FCC to Court: UHF Stay Request Flunks Tests

Commission says petitioners unlikely to succeed on merits or suffer irreparable harms absent stay
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FCC lawyers have told a D.C. federal court that opponents of the April 20 decision to reinstate the UHF discount have not met the high bar for an emergency stay of that decision. 

The discount means that UHF TV station ownership only counts for half of their audience reach toward the 39% national ownership cap. 

The U.S. Court of Appeals for the D.C. Circuit has granted an administrative stay of the June 5 effective date of the return of the discount but only so it can review the FCC's defense to an emergency stay request sought by opponents of the decision and the response from those opponents, which include Free Press and Prometheus.

In opposing the emergency stay, the FCC says the commission simply concluded the agency had erred in a previous order—under then-chairman Tom Wheeler—that repealed the discount without also adjusting the cap. It did grandfather ownership groups for which the change would have pushed them over the 39% limit, though that grandfathering would not extend to sales of those stations. 

Related: NAB Asks to Intervene for FCC in UHF Discount Court Case

FCC chairman Ajit Pai said after voting to reinstate the discount that the FCC would later this year begin considering both the cap and the discount, then would make a decision about whether to eliminate the discount, which Pai has conceded dates from an analog age time when UHF station signals were the weaker—the case is reversed in digital.

The high bar for granting an emergency stay is a multi-part test, and the FCC says petitioners have flunked them all.

First, it said, the petitioners are not likely to succeed on the merits.

"The Reconsideration Order provided a detailed and reasoned explanation for the Commission’s conclusion that the agency erred in the Repeal Order as a matter of law and policy by failing even to consider the impact of repealing the UHF discount on the national cap," the FCC told the court. "Petitioners have not come close to making the extraordinary showing necessary to warrant staying the Reconsideration Order pending review." 

Second, said the FCC, they are not likely to suffer irreparable harm absent a stay. Free Press et al. had argued that the harm would be the mergers—like a Sinclair-Tribune—that would now be allowed under the restored discount, but the FCC says that is a speculative future "chain of events" and the "harm" a return to the status quo of three decades before it was changed last November by the Wheeler commission.

Third, the balance of factors, including the public interest, is against the stay since the FCC has concluded that its continuation is both unlawful and unwise.

Free Press et al. have until June 7 to reply to the FCC and broadcasters who are intervening on the commission's behalf.

(Photo via Tori Rector's FlickrImage taken on July 21, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)

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