On Tuesday, as has been covered in most of the broadcast trade press, the US Supreme Court held its oral argument in the Prometheus case.  In this case, the FCC and a number of media companies seek to overturn the Third Circuit’s decision that threw out the FCC’s 2017 media ownership rule changes.  As we wrote here, these changes included the abolition of the newspaper-broadcast and radio-TV cross-ownership rules, the abolition of the “rule of eight” that requires that there be eight independent TV owners in a market to allow the common ownership or control of two TV stations in a market, the allowance in some cases of the common ownership of two of the top 4 TV stations in a market, and the determination that TV joint sales agreements are not attributable.  When the Third Circuit overturned the 2017 decision, those changes were undone (see our article here).  In addition, the Third Circuit’s basis for its decision was that the FCC had done an inadequate job assessing the effect that relaxations in the media ownership rules might have had on minority ownership in the past and how diversity of ownership would likely be affected by the 2017 changes (looking for historical information the FCC claimed not to have).  As a result, all other changes in the FCC’s media ownership rules have been put on hold, including proposed changes to relax the radio ownership rules because if the Third Circuit decision is upheld, any further changes in the local ownership rules have to make that same showing.

The argument on Tuesday went like so many court arguments – there were lots of questions directed by the Justices to all parties in the case.  While there were some questions about whether the FCC had adequately justified its 2017 decision, there seemed to be many questions focused not on whether to overturn the Third Circuit decision, but instead on whether to overturn it on narrow grounds (that the FCC had justified the need for reform of its ownership rules despite any impact it might have on minority ownership and the courts should defer to the opinion of the expert agency), or whether to come out with a more sweeping ruling that says that the statute calling for Quadrennial Reviews of the FCC’s ownership rules makes competition issues the guiding factor in assessing whether or not to relax existing ownership rules, and that ownership diversity is at most a collateral or secondary consideration.  If the Court in fact decides to overturn the Third Circuit, the basis of the decision could impact future ownership proceedings.  What is next for those proceedings?
Continue Reading The Supreme Court Argument on Media Ownership – What’s Next?

Last week, Chairman Pai gave a speech to the Media Institute in Washington, talking about his deregulatory accomplishments during his tenure as FCC Chairman.  Central to his speech was the suggestion that the broadcast ownership rules no longer made sense, as they regulate an incredibly small piece of the media landscape, while digital competitors, who are commanding a greater and greater share of the market for audience and advertising dollars, are essentially unregulated.  Not only are they unregulated, but the digital services that compete with broadcasting are owned and financed by companies who are the giants of the US economy.  In his speech, he noted that the company with the most broadcast TV ownership is dwarfed in market capitalization by the companies offering competing video services.

While the Chairman’s speech concentrated on television, mentioning radio only in passing, we note that many of these same issues are even more at play in the audio entertainment marketplace.  When the Chairman two months ago offered remarks on the hundredth anniversary of the first commercial radio station in the US, he recognized that radio has played a fundamental role in the communications world over the last century.  But that role faces more and more challenges, perhaps exaggerated by the pandemic when in many markets listeners are spending less time in cars where so much radio listening takes place.  There are many challenges to over-the-air radio as new sources of audio entertainment that sound and function similarly are more and more accessible to the public and more and more popular with listeners.  Over-the-air radio is already less a distinct industry than a part of the overall audio entertainment marketplace competing with streaming services, podcasts, satellite radio and other audio media.  These changes in listening habits are coupled with a change in the advertising marketplace, as the digital media giants now take over 50% of the local advertising market that was once the province of radio, television and newspapers.
Continue Reading Outgoing FCC Chairman Pai Calls for Modernization of Media Ownership Rules – Audio Competition Issues for the New FCC To Consider  

November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines.  While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.

While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations.  See our article here on the FCC’s request for comments in this proceeding.
Continue Reading November Regulatory Dates for Broadcasters: Rulemaking Comments, Hearings on Diversity and a New Commissioner, an FCC Open Meeting and More

There were several reports in the broadcast trade press today about an article in the Hill newsletter from retiring Congressman Greg Walden about his proposals to increase diversity in broadcast ownership.  Congressman Walden, a former broadcaster, seeks in his Broadcast Diversity in Leadership Act to foster minority ownership and ownership by new entrants by establishing in legislation an incubator program similar to the one adopted by the FCC in 2018, but put on hold by the Third Circuit Court of Appeals in their decision on broadcast ownership (which is now before the Supreme Court – see our post here).  While, given the short time before the end of the Congressional session, the Congressman’s bill stands little chance of passing both houses of Congress and being adopted before the end of the year, the bill is worth reviewing as it has the support of both the NAB and minority-advocacy organizations, so it could well resurface in a new Congress.

The bill adopts much of the framework of the FCC’s incubator program (which we outlined in our article here).  Under the proposed legislation, an existing broadcaster could work with an aspiring broadcaster to help that new entrant purchase and operate a broadcast station. The bill asks the FCC to adopt rules outlining the support that could be provided to the new entrant, including training, financing and access to resources of the established broadcaster. The established broadcaster could even hold a non-controlling equity interest in the emerging broadcaster, as long as the new entrant retains control.  In exchange for providing the services or financing, if the incubation is determined to be successful after a two-year period, the existing broadcaster would be allowed to acquire one station in a similarly sized market that exceeded the current cap on broadcast ownership allowed by Section 73.3555 of the Commission’s rules.  So, if the existing broadcaster operates in a market where one party can only own 6 stations, it could acquire a seventh.
Continue Reading Congressman Walden Urges Adoption of Broadcast Diversity in Leadership Act – An Incubator Program to Assist New Entrants to Broadcast Ownership

The 2017 deregulatory changes to the FCC’s ownership rules have been on hold since December 2019, when the decision of the US Court of Appeals for the Third Circuit, overturning those rule changes, became effective (see our post here).  The court’s decision has put any broadcast ownership changes on hold (including potential changes in the radio ownership rules which were not part of the 2017 FCC decision) while the FCC contemplated how to deal with the fallout from the Third Circuit’s decision.  The potential for another way forward arose last week when the Supreme Court decided to hear the appeal of the Third Circuit decision – granting a petition for “cert” (a petition asking the Court to hear the appeal) – the announcement of that grant coming out on Friday.

As we wrote here, the Third Circuit rejected the FCC’s 2017 ownership rule changes, finding that the FCC had done an inadequate job of assessing how prior ownership relaxations had affected the ability of minorities and other potential new entrants to break into the ranks of broadcast ownership.  Despite arguments from the FCC that it had already analyzed the impact of changes on new entrants and taken steps to mitigate any adverse impact, the Court seemed to be directing the FCC to do a more searching analysis of the historical impact of the relaxation of ownership restrictions on new entrants.  Because this analysis would affect any ownership rule change, including those proposed for radio (see our article here), the decision effectively froze further FCC consideration of all broadcast ownership rule changes.
Continue Reading Supreme Court to Hear Appeal of Third Circuit Rejection of FCC Changes to Broadcast Ownership Rules

Here are some of the regulatory developments and legal actions 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 U.S. Supreme Court decided to consider the appeals by the FCC and industry groups of the

Here are some of the regulatory and legal actions and 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.

July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.
Continue Reading July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :


Continue Reading This Week at the FCC: April 18, 2020 to April 24, 2020