(By Francisco Montero) By overturning the Third Circuit, the FCC’s 2017 rules including repeal of the newspaper-broadcast cross-ownership rule, will likely be reinstated. In 2017, the FCC eliminated the newspaper-broadcast and the radio-TV cross-ownership rules; allowed dual TV station ownership in markets with fewer than eight independent voices after the duopoly, created an opportunity for ownership of two of the top four TV stations in a market on a case-by-case basis (the FCC did not call it a waiver); eliminated attribution of joint sales agreements as ownership; and created an incubator program.
The FCC still has to deal with its pending Quadrennial Review of the ownership rules, which started in 2019. That proceeding largely looks at the radio rules – but also includes a review of the dual network rule (whether common ownership of 2 of the Top 4 TV networks should be permitted), the Top 4 rule for TV ownership (trying to decide if there are more definitive criteria that can be established as to when two of the top 4 TV stations in a market can be commonly owned); and whether there should be any rules limiting shared services agreements between non-commonly owned stations.
The FCC may ask for further comments on the issues raised in the Quadrennial Review. In the Quadrennial Review the NAB has proposed that there be no limits on AM ownership at all, nor any limits on ownership of radio stations in markets below the Top 75 rated markets. In the Top 75 markets, the NAB proposes that one owner be allowed to own up to 8 FM stations, and up to 2 more if it successfully incubates a new broadcast owner.
The new Democratic FCC could make other re-regulatory changes to the ownership rules. (As a reminder, the quadrennial review proceedings are also separate from any review of the FCC’s national television ownership cap and related UHF discount, both of which could be revisited in the new Democratic Congress or FCC).
Of course, any re-regulatory changes raise the question of whether the quadrennial reviews are intended to only be deregulatory in nature. Even if the 2017 rules are allowed to continue unchanged under a Democratic FCC, applicants could likely expect a tighter review of waivers of the top-four prohibition on television duopolies.
As to timing on the radio rules in the Quadrennial Review, if they take new comments, maybe by year’s end or Q1 2022. Otherwise, if they don’t reopen it then maybe the summer or Q4 2021. But likely not until Biden appoints a permanent FCC Chair and fills the vacant Democratic seat on the FCC.
Francisco R. Montero is a Partner with Fletcher, Heald & Hildreth, P.L.C. and can be reached by e-mail at [email protected]