From what we hear in Washington these days, FCC chairman Tom Wheeler is making his mark and standing his ground. However, some broadcasters are suddenly gaining a new appreciation for former chair Julius Genachowski’s reputation for regarding his moves with Hamlet-like over-consideration.
Multiple sources have told B&C Wheeler is taking a serious, personal look at sharing agreements and is broaching little argument with the conclusion that they are a way to circumvent ownership rules that need reining in.
At the FCC’s March open meeting, sources say Wheeler plans to tee up an item making joint sales agreements above 15% of a station’s ad time attributable as ownership interest, so they would count toward the 39% national ownership cap or duopoly restrictions.
Radio has been under similar rules for a couple of decades. But a couple of decades ago, satellite TV was a gleam in Charlie Ergen’s eye and the Web was only a few threads old.
In any event, if the FCC is going to regulate, it ought to do so by rulemaking and comment. Broadcasters feared that was not the case with a recent approval where the FCC seemed to apply a blanket prohibition on sharing deals by assuming that any such agreement would be de facto ownership—something it has yet to make a general policy.
That had many broadcasters fearing it was Wheeler signaling he was going beyond case-by-case consideration to a blanket prohibition. That, a senior FCC official assured B&C, was not the case.
The deal was a complicated one, having to do with a sale out of bankruptcy and a trust. The FCC official said that the language came from attorneys for the unsecured creditors in the bankruptcy and not the FCC chairman’s office, with the Media Bureau then seeing and approving the language. We’ll call that some comfort. We’ll also say that broadcasters had every right to be concerned, given the reception their arguments for sharing arrangements have gotten at the commission.
But the news wasn’t all onesided on the chairman’s decisions last week. Wheeler chose not to throw the Title II bomb into the net neutrality proceeding, taking what appears to be a reasonable approach to restoring the rules given the court’s direction on the FCC’s authority to regulate broadband.
We wish Wheeler had closed the Title II docket, but it’s insurance against a court challenge to new rules, which he plans to tie to the FCC’s authority to ensure deployment of broadband in a reasonable and timely fashion.
Wheeler took heat from proponents of net neutrality protection, for whom nothing but Title II will do. But he was also criticized by those who argued that any attempt to return the rules was a job killer and innovation chiller, and a distraction from other business. For now, he seems to have struck a workable balance.
Wheeler said he will seek lots of input on how he can tie the non-blocking and nondiscrimination rules to that authority without having to go to the common carrier route. That input should include stakeholders at the table when the new rules are crafted.