It could be a busy summer for broadcasters, filled with stuffy but seemingly required courtroom adventures; specifically, taking on the FCC at the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over challenges to commission decisions.
The National Association of Broadcasters has already filed suit against the FCC over the Media Bureau’s new guidance on shared services agreements; the FCC is taking a dim view of ones with associated financial elements that it suggests smack of endruns around local ownership caps.
The NAB is likely to file suit against the FCC’s decision to use changed OET-69 methodology/software to calculate TV station coverage areas after the incentive auction, and it has registered its displeasure with the commission’s decision to make joint sales agreements of over 15% of a brokered station’s weekly ad time attributable as ownership interests.
Then there is the FCC decision to prevent coordinated retrans among the top four stations in a market. Broadcasters aren’t fond of that either.
While the NAB has not declared itself yet on OET-69, it has signaled the decision does not square with the legislation creating the auction. We anticipate the association will indeed take the commission to court over that issue.
An NAB representative would not comment on the possible legal challenges beyond the one already lodged.
But in his speech to the NAB convention, president Gordon Smith pointed out that at the same time the FCC was pushing stations to share channels in order to free up spectrum for the auction, it ruled against JSAs. “So, let’s get this straight,” Smith said, “sharing was good until the FCC deemed it wasn’t, and now sharing is good again. But when will they say it isn’t?” Sounds like building a case for ‘arbitrary and capricious’ from here.
We encourage broadcasters to use all reasonable means to insure that their interests in being able to compete for eyeballs, ad dollars and a piece of the media future are protected.