The 8th U.S. Circuit Court of Appeals judges didn’t appear to greatly favor either side in arguments Wednesday on the FCC’s 2018 quadrennial review order, but broadcast industry officials and attorneys said they saw it as a positive sign that the panel apparently embraced the idea that broadcasting is under threat. Aren’t FCC rules intended to promote viewpoint diversity “short-sighted” if they lead to broadcasters going out of business and no longer offering news? asked Judge Duane Benton of FCC attorney James Carr. “Isn’t AM radio dying?” Benton asked at another point. “I hear they’re not even going to put it in new cars.”
The FCC’s “In Re: Delete Delete Delete” proceeding could draw a huge number of response filings and is expected to require numerous subsequent rulemakings to lead to actual changes, said industry officials and academics. “Every single regulated entity will sit on Santa's lap and ask for presents,” said TechFreedom Senior Counsel Jim Dunstan. “It will take months just to sift through all the asks and determine how to proceed.”
Oral argument in broadcasters’ legal challenge of the FCC’s 2018 quadrennial review order (docket 24-1380) will take place in the 8th U.S. Circuit Court of Appeals next week, the first time in decades that the 3rd Circuit won't hear the recurring battle.
The Media Bureau on Tuesday granted a waiver of the top four prohibition to allow Gray Media to buy Fox affiliate KXLT-TV Rochester, Minnesota, even though it already owns NBC affiliate KTTC-TV Rochester in the same market, said a letter from Video Division Chief Barbara Kreisman. While FCC rules have allowed for top four waivers on a case-by-case basis for several years, they have rarely been granted. “Today’s action represents the first FCC approval of a new combination of two full-power, top-four ranked, same-market television stations in over five years,” said Gray in a news release. “Importantly, the FCC’s Media Bureau’s grant and written decision come just two months after the parties applied for approval of the transaction, which appears to represent the shortest processing time for a duopoly waiver in Commission history.” Gray’s proposed purchase of a top four combo in Sioux Falls, South Dakota, sat stalled at the FCC for 11 months before being abruptly granted in 2019, shortly after the 3rd U.S. Circuit Court of Appeals ruled against the agency’s 2014 quadrennial review order (see 1909250064).
The FCC is seeking suggestions on which of its rules should be eliminated in a docket (25-133) called “In re: Delete, Delete, Delete,” the agency announced in a news release and public notice Wednesday. “The FCC is committed to ending all of the rules and regulations that are no longer necessary. And we welcome the public’s participation and feedback throughout this process,” Chairman Brendan Carr said in the release. “For too long, administrative agencies have added new regulatory requirements in excess of their authority or kept lawful regulations in place long after their shelf life had expired.”
The FCC and NAB disagreed in court filings this week about how last week’s 11th U.S. Circuit Court of Appeals ruling upholding the FCC’s forfeiture order against Gray Media applies to the broadcaster challenge of the 2018 quadrennial review order in the 8th Circuit. Oral argument in that case is set for March 19. The 11th Circuit ruled against Gray, saying Note 11 -- an FCC rule against broadcasters swapping network affiliation to get around ownership limits -- doesn’t violate the Communications Act or the First Amendment (see 2503070004. The 8th Circuit petitioners, which include Zimmer Radio, Nexstar, NAB, Beasley Media and Tri-State Communications, have made similar arguments against Note 11 in their filing opposing the 2018 QR, which expanded the reach of the rule to include low-power stations and multicast streams.
Broadcast ownership rules are helping strangle local news and must go, FCC Chairman Brendan Carr said in an interview last week on Nexstar's NewsNation. "We need to let some of these broadcasters get to scale so they can hire the local reporters," Carr said. Asked about regulating Big Tech, he said the agency is "taking a look at a lot of different options," including reform of Section 230 of the Communications Decency Act. The FCC could also play a role in "bring[ing] some greater transparency" to Big Tech, Carr added.
The FCC's Note 11 rule, regulating TV network affiliations changing hands, might exceed the agency's Communications Act authority, a pair of 11th U.S. Circuit Court of Appeals judges said Friday as the court vacated a $518,283 fine against Gray Television for violating the rule. Neither the commission nor Gray, which was challenging the forfeiture order (see 2301040059), commented. The FCC charged that Gray violated rules against owning two top-four stations in a market when it bought the network affiliation of an Anchorage TV station from Denali Media.
Media ownership regulations should shift to being technology-neutral and recognizing that there is now an "integrated video-distribution market" that includes broadcast, cable and streaming, said International Center for Law & Economics Senior Scholar Eric Fruits in a blog post Wednesday. “Market power should be assessed based on a company’s share of this broader market, not just its dominance within a particular technological segment,” wrote Fruits, who is also an economics professor at Portland State University. “Instead of different rule books for different technologies, we need a unified framework based on competition principles.” This would involve sunsetting legacy rules tied to specific transmission mediums and basing any ownership rules on actual market share across all platforms, he said. “The focus should be on antitrust enforcement, rather than preemptive structural regulations.” If viewers “readily switch among cable, broadcast, and streaming based on content, rather than delivery method, regulations should treat these services as competitive alternatives,” Fruits wrote. Making that shift wouldn’t be simple but would allow “a media landscape in which competition would be waged on a level playing field and where consumers, not regulatory distinctions, determine which services succeed.”
The outlook is uncertain about whether President Donald Trump will attempt to fire Democratic members of the FCC, as the administration asserts its authority over “so-called independent” agencies (see 2502190073). It’s unclear whether the FCC and its Democratic members, Anna Gomez and Geoffrey Starks, are in Trump’s sights, but no one is taking anything for granted from the current administration, industry experts said. Gomez is emerging as the more outspoken critic of the regime under Chairman Brendan Carr, especially on media items (see 2502200023).