With the change in administration at the FCC, there are opportunities for certain actions to be taken very quickly, without going through the full process of a rulemaking requiring public notice of the proposed rule change and time for public comment. At the end of this last week, we saw the FCC’s Media Bureau take actions in three different proceedings directly applicable to broadcasters to undo what had been done during the prior administration – rescinding actions with respect to noncommercial ownership reports, the disclosure of information about the sponsor of political advertisements, and on the treatment of TV assignment and transfer applications for television stations where shared service agreements are involved. Below, we’ll give a few details about each of those actions.
Two of the rescinded actions were January rulings by the Media Bureau which, at the time they were issued, drew statements of concern from then-Commissioners Pai and O’Rielly. The Republican Commissioners argued that the actions should have been taken by the full Commission, not the Media Bureau. As these decisions were not final (appeals can be taken or reconsideration requests can be filed within 30 days of an action, and the full Commission, on its own, can set aside a staff action within 40 days), the Media Bureau, presumably at the urging of the new Chairman, set these actions aside for further consideration by the full Commission.
The first action set aside on Thursday evening was the denial of reconsideration of the requirement that every individual who is deemed to hold an attributable interest in a noncommercial broadcast station licensee get an FRN – an FCC identification number that requires the submission of a Social Security Number to the FCC (the rule does provide an alternative to the FRN which also requires the submission of significant personal information). As we wrote here, in early January, the Media Bureau denied a request for reconsideration of these new ownership requirements (even though the reconsideration request was filed with the full Commission) – finding that the appeals raised no new issues and thus could be summarily rejected by the Media Bureau. Noncommercial licensees had objected to these requirements as they could be seen as invasive by Board members of public institutions that hold FCC licenses – especially by Board members at state universities. The requirements could require that licensees gather this information from state governors or other prominent citizens who are on university boards – even though these Board members have little or no direct contact with the stations themselves. Both Republican Commissioners objected to the Bureau’s dismissal of the reconsideration request (both indicating that the information gathering was unnecessary, and that they would review the matter once they became the majority), and a bill was even introduced in Congress to overturn the requirement (see our article here). While the order on Thursday simply overturns the Media Bureau decision denying reconsideration of the order, meaning the original order itself still stands, we would certainly expect that the reconsideration petition will now be reviewed by the Commissioners and, given the prior statements of the now-majority Republican Commissioners, will likely not be long for this world, and may well be acted on before the Biennial Ownership Reports requiring this information are due on December 1.
The second area for rescission dealt with January orders by the Media Bureau issuing admonitions to numerous TV licensees for purported violations of the FCC’s public file rules for political and issue ads. We wrote about those decisions here. The Media Bureau admonished numerous stations for not identifying in their public files all issues mentioned in political ads, and not inquiring about the full list of executive officers or directors of the sponsor (information also required to be in the public file). While the Republican Commissioners had indicated that they thought that they could have reached an agreement on the issues addressed in these cases, their belief was that the issues should have been tackled by the Commissioners, not by the Media Bureau. By rescinding the Media Bureau orders, that is apparently what will happen with these issues now.
The final broadcast issue that was undone on Friday was a Media Bureau policy statement, which we wrote about here and here, issued in 2014, that set processing standards for television acquisitions that included stations involved in any sort of sharing agreement with other local stations, including any form of Shared Service Agreement. These standards were adopted by the Media Bureau and had the effect of prohibiting certain Shared Services Agreements, even though the Commissioners themselves had not determined what was permitted and what was forbidden. In fact, even in the 2016 ownership decision, the Commission still did not adopt any blanket prohibition against any type of Shared Service Agreement – instead deciding to further study those agreements (and to require the filing of such agreements, an obligation that the NAB has asked the FCC to reconsider). As the 2014 processing standards were adopted by the Media Bureau without Commission vote, and were merely processing standards not rules, the new administration apparently concluded that they could be rescinded in the same way that they had been adopted – by the Bureau with no public input.
These actions make clear that things are moving fast at the new FCC. We’ll be watching to see what is next.