Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration. This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed. Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue. We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023. In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission.
But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC. As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise. This was done not by an action of the Commissioners, but instead by its Media Bureau. Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves. Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.
Changes to the FCC ownership rules may be one casualty of a deadlocked FCC. On the same day that the TEGNA decision was released, comments were due on the 2022 Quadrennial Review FCC’s ownership rules, a review initiated as the partisan deadlock on the Commission apparently prevented the FCC making any decisions in its 2018 Quadrennial Review (see our article here on the initiation of the 2022 Review). The comments filed Friday are little different from those filed when the Commission asked in 2021 for a refreshing of the record in the 2018 Quadrennial Review, after the Supreme Court decision upheld the Commission’s 2017 abolition of the TV-Newspaper cross-ownership rule and relaxed certain TV ownership rules (see our article here). Many public interest groups opposed any further relaxation of the ownership rules, some radio companies opposed relaxation of the radio rules except for AM station subcaps, fearing that relaxation of the FM rules would take all investment away from AM. In addition, the NAB and other broadcast companies have argued that today’s media marketplace requires substantial relaxation in the ownership rules. With these diverse comments, and the partisan-deadlocked FCC, don’t expect quick resolution of any Quadrennial Review. Instead, it appears that any action that does occur on broadcast dealmaking will be through decisions like last week’s TEGNA designation.
EEO reform seems to be another area where there are partisan differences, with some favoring a more numbers-oriented enforcement and monitoring regime, and others looking more broadly at questions of unfairness and actual hiring bias and discrimination, and at affirmative actions (like the tax certificate) to economically incentivize new entrants into broadcasting. While there are EEO proposals pending at the FCC (including the possible revival of the Form 395B annual report which would disclose race, ethnicity, and gender information for broadcast employees, and another proceeding to more broadly look at EEO enforcement), the partisan divide on the Commission may well leave EEO enforcement issues to the Commission’s staff.
There does seem to be more bipartisan cooperation on issues like emergency communications, disabilities-related accessibility, and even rules for the disclosure of information about foreign government sponsored programming, so expect continued Commission actions in these areas. Also watch for action on issues that appear more non-partisan, like reform of the process for allocating the burdens of annual regulatory fees. Where issues about the ATSC 3.0 rollout for television fall are a little harder to discern – but there may be some action there soon as the FCC just issued a temporary stay of the expiration of the requirement that stations converting to ATSC 3.0 maintain a substantially similar program stream in the old ATSC 1.0 transmission format. An FCC decision is now circulating among Commissioners that would apparently address this issue and other matters related to the transition.
Regulatory activity at the FCC will go on – such as considering routine actions in the normal course, putting the resolution of some high-profile partisan issues on hold, and considering other issues through novel means like those employed in connection with the TEGNA deal. No matter what the make-up of the FCC, there seems to be no lack of regulatory issues for broadcasters and other media companies to consider.