O'Rielly Uses FCC Blog to Refute Sinclair Critics; Lengthy Defense Includes ATSC 3.0

In what some called an unusual move, FCC Commissioner Mike O'Rielly used the agency's blog Friday to defend each of the commission's media regulations under Chairman Ajit Pai against criticism that such actions are benefiting Sinclair. Recounting a trip last week to the Pearl TV-led ATSC 3.0 model-market project in Phoenix (see 1805090082), O'Rielly fleshed out his view that the Pai-led commission isn't trying to help only Sinclair, but broadcasters overall when circumstances dictate.

In Phoenix, O'Rielly noted, none of the 12 participating stations in the 3.0 model-market project are owned by Sinclair. The company wants the OK to buy Tribune in a deal opposed by anti-consolidation advocates and some aligned with the political right. O'Rielly said he will back changing the current national TV ownership cap (see 1804240072).

"There is a false narrative in Washington, DC, that ATSC 3.0 will only benefit one particular company" and "everything the Commission has done in the media space over the last 17 months has been to benefit one company," read the more than 2,100-word post. "This misguided fantasy is perplexing to other broadcast stations across the country that have seen real benefits to our actions." It's "not right" such "violative charges have gone unchecked," O'Rielly wrote of "false claims."

Of contentions the new TV standard "was done to aid Sinclair’s profitability via its portfolio of patents," the commissioner noted he merely sought to nix rules preventing stations from moving to the new format. "Adoption of a compilation of twenty standards making up ATSC 3.0 by the private sector went through extensive debate and voting procedures. The Commission merely adopted what the standard setting body agreed," he wrote. If viewers don't want enhancements like ultra-high definition and enhanced emergency alerting, "they will not be forced to adopt them," he said. "Outside of today’s anti-Sinclair doctrine, this would be considered a major victory for the consumer," he said regarding efforts in Phoenix to find out what viewers like.

Other commissioners, the FCC itself and Media Bureau and Sinclair declined to comment. Commission Mignon Clyburn's office referred us to her past statements on the media items the blog covered that included dissents. "NAB supports reform of outdated FCC rules that limit the ability" of "broadcasters to compete against massively consolidated national pay programming providers," a spokesman said. "As Commissioner O’Rielly’s blog so eloquently notes, all broadcasters -- and not just one company -- will benefit from a more reasoned and rational approach to media regulation.” The American Cable Association and American Television Alliance declined to comment.

O'Rielly went through each action that some said would benefit Sinclair. He said moves like allowing stations not to have a main studio in each outlet's community of license, allowing waivers so two top-four TV stations can be commonly owned in a market, and allowing newspaper/broadcast cross-ownership don't primarily help the company. "Sinclair owns no 'newspapers' of the kind that are captured by the FCC’s prior prohibition and, like most broadcasters, has shown no interest in investing in the medium," he noted. "Although the elimination of the main studio rule applies to all broadcasters, it’s relief is most beneficial to small and mid-sized radio stations."

On the 39 percent of the national market any owner of TV stations can reach, O'Rielly noted he backs changing the cap -- with caveats: "I have been abundantly clear that I don’t believe the Commission has been authorized by Congress via statute to change the so-called national ownership cap." Changes, with an NPRM "teed up," will likely lead to a court case, the commissioner wrote. "Because I am supportive of getting to court review, I will back changes to the existing cap," O'Rielly said. "I suspect my words and position will be used to undermine the Commission’s future case. Accordingly, it should be impossible for anyone to suggest with a straight face that this item represents some pro-Sinclair agenda."

Little Precedent

Longtime media watchers, including those not aligned with Sinclair critics, couldn't recall much precedent for such a communication by an FCC official, particularly with a deal pending. O'Rielly's footnote said "correcting the record" doesn't "attempt to engage in any discussion involving Sinclair’s pending merger application."

The best analog a broadcast lawyer, deal opponent or other expert could come up with was a 2016 FCC release headlined "Untrue: Religious Broadcaster Ban Rumor." The "rumor that the FCC has before it a proposal to not issue licenses to religious broadcasters still continues to circulate, more than 40 years after the Commission denied that," it said. Garvey Schubert broadcast lawyer Melodie Virtue, who recalled the release, hadn't "seen a similar blog from the FCC in connection with a particular company" besides the one from O'Rielly.

Critics of consolidation including Newsmax CEO Chris Ruddy and lawyer Andrew Schwartzman separately quoted Hamlet, saying O'Rielly "doth protest too much."

“Everyone in the industry knows the FCC is doing the bidding of Sinclair,” said Ruddy, sympathetic to the Coalition to Save Local Media, which opposes Sinclair/Tribune. Though O’Rielly may be correct that rule changes aiding radio don’t do much for Sinclair, the point is that the company's key items for the FCC such as the UHF discount, ownership rules and 3.0 were in the broadcaster's favor, he said. Though the new standard will benefit many broadcasters, Sinclair stands to benefit the most, Ruddy said.

O'Rielly's communication was "very unusual," said Schwartzman, representing challengers to FCC restoration of the UHF discount, another item the post discussed. "There is no question in my mind that the FCC has done a great deal to accommodate Sinclair. It is also quite true that many of the things that the FCC has done to benefit Sinclair also benefit other broadcasters." The agency "has been extremely accommodating to Sinclair for a very long time," long before the current Republican members were on the FCC, Schwartzman said.

Some of the criticism of the post is "missing the point," emailed O'Rielly Chief of Staff Brooke Ericson. "The Commissioner is not defending a company. He is defending the FCC actions and items that he has voted for.”

Ownership Cap

Some found it curious that O'Rielly says he doesn't think his agency can change the national TV ownership cap while saying he would back it. "Only Commissioner O'Rielly could proclaim from the hilltops that he will vote for a rule change he strongly believes is prohibited by law while accusing others of being inconsistent," said lawyer Cheryl Leanza, who works with the United Church of Christ Office of Communication.

"Who are you going to believe: Commissioner O'Rielly, or your lying eyes?" emailed Matt Wood, policy director of Free Press, which challenged the UHF discount in oral argument recently. "This current Commission majority has bent over backwards to bend every broadcast ownership rule standing in the way of Sinclair's ballooning size. They've even revived the UHF Discount rule that Chairman Pai acknowledges as technologically obsolete." On bringing back the discount after the last FCC junked it, O'Rielly said that "whether the discount is helpful for Sinclair is irrelevant, as we have the obligation to comply with what the law is, instead of what some people would like it to be."

Ex-Commissioner Michael Copps couldn't "recall such a blatant defense of a company, especially while the FCC allegedly is still deliberating the matter." That won't allay the "widespread skepticism" of those who think past commission actions were connected to Sinclair/Tribune, said Copps, now with Common Cause, which is part of the coalition against the deal.