FCC Review of Ownership Rules not Seen as Happening Soon

The FCC’s quadrennial review of its ownership rules is seen as being on the back burner and not likely to be a focus for the current FCC, numerous communications attorneys told us in interviews. That’s despite an NAB petition (see 1510130061) to hold the Charter/ Time Warner Cable/ Bright House deal in abeyance filed Sunday asking the FCC to take up the matter. Though Chairman Tom Wheeler has said the commission will address the 2014 ownership review in time for the June statutory deadline, the FCC is known for not completing ownership rule reviews on time. The politically charged atmosphere around the ownership rules, the upcoming TV incentive auction, and the ongoing litigation with NAB and Prometheus Radio Project over the 2010 quadrennial review are all reasons the FCC is unlikely to tackle a review of media ownership anytime soon, attorneys told us.

“I think this is one for the next administration,” Pillsbury broadcast attorney Scott Flick said, though he added it was possible some behind-the-scenes work on the issue is occurring. One broadcast attorney said that Wheeler could seek to address ownership rules toward the end of his tenure to avoid having a legacy seen as anti-broadcast. Others suggested that with Wheeler’s reputation for swift, decisive action, if he wanted to tackle media ownership, the commission would be doing so. Another possibility is that Wheeler already sees the FCC as having taken decisive action with its changes to joint sales agreement (JSA) ownership attribution, said David Honig, senior adviser to the Multicultural Media Telecom and Internet Council. “They did something very substantial,” Honig said. The FCC and Media Bureau didn’t comment.

The ongoing court case over the quadrennial review in the U.S. Court of Appeals for D.C. Circuit is set for oral argument Dec. 3, but the court’s decision is likely to be appealed by one of many parties to the case, said Honig. MMTC, broadcaster Howard Stirk Holdings, NAB and the Prometheus Radio Project have all challenged aspects of the FCC’s rolling of the 2010 quadrennial review into the 2014 review and related order changing attribution for JSAs. With the inevitable appeals, it’s likely that the court case won’t be resolved until later in 2016, when an ongoing presidential election might discourage the commission from taking up such a contentious matter, Honig said. Other attorneys told us that ongoing litigation wasn’t a legitimate excuse for the FCC to ignore a statutorily required rulemaking. A court case doesn’t mean the FCC can “ignore the clock,” said Free Press Policy Director Matt Wood.

Though the FCC is seen as avoiding media ownership issues because they are politically fraught, the incentive auction provides a plausible excuse to not address them, several attorneys pointed out. The auction demands lots of FCC resources, and the commission’s focus on freeing up maximum spectrum is a reason not to make it easier for broadcasters to own more than one station, several attorneys said. The auction’s “not a good excuse,” Wood said. “The FCC can do more than one thing at once.” The auction, once it is complete, could even spur action on media ownership rules, one broadcast attorney said. If a large amount of TV stations give up broadcasting for the auction, the commission may need to re-examine ownership rules originally calibrated to a more robust broadcasting industry, such as the eight voices test, the attorney said. In a greatly reduced broadcast field, fewer markets will have eight voices, the attorney pointed out.

If the FCC does take up the quadrennial review in time for the deadline, its unlikely large substantive changes will result, attorneys told us. Newspaper/station cross-ownership rules are controversial, long standing and have proved very difficult to change, attorneys pointed out. “It doesn’t seem like this is on any kind of track,” Wood said. “I wouldn’t hold my breath,” a broadcast attorney said.