FCC proceedings on petitions to pre-empt North Carolina and Tennessee laws on municipal broadband are likely to become a showdown about the extent of the commission’s authority under Communications Act Section 706 and the applicability of the Supreme Court’s 2004 decision in Nixon v. Missouri Municipal League, industry observers told us. The FCC is reviewing pre-emption petitions from Chattanooga, Tennessee, and Wilson, North Carolina. Matthew Berry, chief of staff to FCC Commissioner Ajit Pai, said in a speech Wednesday that the FCC’s authority to pre-empt state laws municipal broadband laws under Section 706 was weak and that the precedent the Supreme Court set in Nixon would likely doom pre-emption in court (WID Aug. 21 p11).

The FCC’s 2014 Quadrennial Review of broadcast ownership rules is unlikely to lead to substantive change in the commission’s rules, several broadcast attorneys and industry observers told us. Comments on the quadrennial rulemaking were due last week, and though many commenters asked for rule changes, some didn’t seem to think such changes were likely. The review is mandated by Congress.

The FCC Media Bureau approved a temporary waiver of newspaper/broadcast cross-ownership (NBCO) rules and the license renewal application for Fox’s WWOR-TV Secaucus, New Jersey, over objections from public interest groups, said an order Friday (http://bit.ly/1uwy44J). The NBCO waiver is necessary to allow Fox to own both the station and the New York Post, the order said. In several petitions to deny and objections to the waiver and WWOR’s renewal, Free Press, United Church of Christ and Voice for New Jersey said WWOR had not fulfilled its obligation to serve northern New Jersey, the order said. Public interest groups had also accused Fox of misrepresenting how much northern New Jersey news and content the station was broadcasting (CD Feb 18/11 p6). The bureau concluded that any misrepresentations were “unintentional and harmless errors.” “Whether the station might have selected different stories to cover or presented its stories using different formats is not a part of our review,” said the order. “It is well-settled law that the Commission does not substitute its own editorial judgment for that of a licensee.” The bureau’s decision “whitewashed Fox’s abject failure to meet the needs of Northern New Jersey,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represented Voice for New Jersey in the matter. Fox’s NBCO waiver is temporary, pegged to the commission’s 2014 quadrennial review proceeding, the order said. Fox will have 90 days after the effective date of a 2014 quadrennial review order that either adopts a new NBCO rule or upholds the existing one to either come into compliance or request another waiver, the order said.

FCC Commissioner Mike O'Rielly Thursday said the FCC should publish the text of proposed orders before they get a vote by commissioners. Writing on the commission’s blog, O'Rielly said more transparency would lead to a fairer, more efficient rulemaking process. Currently, the FCC releases the texts of orders only after they're approved, in some cases months later. Industry officials said the proposal is likely to prove controversial.

Nexstar agreed to sell WEVV-TV (CBS) Evansville, Indiana, to a company run by and partly owned by an African American, as part of Department of Justice-required divestitures. Bayou City Broadcasting Evansville (BCBE) would pay $18.6 million for WEVV, and the FCC must approve the deal, said Nexstar in a news release. BCBE is a owned by affiliates of Alta Communications, Bayou City Broadcasting (BCB) and Sankaty Advisors, and BCB owner DuJuan McCoy will run BCBE. (See separate report below in this issue.) It’s “the second time in the last two months that Nexstar has structured an agreement that furthers the FCC’s goal of increasing minority television ownership diversity,” said Nexstar CEO Perry Sook Monday (http://bit.ly/1lwIVWS). Another recently disclosed Nexstar sale agreement is of three Fox affiliates to Marshall Broadcasting Group, a newly formed minority-owned firm, as Nexstar is buying Communications Corporation of America. Nexstar said it expects to complete all pending deals this year. Selling WEVV “brings the overall CCA transaction into compliance” with DOJ “requirements for approval and will release the pending transaction from hold pending divestiture,” said Nexstar. Marshall’s deal to buy the three Nexstar stations was seen as a template of sorts for other broadcasters to get M&A through an FCC perceived as hostile to such deals (CD June 11 p9). The National Association of Black Owned Broadcasters, which supported the recent station sale to Marshall, also backed the WVEE divestiture, while public interest lawyer Andrew Schwartzman had questions about it. The WVEE deal “is the first independent purchase of a television station by an African American owned company in several years,” said a news release from NABOB, which has BCB as a member. “Unlike several recent transactions in which African American owners have purchased stations connected with larger media companies through joint sales agreements (JSAs) and/or shared services agreements (SSAs), the Bayou transaction is a completely independent transaction.” There are no JSA or SSA pacts, said the association. Nexstar’s news release gives few details, emailed Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. A Nexstar lawyer didn’t comment. “A number of questions are left unanswered,” Schwartzman told us.

A GAO report on broadcaster sharing agreements issued last week (http://1.usa.gov/1nOn1nv) could be used to support arguments both for and against FCC regulation of those arrangements, public interest and broadcast attorneys told us. The report concluded that the FCC has little data on the prevalence of such agreements, and that the agency needs to decide if it must have that information to regulate them (CD July 29 p14). “Without data and a fact-based analysis of how agreements are used, FCC cannot ensure that its current and future policies on broadcaster agreements serve the public interest,” said GAO. The FCC’s lack of information on such arrangements could be used to challenge the foundation for limits on joint sales arrangements, or could serve the interests of public interest groups challenging the FCC closure of the 2010 quadrennial review, attorneys told us.

The FCC Media Bureau approved Sinclair’s $963 million buy of Allbritton’s TV stations Thursday evening (http://bit.ly/1lAXiJr). Though commissioner offices are typically notified of Media Bureau actions on delegated authority 48 hours before they're announced, word of the Sinclair/Allbritton approval was not disseminated until the middle of the day Thursday, according to FCC officials. Industry officials have expected the deal to be approved this week since the Department of Justice signed off on it with a consent decree last week (CD July 22 p4). Although the approval was announced after our deadline, FCC officials told us the order accepts the concessions previously announced by Sinclair to come into compliance with the FCC’s rules on sharing arrangements, and conditions the deal on the same single station divestiture to Media General required by DOJ. The deal’s approval had a July 27 deadline that would have allowed either Sinclair or Allbritton to abandon the transaction.

A Mediacom petition urging the FCC to restrict programmers -- including broadcasters -- from requiring bundling and other concessions during content negotiations may find favor with FCC Chairman Tom Wheeler but is unlikely to be acted on soon, several cable attorneys and industry officials told us in interviews Wednesday. “It would take a very courageous Commission to follow this approach,” said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. Though Wheeler’s support of rules banning joint retransmission consent negotiations by broadcasters indicates he might agree with some of Mediacom’s points, its petition is likely to be crowded out by the ongoing net neutrality and incentive auction proceedings and the host of large scale mergers facing the commission, numerous industry attorneys told us.

The FCC ramped up pressure on ISPs Wednesday to make certain they are providing customers with accurate information about their services. The agency released an enforcement advisory along with accompanying statements from Chairman Tom Wheeler and acting Enforcement Bureau Chief Travis LeBlanc.

The FCC ramped up pressure on ISPs Wednesday to make certain they are providing customers with accurate information about their services. The agency released an enforcement advisory along with accompanying statements from Chairman Tom Wheeler and acting Enforcement Bureau Chief Travis LeBlanc.