National Association of Broadcasters President Gordon Smith and Rick Kaplan, NAB auction point man and former chief of staff to Mignon Clyburn, tag teamed a meeting with Clyburn Wednesday to argue that drawing a bright line rule against TV JSAs or limiting joint retrans negotiations were arbitrary and capricious, constituted wielding a sledgehammer where a scalpel is needed (in the case of JSAs) and was manifestly unfair (retrans negotiation limits).
According to an ex parte notice, they argued the FCC has not studied the impact of the JSA move on localism and diversity, instead making "sweeping generalizations" about JSAs that make the proposal arbitrary and capricious--which would also make the move a violation of the Administrative Procedures Act.
And throwing FCC Chairman Tom Wheeler's focus on case-by-case determinations, they said that rather than punish the whole industry, the FCC could simply address "purported" bad actors on a case-by-case basis.
As for limiting joint retrans negotiations, NAB said that would be picking winners and losers, since cable ops can jointly negotiate. NAB TV Board chair Marci Burdick made the same point on the Hill this week in a hearing about satellite legislation that also includes a prohibition on coordinated retrans negotiations.
"The draft order will only harm those two essential values enshrined in the Communications Act," they told Clyburn. "If the Commission is serious about promoting localism and diversity, it should work with the broadcasting industry to find the most effective ways to do so. The current course betrays those values and hinders broadcasters from providing the unique local and diverse content no other industry delivers."
Wheeler has scheduled a March 31 vote on the items. He circulated them to the other commissioners March 10.