NAB: FCC 'Sat on Its Hands' on 2018 Quadrennial Review
The FCC hasn’t made an effort to meet the four-year due date for its 2018 quadrennial review, and its arguments that Congress didn’t specify a deadline (see 2308080062) are “a recipe for eternal stasis” and would “justify perpetual delay,” said NAB in a response filing in its mandamus proceeding at the U.S. Court of Appeals for the D.C. Circuit (docket 23-1120) (see 2304250029). “It is unreasonable for the Commission to have sat on its hands for years.”
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NAB asked the court to compel the agency to act on the 2018 QR, but the FCC is considered already headed in that direction. The agency is expected to have a full slate of commissioners by the fall (see 2307280074), and numerous broadcasters and industry officials on both sides of broadcast ownership issues said they expect the 2018 QR to be one of the first things a five-person FCC takes up (see 2306020056).
Cheryl Leanza, who represents the United Church of Christ Media Justice Ministry, said it’s not clear what NAB gains from pursuing the mandamus. The FCC “has a fair amount of latitude on how it allocates its resources” and petitions for mandamus are generally viewed as long shots, said Leanza, a frequent NAB opponent on broadcast ownership matters. Mandamus “is an extremely high bar,” she said. NAB filed its petition in April, but Anna Gomez wasn't nominated to the FCC until May, noted Rob Folliard, Gray Television senior vice president-government relations and distribution. Even if the court rejects the mandamus petition, the legal action further encourages swift action on the 2018 QR, he said. That’s important because the agency repeatedly delayed acting on QR for almost the entire history of the requirement, Folliard said.
NAB’s filing Wednesday rejects arguments that the lack of a fifth commissioner is a legitimate reason for the QR’s delay. “The Commission cannot know there is partisan deadlock because it has not even circulated a proposed order for consideration,” said the trade group. “Moreover, the assumption that Commissioners would vote a certain way based on nothing more than their political party is a dangerous concept that should not be credited by this Court.”
The D.C. Circuit should also discount FCC arguments that the delay is merited by the complexity of the issues or the litigation before the U.S. Supreme Court on the 2018 QR, NAB said. Since SCOTUS upheld the FCC’s order, the agency “merely needed to pick up where it left off,” NAB said. When the agency refreshed the 2018 QR record in 2021 after the SCOTUS decision, it received 38 comments in the docket, but in 2015 the FCC was able to issue a net neutrality order less than a year after receiving 3.7 million comments, NAB said. “This timeline for an elective action shows that the Commission has no excuse for not concluding its mandatory 2018 review in a timely manner.” The rapid changes in the media marketplace are “no defense for a snail’s pace,” NAB said. “It is the very reason why delay is egregious.”
The FCC’s filing last week promising it wouldn’t jump the 2022 QR ahead of the 2018 version also didn’t mollify the broadcasters, according to Wednesday’s filing. “What the Commission has not said is far more compelling: it has offered this Court no update on the timing of the 2018 review,” said NAB. The FCC “is not even willing to say that anyone is actually working on the 2018 review.” The FCC declined to comment. “Absent mandamus, nothing is stopping the Commission from refreshing the record in the 2018 proceeding once again, at the expense of concluding not just the 2018 review but also the 2022 review,” said NAB.