(By John Garziglia) While the FCC is ostensibly an independent agency, its regulatory moods and policies toward radio broadcasters do change with White House transitions.
The good news for broadcasters is that the day-to-day broadcast station regulatory work at the FCC is not usually affected by which political party heads up the Executive Branch. The GOP is often thought to be the more deregulatory of our two major political parties. But, it is always worth remembering that the FCC’s most intense media indecency enforcement occurred during Chairman Martin’s tenure with a GOP administration.
There will be intense speculation in the coming weeks on the new administration’s choice of the FCC chair which is appointed by the party in power. Current Commissioners Jessica Rosenworcel and Geoffrey Starks, and former Commissioner Mignon Clyburn, are all early favorites. History tells us that speculation at this point on the identity of the future FCC chair as being one of these three individuals carries with it 1 in 4 odds, with the remaining possibility of the chair being “someone else”.
The most significant radio broadcast policies likely to be transformed under a Biden/Harris administration are the local radio ownership rules. Currently, the fate of radio ownership rules is under FCC consideration in the 2018 Quadrennial Review with FCC action effectively stalled by Supreme Court’s grant of Certiorari in Prometheus IV.
It is unlikely that a new Democratic FCC chair and the two current Democratic commissioners will favor any relaxation of radio ownership rules. But the Supreme Court’s review in Prometheus IV could be a wild-card with unexpected ramifications for the FCC. The Supreme Court’s review in Prometheus IV could impact the FCC’s ownership diversity policies.
The FCC has long vacillated in its attempts to bring broadcast station employment and ownership to parity with the US population. Many radio broadcasters maintain that the FCC’s EEO employment outreach rules are burdensome and nonproductive toward the FCC’s stated goals. Last year, a number of broadcasters expressed this viewpoint in Comments and Reply Comments filed in response to the FCC’s June 21, 2019 EEO Compliance and Enforcement Notice of Proposed Rulemaking.
The Biden/Harris administration is likely to expect that remedial measures to counter systemic racism and sexism will be afforded a greater priority at the FCC. The diversity of broadcast station ownership issue may now be, however, beyond the FCC’s control with Prometheus IV at the Supreme Court.
Even though the central issue in Prometheus IV is the 3rd Circuit’s decades-long impounding of FCC ownership deregulation, the FCC’s Petition for a Writ of Certiorari, argues that the 3rd Circuit almost exclusively relied upon “minority and female ownership as a threshold, dispositive consideration in all FCC quadrennial-review proceedings [which] effectively displaced the Commission’s traditional approach to regulating in the public interest …”.
If the Supreme Court re-writes what the FCC may do with respect to diversity initiatives, that may result in an opinion that goes beyond administrative law quibbles. As speculated in Radio Ink’s October 5, 2020 Prometheus IV … III … II … I … Cert Granted!, if a conservative-leaning Supreme Court bases its eventual decision on the exclusionary race and gender focus of the 3rd Circuit, the FCC may be left with fewer regulatory powers to combat systemic racism and sexism.
A radio broadcast area with a possibility of stricter enforcement in the new administration is sponsorship ID. The FCC at the behest of Democratic congressional representatives released a Notice of Proposed Rulemaking on Sponsorship Identification Requirements for Foreign Government-Provided Programming seeking to compel radio and television stations to broadcast a conclusory statement that certain broadcast content is on behalf of the government of a foreign nation without regard to the journalistic independence of the actual entity that is producing or providing the programming content.
The apparent bi-partisan push to modify Section 230 of the Communications Decency Act with respect to internet service providers has the potential to spill over into the regulation of broadcast stations. The calls for government intervention in the balance, or lack thereof, of presentation and editing of third-party internet content appears to be remarkably similar to the now-defunct broadcast station FCC Fairness Doctrine. There is a certain irony to both parties pushing for a greater governmental oversight of internet speech. It is possible that the bi-partisan kick-start to the speech-quashing effort may spill over into new restrictions on incendiary radio and cable programming.
On a lower bureaucratic level, a new FCC chair under a Biden/Harris administration will have the power to install new FCC bureau chiefs. The functioning of the FCC’s Media Bureau, and the Audio Division below it, doing the day-to-day regulation of radio are, however, unlikely to experience any dramatic policy shifts as a result of such appointments.
Nonetheless, there are likely to be subtle changes in priorities. Radio and television stations are now in the midst of a license renewal cycle. Broadcast stations being considered for license renewal could find a greater emphasis on the content of their issues/programs lists in online public files as a public interest metric, in the same way that Radio Ink’s July 27, 2020 FCC Politically-Incorrect Inaction emphasized the current FCC’s fervor for an immediate upload to the FCC online public file of political file materials.
No matter which party occupies the White House, radio broadcasters must remain vigilant on Capitol Hill and at the FCC in protecting their interests. To do so, one of the industry’s priorities should be to urge the both parties’ political representatives to install as the FCC chair and as one or more commissioners, individuals who, if they are not broadcasters, at least understand the business and processes of broadcasting.
Our industry was fortunate in the past several years to have Chairman Pai and Commissioner O’Reilly, both of whom had a demonstrable knowledge of, and appreciation for, the essential and unique role that radio broadcasters serve. In communicating with our new administration, radio broadcasters must insist that their state and national broadcasters’ organizations use their collective powers to promote the selection of such broadcast-centric leadership at the FCC, not necessarily for less regulation, but rather in a quest for wise and productive FCC policy.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or [email protected]