Fox Temporary NBCO Waiver Likely to Be Granted Over Public Interest Group Objections

The FCC is considered likely to grant Fox’s request for a temporary waiver of the newspaper/broadcast cross-ownership rule despite objections raised by a number of public interest groups (see 1703090049), numerous broadcast attorneys told us. Fox wants the waiver to allow it to continue operating the New York Post and running TV stations in the same New York market while awaiting an FCC decision on petitions for reconsideration of the FCC’s 2014 quadrennial ownership review. In a joint opposition filing in docket 07-260 for Monday’s comment deadline, the Rainbow/PUSH Coalition, Free Press, the United Church of Christ Communication Office and Voice for New Jersey said the waiver is unjustified and granting a temporary waiver that's dependent on a pending reconsideration process would “violate long-standing, sensible Commission policy.”

The media company has had similar waiver requests granted for 16 years, most recently under FCC Chairman Tom Wheeler, whose agency upheld the newspaper cross-ownership rules in the 2014 quadrennial review. Chairman Ajit Pai was critical of that review and broadcast ownership rules, and is expected to try to overturn them, attorneys said. That makes Fox’s request more likely to be granted under Pai, not less, lawyers said. “The Bureau’s previous grant of a waiver pending the issuance of the 2014 QR Order" doesn't justify another waiver, the public interest groups said in their joint filing.

The temporary waiver seeks relief until the FCC takes action on reversing the media ownership rules, but there are conflicting rumors on when that action will happen, broadcasters and broadcast attorneys said. Since it's widely expected that FCC actions on media ownership will face a court challenge and be brought back before the same 3rd U.S. Circuit Court of Appeals where the agency has lost three times, some attorneys expect the commission to take time preparing the most airtight construction possible. To that end, it’s likely the reconsideration and the upcoming 2018 quadrennial review would all be rolled together, some attorneys suggested. That may mean the FCC won’t take action until the fall, attorneys and broadcasters said. Another possibility would put the reconsideration process in the summer, which would allow broadcasters to take more immediate advantage of looser rules. Broadcaster dealmaking facilitated by looser rules could make the post incentive auction repacking go smoother, one lawyer suggested. Pai has also been especially critical of the FCC being late on past quadrennial reviews, adding credence to the idea that the commission would move quickly this time, a broadcaster said. The repacking effort and the expected rollback of net neutrality are also expected to take up a lot of space at the commission in the next few months, suggesting later action on the quadrennial review, a broadcast attorney said.

The FCC should act on pending requests for review of the last waiver granted to Fox before it grants this latest one, the public interest groups said. “Not only were they filed first, but the grant of either could render Fox’s new waiver request moot,” the petition said. The FCC also has a “long standing policy” against contingent waivers, and thus shouldn’t grant Fox’s, the opposition filing said. “This argument is premised on the assumption that the FCC will soon relax the NBCO rule to allow Fox to own two television stations and a daily newspaper serving the same area,” the filing said. “But there is no reason to assume that the Commission will act quickly, or even if it does modify the rule, that it will allow common ownership of more than one television station and a newspaper.”