See You in Court: The Sequel

FCC ownership rule proposal is attacked from all sides

By John Eggerton -- Broadcasting & Cable, 3/12/2012 12:01:00 AM

Last week, the National Association of Broadcasters asked the Federal Communications Commission to get rid of most—if not all—of its media ownership rules, like duopoly restrictions in radio and TV and the newspaper/ broadcast cross-ownership ban. But broadcasters are now privately acknowledging that the FCC is unlikely to do more than a repeat of its 2007 ‘deregulation lite’ revision, something that is drawing criticism from numerous parties and raising the threat of further litigation.

That 2007 change amounted to loosening the cross-ownership rule and leaving duopoly regs alone—at best—and perhaps tightening them by making joint service agreements attributable to local ownership limits. If so, the fate of these rules could be the same as the last ones, where both broadcasters and consolidation critics tied them up in court for years.

In comments last week, both sides said the FCC’s proposals were “arbitrary and capricious” violations of the Administrative Procedures Act, the same knock on the FCC’s indecency rules that has tied those up in legal proceedings for half a decade. That “arbitrary and capricious” chorus sang loud and in tune after last week’s FCC filings:

The NAB: “As an initial matter, it would be arbitrary and capricious to adopt disclosure requirements relating to sharing arrangements given the absence of any clearly identifiable public interest benefit supporting disclosure.” That was broadcasters’ effort to dissuade the FCC from requiring them to disclose joint agreements in their public files, something the FCC is proposing in a separate docket.

Gray Television: “It must be remembered that this is the same ‘voices’ test that the D.C. Circuit found arbitrary more than ten years ago.” This was Gray’s way of arguing that the FCC’s requirement that eight independent stations must remain in a market for it to be large enough to allow for duopolies should be jettisoned.

Common Cause and others: “It would be arbitrary and capricious to keep the current rule and yet allow the rule to be circumvented by allowing sharing arrangements that effectively give one station control or substantial influence over another station in the same DMA.” Those consolidation opponents argue that to allow joint services agreements is to allow loopholes in the ownership rules.

Also taking aim at the FCC’s proposed reforms were diversity groups, which argued that the commission was not doing enough to promote diversity of ownership, one of the issues the Court of Appeals had with the FCC’s 2007 attempt at rule revisions.

The Leadership Conference on Civil and Human Rights argues that unless the FCC does more on diversity per that court directive, it can’t relax any of its ownership rules.

And while the comments were in the quadrennial review of broadcast ownership rules, that did not stop cable operators from trying to turn it into a referendum on retrans—changes to which the FCC is considering in another proceeding.

Members of the American Television Alliance (ATVA), which includes major cable and satellite operators seeking retrans reforms, called on the FCC to consider whether networks handling retrans negotiations for their affiliates is a de facto transfer of control, and suggested it should ban stations from affiliating with multiple networks in a single market.

In its filing, ATVA member the American Cable Association said that joint services agreements between stations have reduced the amount of local news while boosting retrans coffers for broadcasters through joint negotiations.

The FCC is expected to vote on its ownership rule changes by late spring or early summer, at the earliest.

E-mail comments to jeggerton@nbmedia.com and follow him on Twitter: @eggerton