Action on Media Ownership Could Wait on Pai Reconfirmation

Some broadcast industry officials now don’t expect FCC action on petitions for reconsideration of the 2014 quadrennial review until after Chairman Ajit Pai has been reconfirmed. Since it's not known when or if that reconfirmation will take place, expected relaxation of newspaper/broadcast cross-ownership rules and other ownership policies may not occur until at least October, and possibly not until the end of 2017, said broadcast executives. Legislators deferred Pai’s reconfirmation when they confirmed Commissioners Jessica Rosenworcel and Brendan Carr in August (see 1708030060). Pai told us last week he hadn't begun considering the agency’s plans for October (see 1709060073).

The recon order had been seen as slated for October, after Pai released a September agenda without it. Broadcasters said Monday the item is now seen as possibly taking even longer. The complexity and expectation of litigation are likely contributing to the delay, but concerns about controversy could also cause Pai’s office to wait until after his reconfirmation, broadcasters and former FCC officials said. The FCC’s proposed actions on net neutrality and Sinclair's buy of Tribune attracted a lot of attention to Pai’s administration, and further relaxing media ownership rules could lead to a more contentious nomination process or even a hold, industry officials said. The FCC didn’t comment.

One broadcast executive disagreed, saying Democratic legislators have no reason to hold up Pai’s reconfirmation since Democratic Commissioner Mignon Clyburn’s seat would be up for consideration at the same time. If both commissioner positions were unfilled, the FCC still would have a Republican majority and a quorum, the broadcaster said. Another broadcast attorney said that while confirmation concerns may play into the timing of action on media ownership, they may influence timing less than the complexity of such an action, or the heft of the FCC's current workload.

Media ownership rules have been a heavily politicized and contentious issue since a consolidation wave in the late 1990s, said University of Minnesota Hubbard School of Journalism assistant professor of media law Christopher Terry. With the repeated cycle of successive commissions having their changes to media ownership rules invalidated by the 3rd U.S. Circuit Court of Appeals, media ownership is a “charged environment,” Terry said. “You have inherently political arguments against a backdrop of unresolved issues 20 years in the making.” Proceedings on the UHF discount and net neutrality increased scrutiny of Pai and the FCC, and the optics of Sinclair/Tribune exacerbate the situation, Terry said. Pai is an appointee of President Donald Trump changing rules in a way that will allow a company that's perceived as pro-Trump to grow, Terry said: “You can’t separate the politics from the other issues.”

Legislators often handle FCC appointments just before recesses, so Pai’s reconfirmation may not occur until December, several broadcasters said. That could lead to action on media ownership being pushed into 2018, some broadcasters said.

Time pressure to act on media ownership sooner could be coming from Sinclair/Tribune, officials said. Though attorneys familiar with the deal said it doesn’t depend on changes to ownership rules, the company hasn’t listed any specific divestitures and asked the agency to act on the transaction after taking up recon of media ownership (see 1708230061). Sinclair said the deal is expected to close by year-end. The FCC also could issue waivers if agency policy changes after the deal is approved.