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Last week, as we noted in our weekly summary of regulatory actions of importance to broadcasters, the US Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted.  The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review.  Neither last week’s order, nor any mandamus order that could be issued by the Court should the FCC fail to finish its review by December 27, will compel any particular decision.  Instead, such an order would only require that the FCC finish the review started in 2018 (see our article here on the start of that review process).

The Quadrennial Review process is mandated by Congress.  Every four years, the FCC is required to review its local ownership rules and determine which ones remain in the public interest.  The NAB’s argument to the Court has been that the FCC failed to meet its statutory obligation by not completing the 2018 review last year.  In December, we wrote about the FCC’s failure to complete the Quadrennial Review, and how the inaction has forestalled any review of the issues that were teed up in that review.  What were those issues?Continue Reading Court Orders FCC to Complete Quadrennial Review by December 27 – What are the Issues for Review by the Commission?

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Enforcement Bureau reminded stations of their obligation to comply with all sponsorship identification rules and to disclose information

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The FCC yesterday issued a Public Notice addressing news sharing or “pooling” agreements between television stations that are coming together as a result of the COVID-19 pandemic.  Stations may be faced with fewer crews to cover local events as infections and self-quarantines take place, and because of the general obligation to maintain physical distancing from other people, no one wants a crowd of camera crews and reporters at every news event.  The FCC’s notice yesterday states that such agreements entered into during the crisis for news sharing do not need to be in writing and do not need to be in the public file – an exemption to the normal obligation to reduce any sharing agreement between TV stations to writing and add it to the online public file.  That obligation exempts “on-the-fly” arrangements during breaking news events and those precipitated by unforeseen or rapidly developing events.  The FCC concluded that pandemic-related agreements fit into that category.

Ordinarily, the obligation to include sharing agreements between TV stations in the public file is a very broad one.  We wrote about that obligation here.  The rule grew out of concerns by the FCC that stations could be using sharing agreements to skirt the FCC’s ownership rule limitations and wanted such agreements to be public so that it, and the public, could review their provisions to determine if any FCC action was necessary.
Continue Reading FCC Issues Guidance on TV News Sharing Agreements During the Pandemic

Yesterday, we wrote about the regulatory dates coming up for broadcasters in September.  Even though that was an extensive list, we realized later that we left a few off.  So here are a few more issues to consider in September.  Plus, the FCC yesterday reminded repacked TV stations of all of the requirements for TV stations involved in the repacking of the TV band following the Incentive Auction which, as we noted in our post yesterday, formally begins this month.

One date that we overlooked was the effective date for a general increase in FCC application fees – those fees that commercial broadcasters pay every time they file an application for a construction permit, approval of a purchase or sale of a station, a license renewal, an STA or many other requests for FCC action.  As we wrote here, the FCC recently announced that the fees were going up to reflect inflation.  Last week, the FCC issued a Public Notice announcing that those new fees are effective on September 4.  So commercial stations filing applications on September 4 or afterward need to remember to pay the new fees, or risk having their applications returned.
Continue Reading More September Regulatory Dates – Effective Date of New Application Fees, Filing Deadline for TV Shared Services Agreements, Lowest Unit Rate For September Election and Reminder on Repacking Requirements

With the FCC about to propose changes in its national ownership cap for television at its meeting tomorrow (see our article here), we thought that we would take a look back to the week before Thanksgiving, when the FCC made some important decisions for the broadcast industry – including the approval of the Next Generation TV transmission standard and the change in numerous broadcast ownership rules.  We promised to take a deeper look at these decisions when the texts of the orders were released, and here is a look at some of the interesting items in the ownership decision.  We will only lightly touch on radio issues here, concentrating primarily on TV matters, as the FCC made few changes that directly affected radio, pushing most to the next Quadrennial Review of the ownership rules, likely to begin next year.  We’ll post some thoughts on radio issues at some point in the future.

