In recent years, as competition in the video marketplace has become more intense, in a number of broadcast television markets, competing stations have teamed up to combine certain of their operations to achieve economies while still allowing for some degree of independence of programming. Under these "shared services agreements", one station will provide back-office support and often advertising sales for another station in the market. Where the station providing the support programs less than 15% of the programming hours of the station being supported, the contractual arrangement is not "attributable under the FCC’s multiple ownership rules. Thus, these services can be provided in circumstances where the supported station could not be owned by the station that is providing the services. Nevertheless, a number of these arrangements have been under attack from public interest groups, and recent Commission actions indicate that the FCC may well be reviewing its position on these sorts of agreements.
A few weeks ago, in approving an application which provided for a shared service agreement between two television stations in the same market (over the objection of a competitor), the FCC noted that it was approving the deal as consistent with its rules as they are currently enforced, but warned that the arrangements would be reviewed as part of the FCC’s review of its multiple ownership rules – a review which is to take place this year. This week, the FCC agreed to treat a case in Hawaii, which has generated much controversy and press coverage, as a "permit but disclose" proceeding, meaning that parties are not confined to the usual process of arguing their cases through written submissions served on all parties (or meetings at which all parties are present). Instead, interested parties can now meet with FCC decision-making staff (including FCC commissioners) on their own, as long as they file an "ex parte" notice in the record summarizing the presentations that they made. This process is usually used only for high-profile decisions with potential far-reaching impact or where new policy is potentially to be made.
These decisions make clear that the Commission is carefully thinking about its position on these agreements. While there is no certainty where that thinking will come out (whether it will uphold its current policy or evolve its thinking on the matter), the issue is clearly being considered. We have written about how certain public interest groups have targeted these agreements for FCC scrutiny in some of the preliminary hearings on its quadrennial review of its multiple ownership rules, and we expect more discussion of them in coming months. Supporters of these agreements, who believe that they provide the only way that many smaller television stations can survive in today’s media marketplace, will no doubt be heard as well. Watch for this debate to unfold in coming months.