FCC Sets Comment Deadlines on 39% Cap

Will give parties until late March to weigh in on ownerhsip limit

The FCC has set the deadlines for comment on its proposed comprehensive review of the 39% limit on a TV station group's national audience reach, which includes whether the FCC should eliminate the UHF discount. Comments are due Feb. 26 and replies March 27.

At issue is whether broadcast groups will be allowed to heavy up in the fact of competition from national programmers including pay TV operators and over-the-top distributors with no such limits.

A politically, and philosophically, divided FCC voted Dec. 14 to launch a review of the FCC's national 39% broadcast audience reach cap. (It was as busy meeting, also including the FCC's rollback of net neutrality regs).

TV station group owners cannot own stations that reach more than 39% of the national audience, with waivers in some circumstances.

The FCC is looking at whether it can modify the cap, which was created by Congress, and if so, whether it should be lowered or, more likely under this FCC, raised or eliminated altogether given the increasing programing and technological options for accessing content.

It also asks whether to retain the UHF discount, which allows station groups to count only half their UHF station audience toward that cap, and if not, should the cap be adjusted.

"We need to take a holistic look at the national cap rule, including the UHF discount," chairman Ajit Pai said of the item. "The marketplace has changed considerably due to the explosion of video programming options and various technological advances that have occurred since the cap was last considered in 2004.  So we need to examine whether our rules should change accordingly.  That’s an important discussion that will be informed by the facts in the record—not anything else."

The item drew no tentative conclusions. Chairman Pai said the item was all about developing a record and could not say when any action would be taken.

The vote was 3-2, with the Democrats strongly opposing. But at least one Republican also had issues with the FCC's authority to take action.

Commissioner Michael O'Rielly said he still didn't think the FCC had the authority to modify the congressionally mandated cap--he is a former congressional staffer who worked on the legislation. O'Rielly said Congress would need to weigh in ultimately, but he supported the FCC review since that congressional "weigh-in" did not look like it was forthcoming.

The FCC under Chairman Tom Wheeler eliminated the cap, but Chairman Ajit Pai restored it, saying it had to be considered in tandem with the 39% cap, which the FCC is doing in the review launched last month.