Certainly, there was plenty of legal discussion about the standards for reconsidering an FCC decision (this reconsideration being a review of the FCC’s ownership order adopted under the last administration in August 2016).  While the FCC ultimately concluded that it could review the 2016 decision where it believed that there were substantial errors in the Commission’s initial decision, the legal wrangling over the process for the review is perhaps less interesting to most in the broadcast industry than is some of the other discussion contained in the order and what that may portend for further ownership review by this administration.  So let’s look at the FCC’s discussion of the various issues that it faced in the reconsideration order.
Continue Reading A Deeper Dive on The FCC’s Ownership Order

Tomorrow, the Petitions for Reconsideration of the FCC’s multiple ownership decision is scheduled to be published in the Federal Register (see the pre-publication draft here). This will start the clock on comments on those petitions. If publication occurs as scheduled, comments will be due on Tuesday, January 17 and replies on Friday, January 27 (update: the actual  Federal Register publication states that Replies are due January 24, but we believe that is probably an error, as the FCC rules require 10 days for a reply – watch for a further update). As we wrote here in connection with the comment dates on Petitions for Reconsideration of the abolition of the UHF discount, and here when we commented on the potential impact of the Presidential election of broadcast law, this may be one of the first opportunities where we will be able to assess the meaning of the changes in the membership of the FCC. We will see to what extent the new administration will be willing to roll back the decisions made by the FCC under its old leadership.

The Petitions for Reconsideration raise several issues, both for radio and TV. Questions are raised as to whether the local TV ownership restrictions continue to make sense in today’s economic world – particularly those limiting the co-ownership of any two of the Top 4 stations in a market, and limiting any co-ownership to markets where there will be 8 independently owned and programmed stations.  Attribution of stations that are subject to a Joint Sales Agreement is also questioned. Finally, questions are raised as to whether the FCC is justified in imposing new filing requirements for documents relating to joint operations between TV stations, seemingly looking to collect information in order to impose in the future some sort of restriction on any sort of shared services agreement.
Continue Reading Multiple Ownership Petitions for Reconsideration to be Published in the Federal Register Setting Dates for Public Comment

FCC Chairman Tom Wheeler this week released a “fact sheet” setting out a summary of the draft order now circulating among the FCC Commissioners for review and possible approval. This order, if adopted, would resolve the Quadrennial Review of the FCC’s ownership rules. As we wrote here, the US Court of Appeals for the Third Circuit recently pushed the FCC to quickly resolve this proceeding. The FCC had punted two years ago when it decided that it could not resolve its 2010 Quadrennial Review of the ownership rules and pushed consideration of most of the issues forward to this Quadrennial Review, preliminarily suggesting that few rule changes were necessary. The Chairman’s fact sheet seems to suggest that, in fact, few are being proposed.

  • With one exception, despite the proliferation of new media outlets that compete for the revenue and audience of over-the-air radio and television, the proposed changes set out in the fact sheet seem to make the ownership rules more restrictive – not less restrictive. In other words, traditional media is not given any significantly greater leeway to combine operations to compete with its digital competitors. The one exception is a very modest proposal to allow case-by-case waivers of the newspaper-broadcast cross-ownership rule (which some commentators, including us, have suggested may outlive the newspaper), but only where it can be shown that there are economically failing media entities looking to combine. The order addresses basic FCC ownership rules as follows:
    Continue Reading FCC Chairman Releases Summary of Media Ownership Reform Proposals – Little Change in Existing Ownership Rules, Reinstatement of JSA Ban

Next week, on August 6, the FCC will be taking the initial comments on its Quadrennial Review of the multiple ownership rules – looking at what limitations should be placed on the ownership of broadcast stations by one individual or company.  As we have written, this Review follows the FCC’s resolution of the last Quadrennial Review, started in 2011, where the FCC made joint sales agreements between TV stations in the same market “attributable interests” – meaning that you can’t enter into a JSA unless you can own that station under the rules.  All of the other issues on the local ownership rules – including whether to change the rules setting the number of radio or TV stations that can be owned in a single market, and whether the rules against the same market cross-ownership of radio and TV stations, and of daily newspapers and broadcast stations should be modified – were pushed back to this new Review, which is not supposed to be finally decided for another two years.  While we wrote about some of the hidden nuggets in this proceeding in defining radio and TV markets here, let’s look a little deeper at some of the other issues involved in the review – today the local TV ownership rules.  In advance of next week’s comment deadline, there has already been much relevant regulatory action this past week – including the FCC’s approval of the Sinclair’s acquisition of the Allbritton TV stations (but only after Sinclair agreed to surrender to the FCC for cancellation TV stations licenses in two markets as its ownership of those stations would not be allowed under the current rules), and a GAO report addressing Shared Services Agreements between TV stations.

