiting on new rules to act, said Crump. While many radio broadcasters would like to take advantage of relaxed ownership rules, it wasn’t clear how the FCC would proceed on that issue even before the court’s ruling, several lawyers said.
The resurrection of rules preventing newspaper and TV station co-ownership and making joint sales agreements attributable isn’t the end of the world because licensees long operated under those restrictions, said Heartland Media CEO Robert Prather. “That’s the world we lived in for years.”