While several parties went to Court to challenge the FCC’s decision ending the UHF discount, one broadcaster decided instead to ask for reconsideration. That petition for reconsideration has now been published in the Federal Register, giving interested parties until December 27 to comment, and other parties until January 6 to reply to any comments that are filed. This reconsideration petition may give a new Republican-led FCC its first opportunity to revisit the FCC’s multiple ownership rules which have been the subject of several petitions for reconsideration, as we suggested might happen in our review (here) of the impact on communications law of the election of Donald Trump as the new President.
The UHF discount counted only half the audience reached by UHF stations in assessing an owner’s compliance with the 39% national cap on audience. The FCC ended that discount in September (see our summary here), finding that in a digital world, UHF channels were no longer inferior to VHF ones. Given that most TV stations are operating on the UHF band after the digital conversion, the FCC determined that the discount was not justified in the current television marketplace. A number of TV groups argued with that determination, contending that, in today’s media market, there was no reason to impose what was in effect a tightening of the national ownership cap. The elimination of the discount capped acquisitions by several TV groups, and actually put a few over the 39% limit. In addition, broadcasters have argued that the discount was in effect when Congress adopted the 39% cap, so any change would need to be authorized by Congress. While other parties have filed an appeal with the US Court of Appeals, it is likely that the Court will defer to the FCC and allow it to reconsider the abolition of the UHF discount (which the two Republican Commissioners opposed when it was adopted).
Many of the FCC’s other ownership rules also will likely end up before the new FCC for reconsideration. The week before last, the NAB decided to ask for reconsideration of some of the FCC’s late summer decision on the broader ownership rules (see our article here). Included in the FCC petition was a request that the FCC reconsider its decision to retain the newspaper-broadcast cross-ownership rule. The NAB also asked that the FCC revisit the local TV ownership rules and its decision not to adopt a proposal for an incubator program to promote minority ownership. Another petition for reconsideration has been filed, asking that the FCC change its rules on counting stations in embedded markets in assessing local radio ownership rule compliance (see our summary of that issue here). These petitions for reconsideration will be in subsequent FCC public notices, starting their own comment cycle.
In short, these petitions for reconsideration will give a new post-inauguration Republican-led FCC the opportunity to revisit the ownership decisions made in the Democratic administration. Thus, it is quite possible that changes in these decisions will be made without having to rely on courts to overturn or otherwise question the FCC’s decisions. Watch for more developments in the coming weeks.