D.C. Circuit's Show Cause Order on FCC Not Seen Changing QR Timetable

The U.S. Court of Appeals for the D.C. Circuit show cause order Thursday giving the FCC 90 days to complete its 2018 quadrennial review was characterized Friday by NAB as a “big win” in an email to members. But broadcast and public interest attorneys said the agency was likely already on a path to approve the QR in that timeline.

Ninety days gives the FCC almost to the end of 2023 to approve the rule, noted United Church of Christ Media Justice Ministry attorney Cheryl Leanza, a frequent NAB critic. “This was probably already the timetable,” she said, calling the show cause order “a Pyrrhic victory.”

The order doesn’t grant NAB’s petition for mandamus relief compelling the FCC to act, but defers it for 90 days. If the FCC hasn’t completed the review by then, the agency must present evidence to the court on why the petition shouldn’t be granted. “Today, broadcasters’ service to communities across the country is imperiled by the Commission's failure to modernize its decades-old media ownership rules,” said NAB CEO Curtis LeGeyt in a statement. “This ruling is an important step to compel a review that the record makes clear is necessary to allow local broadcasters to more fairly compete and deliver our trusted, locally-focused programming in a transformed media marketplace.”

The FCC is "reviewing the court’s guidance and considering next steps," said a spokesperson.

FCC Chairwoman Jessica Rosenworcel was expected to make the 2018 QR an early priority of the commission as soon as she had a Democratic majority (see 2306020056). October’s meeting agenda doesn’t include a QR item, but attorneys said they still expect an item soon, possibly for the November agenda. The show cause order "doesn’t change anything,” said University of Minnesota media law professor Christopher Terry.

The order may not change the FCC’s plans but is still a positive for broadcasters, said Rob Folliard, Gray Television senior vice president-government relations and distribution. It gives broadcasters certainty that an order is coming and is an opportunity to demonstrate “how the FCC has been ignoring its obligations,” he said. After the FCC issues a QR order, that order is certain to be immediately challenged in court, as happened with every other quadrennial review, he said. “This is all gonna be back in front of the D.C. Circuit in six months,” he said.

NAB filed its petition for mandamus in May, when recently sworn-in Commissioner Anna Gomez had yet to be nominated, Folliard said. If her confirmation had failed as the previous nominee Gigi Sohn’s did, a similar show cause order might have put the FCC in a difficult position, he said. Mandamus petitions are generally considered long shots and are often not acted on by the D.C. Circuit, making Thursday’s order an unexpected boon for NAB, an attorney said. Despite the court’s actions, its time frame shows it isn’t treating NAB’s petition as an emergency, said Leanza. “They took months to act and then gave the FCC 90 days.”

The expected federal shutdown could prevent the FCC from meeting the court’s timeline, attorneys on both sides of the matter said. Though the FCC said it will be able to operate normally until Oct. 20, an extended shutdown beyond that could keep the agency from penning a QR order. The D.C. Circuit would likely view a prolonged shutdown as a legitimate reason for not meeting the 90-day deadline, attorneys said.

When the FCC does issue a 2018 QR order, it isn’t expected to involve many changes to broadcast rules. The 2018 QR NPRM didn’t include any tentative conclusions, and broadcaster and FCC officials said they wouldn’t expect much to change with a draft QR order. Any major shifts on issues such as radio subcaps would likely have to come from the also-delayed 2022 quadrennial review, broadcasters and public interest attorneys said. The FCC told the D.C. Circuit it won't complete the 2022 QR ahead of the 2018 revision (see 2308080062).