2018 QR Not Expected to Finish This Year

Broadcasters and their attorneys don’t expect the FCC to complete the 2018 quadrennial review before 2022, and said a substantive order is unlikely even if something is voted on before year’s end.

The agency is required by statute to start a new QR in 2022, and federal courts have taken a dim view of the agency rolling an unfinished QR into the following one. Even so, the FCC’s current 2-2 makeup, the few weeks remaining in 2021 and the uncertainty about when Chairwoman Jessica Rosenworcel will have a clear majority make completing the 2018 QR on time unlikely, officials said.

“This wouldn’t be the first time the quadrennial review got kicked down the road,” said Gray Television's Rob Folliard, senior vice president-government relations. “Not doing the quadrennial is the norm.” The FCC didn’t comment Friday.

The commission is widely expected to either not act, or possibly issue an order or public notice that doesn’t include any rule changes. “It would be very difficult to do anything before the end of the year,” said Sally Buckman, a broadcast attorney with Lerman Senter. “I don’t think anything will happen this year,” said Neuhoff Communications President Beth Neuhoff, saying she doesn’t expect any ownership deregulation under the current administration. Congressional action on the minority tax certificate would be “better than nothing,” she said.

The agency issued two PNs to build a record for the 2018 proceeding, but neither included concrete proposals. Numerous broadcast attorneys and an FCC official said the agency will likely still need to seek comment on actual changes to rules before issuing a substantive order. The FCC's Republicans are considered unlikely to support a QR order that doesn’t include some form of deregulation, so it likely couldn’t be approved until the agency has a majority of Democratic commissioners.

The FCC should “let the dough proof a while” on the 2018 media ownership review, Commissioner Nathan Simington told the Massachusetts Broadcasters Association Friday. “With a new incoming Commission, we risk whipsawing back into the pre-Pai world, or, worse, ratcheting further back in the other direction. We risk taking our dough and baking something that is flat, dense, and all around unappetizing,” Simington said, per prepared remarks. “That is something we should not do.” Ajit Pai led the FCC under the Trump administration.

It's unclear when FCC nominee Gigi Sohn will be confirmed (see 2111100078, and it's widely expected that Rosenworcel would prefer not to vote the QR until she has a clear majority. “The big picture is we need to get all the seats filled,” said United Church of Christ Office of Communication attorney Cheryl Leanza, who argued before the 3rd U.S. Circuit Court of Appeals in the Prometheus IV challenge of the previous QR.

Even when Rosenworcel has a full commission, she will face a shortened time frame with “a fully-functional FCC,” Leanza said. That could limit what the agency focuses on after the chairwoman has a majority. With uncertainty about the confirmation timeline, the nominations don’t “in the near term provide a lot of clarity about anything,” Tegna CEO Dave Lougee said in a recent investor call.

Public interest commenters in docket 18-349 urged the FCC to focus only on the collection of broadcast ownership data in the 2018 QR, to set the stage for more decisive action in 2022 (see 2109030064). There’s enough material in the record for the FCC to do that without further notice and comment, but an order on data collection is unlikely until Sohn is confirmed, Leanza said.

“We just have no information” on the effects of broadcast ownership deregulation on minority ownership, said Caitlin Ring Carlson, associate communication professor at Seattle University. With a Democratic majority, there’s likely to be “a little more appetite to at least test the impact of these major changes,” she said. Carlson has pushed for the FCC to roll the 2018 QR into the 2022 to make time for data collection. Industry lawyers said the agency is more likely to simply not act on the QR than to formally roll it into the 2022 process, because the 3rd Circuit took a dim view of the FCC rolling the 2010 review into the 2014 version.

Broadcasters are likely to challenge in court any QR order that doesn’t include some form of ownership deregulation, Folliard said. An industry official said court challenges are also likely if the FCC attempts to fold the 2018 QR into 2022's. NAB and several broadcasters urged the FCC to act swiftly on the 2018 review (see 2110040051). If the agency doesn’t issue a 2018 QR order in 2021, it likely has some “wiggle room” to do so in early 2022 because of the slow speed of the federal courts, said Leanza. The Supreme Court’s decision on the Prometheus IV appeal (see 2104010067) explicitly affirmed deference to the agency on the QR, Leanza said.