The FCC's 2022 quadrennial review will be "inspired" by the 8th U.S. Court of Appeals decision on the 2018 QR (see 2507230063), said FCC Chairman Brendan Carr in a news conference Thursday. Carr pointed to the court's analysis of statutory language as informing the FCC's review. The 8th Circuit ruled that the language requiring FCC quadrennial reviews allows the agency only to loosen rules that are no longer in the public interest, not expand existing rules. The decision's elimination of the top-four prohibition means the agency's QR inquiry can be narrower, he said. The agency "obviously has to move forward with the quad," Carr said.
The 8th U.S. Circuit Court of Appeals vacated the FCC’s top-four prohibition and its extension to low-power TV stations and multicast streams but upheld the agency’s other broadcast ownership rules in a unanimous three-judge decision Wednesday on the 2018 quadrennial review.
The 8th U.S. Circuit Court of Appeals vacated the FCC’s top-four prohibition and its extension to low power TV stations and multicast streams but upheld the agency’s other broadcast ownership rules in a unanimous opinion Wednesday on the 2018 quadrennial review. Petitioners Zimmer Radio, Nexstar, NAB, Beasley Media and Tri-State Communications challenged the order in October. In weighing whether to retain broadcast ownership rules, “the FCC properly considered all three of its public interest goals—competition, localism, and viewpoint diversity,” said the opinion. “In sum, Petitioners have not shown that the Commission’s decision was not reasoned or reasonable.” However, the agency’s justifications for retaining the Top Four prohibition were “counter to the evidence before the agency,” the opinion said. The court also vacated the FCC’s extension of the top four prohibition to multicast channels and LPTV, and ruled that Congress didn’t intend for the agency to use the quadrennial review process to tighten regulations. The court will wait 90 days before issuing the mandate in the case to give the FCC an opportunity to provide “adequate evidence to support any of its articulated justifications for retaining the rule. If the FCC fails to do so, upon further order the mandate will issue,” the opinion said.
The FCC should “move expeditiously” to relax broadcast ownership and require a mandatory transition to ATSC 3.0, said NAB CEO Curtis LeGeyt in a meeting Monday with FCC Commissioner Olivia Trusty, according to an ex parte filing posted Thursday in docket 17-318. “Each day that passes without reform further disadvantages broadcasters -- and ultimately the American public -- in a land of unconstrained non-broadcast media giants,” the filing said. Recent objections to NAB’s push for an ATSC 3.0 transition timeline and tuner mandate are “disingenuous and blatantly anticompetitive” and come from “certain players in the ecosystem that are clearly threatened by a competitive free video service available to consumers throughout the nation.” Local broadcasters “are striving to secure a future that is free, local, innovative, and resilient,” the filing said. “But doing so requires timely, forward-looking action from the Commission.”
The FCC requiring a mandatory ATSC 3.0 transition would “emulate Soviet-era politicos” and amount to “blatant market meddling" for “dubious benefits,” wrote former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Michael O’Rielly in a post Wednesday. O’Rielly compared broadcaster plans to generate revenue from their spectrum using ATSC 3.0 datacasting to “side hustles" and to “allowing mailmen to use U.S. postal trucks to deliver Christmas trees.” Even if a 3.0 datacasting business materializes, “remember that the government would be allowing broadcasters to leverage the spectrum that they use to offer these services for private gain and far afield from providing broadcast services to the public. Is this the best use of a scarce resource?” O’Rielly asked.
The FCC shouldn’t take up a proposal to give broadcasters expedited waivers of media ownership rules in exchange for their promises to reduce retransmission consent rates by 50% over three years, said Free State Foundation Senior Fellow Andrew Long in a post Monday. The proposal, from Cincinnati Bell Extended Territories and Hawaiian Telcom Services Co., was filed in the FCC’s “Delete” docket in June. It amounts to “forward-looking, government-imposed pricing mandates” on retransmission consent rates “that could persist for a decade or more,” Long wrote. The proposal would also use administrative contracts that couldn't be reviewed in court and would bind broadcasters and MVPDs, he said. “These so-called voluntary ‘social contracts’ would impose enforceable, multiyear pricing constraints -- effectively, rate regulation -- while circumventing judicial scrutiny.”
Social contracts with cable operators could offer "a measured approach" toward easing TV ownership restrictions, according to altafiber and Hawaiian Telecom. In docket 25-133 Friday, they laid out the basics of such social contracts, which involve cable operators getting flexibility in setting rates for regulated product tiers and services, and, in exchange, the cablers agreeing to benefits, including negotiated rates, limited future regulated rate increases and free services to schools and libraries. Earlier in June, altafiber and Hawaiian Telecom pushed in meetings with FCC staff for social contracts for broadcasters in the event of changes to the broadcast-ownership cap, with the contracts including such agreements as reductions in retransmission consent rates that broadcasters charge MVPDs.
FCC Chairman Brendan Carr said Thursday that he's “open-minded” about the result of the agency’s proceeding on modifying the national broadcast-ownership cap (see 2506180082), while Commissioner Anna Gomez denounced it as “a sweeping effort to tip the scales even further in favor of a handful of powerful corporations.” Gomez said she knows broadcasters are facing economic pressures and the FCC may need to provide relief, “but this is where we need a scalpel, not a chain saw.” Broadcast officials told us that keeping the ownership cap in place only for network-owned stations -- as the public notice suggests -- could make the rule change more vulnerable in court.
The FCC Media Bureau’s move to seek comment on relaxing national broadcast ownership limits just a day after the confirmation of incoming Commissioner Olivia Trusty is an indication that the agency will act quickly to enact Chairman Brendan Carr’s agenda now that he has a majority, industry officials told us. That agenda likely “picks up some pace” in the next couple of months as Carr can move on items he couldn’t advance with a 2-2 FCC, said former Commissioner Mike O’Rielly. The FCC is likely to swear in Trusty as a commissioner on Monday or Tuesday, a former Republican FCC aide told us.
The U.S. Supreme Court handed down a ruling Friday that likely means less certainty for FCC actions and those of other federal agencies under the Hobbs Act. The decision comes a year after SCOTUS overruled the Chevron doctrine, which had required courts to give deference to agency decisions, in the Loper Bright case (see 2406280043). The latest from the court was Friday's 6-3 decision in McLaughlin Chiropractic Associates v. McKesson, a much-watched case on the Telephone Consumer Protection Act (see 2506200011).