FCC Won't Roll 2018, 2022 QRs Together: Bureau Staff

The FCC is statutorily required to handle the 2018 and 2022 quadrennial reviews separately, said Media Bureau staff at an FCBA virtual panel Thursday. The law says the FCC “shall” review broadcast ownership rules every four years, and that means “this is something we must do,” said MB Attorney-Adviser William Durdach, saying the law doesn’t allow the agency to “roll a quad into another quad.” Stakeholders speculated the agency could seek to skip the 2018 QR (see 2112200018).

“Our view is in line with the FCC’s view that the agency doesn’t have the authority” to skip the late 2018 QR before beginning the 2022 iteration, said NAB Assistant General Counsel Emily Gomes. “The commission should act quickly to conclude” the 2018 proceeding, she said. The 2018 and 2022 proceedings “are obviously entangled” said Free Press General Counsel Matt Wood, calling the matter “an administrative law professor’s dream.” Broadcast industry officials have speculated broadcasters could pursue legal action against the FCC over the delay in completing the 2018 QR. FCC Chairwoman Jessica Rosenworcel would say only that the record is still being reviewed, when queried by reporters Thursday.

Durdach said there's “no presumption” in the law requiring QRs to repeal rules or make them less stringent, despite NAB arguments that the intent of the review’s creation was that rules be relaxed. Durdach said the 2020 Supreme Court Prometheus IV decision is “very good” for the FCC because it emphasized judicial deference to commission decisions. Local ownership rules are on the table for the upcoming reviews, but the newspaper broadcast cross-ownership rule and the national cap aren’t part of the proceeding, Durdach said.

The FCC needs to act quickly to do away with ownership limits to allow broadcasters to compete with much larger tech companies and preserve local news operations, said Gomes and Gray Television Senior Vice President-Government Relations and Distribution Rob Folliard. “The media and advertising landscape has been completely upended by digital tech,” Gomes said.

Without economies of scale, broadcasters can't fund local news, and broadcast news is the last remaining local news in many communities, Folliard said. He compared retention of the top four prohibition to the FCC passing a rule that small communities aren’t allowed to have local news. He said Gray’s recent buys of stations from Quincy and Meredith occurred because the families running those companies realized competing without scale was impossible. Folliard said the FCC doesn’t have the authority to prohibit broadcasters from getting around the top-four prohibition by hosting additional networks on multicast channels or low-power TV stations. “I very much doubt the FCC has the authority to regulate programming decisions,” Folliard said.

Due to the growing scale of the communications industry, “no federal body” has more need to act to “preserve racial justice,” said Danielle Davis, Multicultural Media, Telecom and Internet Council policy counsel. MMTC wants the FCC to act on a host of proposals, including C4 FM stations, geotargeted radio and increased equal employment opportunity enforcement, she said.

​​​​​​​Gomes said “structural rules” such as existing ownership restrictions failed to increase diversity, and the agency should focus on other strategies. National Association of Black Owned Broadcasters President Jim Winston said the structural rules should be preserved, and backed up with additional efforts such as the minority tax certificate. Every commenter endorsed resurrecting the certificate, which would take congressional action. Now that Congress appears poised to confirm an additional commissioner, the groups might be able to focus their collective lobbying on the certificate, Wood said.