Currently, the FCC allows an owner to hold one TV license in a market, except in certain limited circumstances where two can be owned.  An ownership combination is allowed in the normal course only where there would be eight independently owned stations left in the market after the combination, and only where the combining stations are not both Top 4 stations in the market.  The Commission does also allow some combinations where one of the stations is “failing,” but that is looked at only on a case-by-case waiver basis.  Many broadcasters have argued that, particularly in small markets where there is insufficient revenue to support multiple fully competitive stations, greater consolidation should be allowed.  But the Commission has tentatively rejected that idea in its Notice of Proposed Rulemaking in the new Quadrennial Review.  Why?  Seemingly, small market consolidation was not favored on the simple theory that consolidation is bad, and on the hope that, if the FCC forbids consolidation (and stops any sort of sharing arrangement, like the JSAs that it has already prohibited, and the Shared Services Agreements that it has suggested in this proceeding need to be further limited), minorities and other new entrants will enter the market.  Both of this week’s events – the Sinclair acquisition and the GAO report, seem to cut against the FCC’s beliefs.
Continue Reading Comments on Quadrennial Review of FCC’s Broadcast Ownership Rules due Next Week – Local TV Ownership Issues Highlighted By GAO Report and Sinclair Acquisition Approval

The FCC has extended the time for filing comments in its ownership proceeding.  While comments on the new Quadrennial Review of the ownership rules had been set to be filed by July 7 (see our article here), the Commission has now extended the deadline until August 6 at the request of the Coalition…

The National Association of Broadcasters on Monday asked the US Court of Appeals for the District of Columbia to overturn the interim processing policy statement adopted by the FCC’s Media Bureau requiring that the FCC scrutinize every new Shared Services Agreement.  As we wrote last month, the FCC has decided that television Joint Sales Agreements should not be permitted unless the stations involved could be commonly owned.  It also commenced a new rulemaking proceeding to review its multiple ownership rules, including specifically Shared Services Agreements.  The rulemaking notice indicates that the FCC thinks that Shared Services Agreements should be limited, but it is asking for public comment as to what kind of sharing is in the public interest, and which should be prohibited.  Any restrictions on SSAs are but a proposed FCC action, and not any sort of final rule.  Nevertheless, the FCC’s Media Bureau, two weeks before the decision starting the rulemaking proceeding on SSAs, instituted an Interim Policy, effectively requiring a case-by-case analysis of all new agreements that involve sharing arrangements.  It is that interim policy that the NAB is challenging.

What the NAB is saying is that this policy effectively creates new law without the Commission making any decisions in the rulemaking proceeding – effectively prejudging that proceeding even before the public comments have been received.  And the policy does in fact change what had been permitted in the past, as many SSAs had been approved in various FCC proceedings.  Even the standards applied to the evaluation of whether or not such agreements are in the public interest change established FCC policy, e.g. suggesting that any involvement in the financing of one station by another, including the guarantee of a loan, would be impermissible – contrary to explicit decisions by the FCC that loan guarantees were not an ownership attribution issue.  Similarly, options and other potential future ownership rights, under the interim processing guidelines, give rise to a suggestion that the deal is not in the public interest – contrary to FCC decisions made after notice and comment rulemaking proceedings on the multiple ownership attribution policies – that contingent future ownership rights did not give rise to attribution for multiple ownership purposes unless such future interest rights were exercised. 
Continue Reading NAB Files Court Challenge to FCC’s Shared Services Agreement Interim Policy