This week brought the news that the Biden administration has nominated Anna Gomez for the open Democratic FCC seat that Gigi Sohn was to fill until she asked that her nomination be withdrawn in March, after a prolonged debate over her confirmation. Gomez is experienced in government circles, having worked at NTIA (a Department of
This Week in Regulation for Broadcasters: May 8, 2021 to May 14, 2021
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
- In a speech to the Media Institute, FCC Commissioner Starks spoke of the importance of diversity in media ownership and
The First Amendment’s Role in Broadcast and Online Regulation
Everyone knows that a fundamental principle of American democracy is the First Amendment – guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech. It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice. Few people – even broadcasters and other media companies – have cause to think about First Amendment principles in their day-to-day operations. The concepts embodied by the First Amendment are almost a given – except when they are not.
In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts – often made without significant consideration of those First Amendment principles. On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters. One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here). While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent.
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Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come
The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here). Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here). The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to. Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.
The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified. In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact. The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules. The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one. Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions). In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree. …
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Geoffrey Starks to be Nominated as New FCC Commissioner
Geoffrey Starks, currently an Assistant Chief in the FCC’s Enforcement Bureau, will, according to multiple reports released last week, be nominated to fill the FCC Commissioner’s seat currently held by Mignon Clyburn. Commissioner Clyburn, as we wrote here, has announced that she will be stepping down. She has already ceased participating in FCC meetings…
A Full House at the FCC as Two “New” Commissioners Confirmed
Since the beginning of the year, the FCC has been acting with fewer than its full complement of Commissioners. Since the January departures of Chairman Wheeler and Commissioner Rosenworcel, the Commission has had three Commissioners – two Republicans (Chairman Pai and Commissioner O’Rielly) and one Democrat (Commissioner Clyburn). Last week, Congress confirmed the nominations of Democratic Commissioner Rosenworcel for her return to the FCC, as well as new Commissioner Brendan Carr, a Republican. With these two expected to be sworn in in the very near future, it will complete the full house of three Republicans and two Democrats. With the background of the new Commissioners, and the 3-2 Republican majority, is this a winning hand?
With this make-up of the FCC, the Commission will likely continue to proceed in the deregulatory fashion that we have seen so far this year. Commissioner Rosenworcel is a known quantity, having served on the FCC for several years before her term ran out in January. While a Democrat, during her initial term as a Commissioner, her views reportedly departed from those of Chairman Wheeler in a few instances , modifying the outcome of some of his initiatives. New Commissioner Carr has been serving as the FCC’s General Counsel under Chairman Pai, and had previously worked as a legal advisor in Pai’s office. While his legal background has primarily been in non-broadcast areas, as General Counsel, his office was involved in several significant broadcast actions, including the recent defense of the reinstatement of the UHF discount against attempts by certain public interest groups to have the Court of Appeals impose a stay the effective date of the Commission’s action (see our article here). Of course, these positions are not necessarily indicative of his stances when he is acting as an independent Commissioner instead of acting in a role that was subject to the direction of the Commissioners. Only time will tell for sure how the new fully-staffed Commission will interact with each other, but the bets are that the general direction will not be changing.
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