Prometheus Court Vacates FCC’s JSA Ban; Asks FCC for New Ownership Rules by Year-End
The U.S. Court of Appeals for the Third Circuit today issued a decision vacating the FCC rule effectively banning television Joint Sales Agreements (“JSAs”) and threatened to throw out all of the FCC’s remaining broadcast ownership rules if the FCC does not complete its required “quadrennial” review of those rules by the end of 2016.
The case returned broadcasters and advocacy groups to this court for its third major decision on the FCC’s broadcast ownership rules since 2004. This time around, the case addressed three issues: public interest groups’ request that the court require the FCC to adopt a new definition of “eligible entity” aimed at promoting female and minority broadcast ownership; broadcasters’ request that the court vacate all broadcast ownership rules due to the FCC’s failure to complete the statutorily mandated quadrennial reviews of those rules; and broadcasters’ request that the court vacate the FCC’s rule making television JSAs an attributable ownership interest.
The first two of these issues date back to the FCC’s 2002 biennial review of its ownership rules. Congress mandated that the Commission conduct periodic reviews of its broadcast ownership rules, originally every two years, but later extended to every four years, in the 1996 Telecom Act. The Commission undertook reviews in 2002 and 2006 that resulted in orders that were appealed to the Third Circuit. Thereafter, the Commission consolidated each still-pending quadrennial review with the succeeding one, with the result that the FCC has not concluded a review or updated its ownership rules since 2006.
In its 2002 biennial review, the FCC modified certain of its broadcast ownership rules, including changing its definition of a radio market, with the result that its ownership rules for radio stations were actually more restrictive. The FCC grandfathered existing radio station combinations that would have exceeded the new limits, but required those combinations be broken up and brought into compliance with the new standards if sold. To encourage female and minority ownership, the Commission excluded “eligible entities” from the new rules, allowing those meeting the definition to acquire a combination that would otherwise have to be split up under the revised radio ownership rules.
Other similar FCC rules also rely on the definition of an “eligible entity”, making that definition central to the FCC’s efforts to increase female and minority ownership. The FCC has been using a definition of “eligible entity” based on revenue that was developed by the Small Business Administration, arguing that the test will survive judicial scrutiny because it is not based on race or gender. However, advocacy groups have countered that there is no evidence that the definition actually enhances female and minority ownership, as opposed to small business entity ownership. The Third Circuit agreed in 2011, finding the Commission’s use of the definition to be arbitrary and capricious. However, since the Commission has not completed its required quadrennial reviews, the definition has remained in place, contrary to the Third Circuit’s order that the FCC adopt another definition.
Five other ownership rules, the local television ownership rule, the local radio ownership rule, the newspaper/broadcast cross-ownership rule, the radio/television cross-ownership rule, and the dual network rule have similarly gone without an update since 2006. The court lamented that this lack of review has left broadcasters subject to rules that are decades old, preventing parties from taking advantage of deregulatory options the FCC has considered, but not acted on. It specifically highlighted the continued existence of the newspaper/broadcast cross-ownership rule, which was created in the 1970s. The FCC determined more than a decade ago that the rule is no longer necessary, but it remains on the books because the FCC has not successfully concluded the required quadrennial reviews to eliminate it.
The court dissected the rationales the Commission espoused to justify rolling each quadrennial review into the next one and found that they did not justify the years-long delay. It stopped short, however, of granting the requested invalidation of all broadcast ownership rules, finding that the delays do not yet justify doing so. Instead, the court mandated that the Commission go to mediation with the public interest groups to set a timetable for defining “eligible entity”, and based on a promise by the FCC that the Chairman would circulate a Notice of Proposed Rulemaking for revised ownership rules by June 30, gave the agency until the end of the year to take comments, reach a decision completing the 2010 and 2014 quadrennial reviews, and issue new broadcast ownership rules.
Against this backdrop, the court considered the third issue before it—broadcasters’ challenge to the Commission’s decision to attribute television JSA arrangements that had been routinely treated as non-attributable before. The FCC adopted this rule of its own accord in 2014, arguing that JSAs involving more than 15% of another in-market station’s airtime gave one station influence approximating ownership over the other station, thereby enabling it to evade the limitations of the Commission’s local television ownership rule. Broadcasters argued, however, and the court agreed, that the Commission could not “expand the reach” of the local television ownership rule without justifying the rule’s continued existence in the first instance in a quadrennial review.
The court’s decision sets in motion activity on a number of fronts. First, the Commission, while in the midst of its first-ever broadcast incentive auction, will have to participate in mediation with public interest groups. Second, the Commission will have to quickly finalize a Notice of Proposed Rulemaking that it represents has been in the works for some time. Third, it will have to collect comments and reply comments, perhaps complete new ownership studies, analyze the record these actions create, and in the next six months, conclude proceedings that have been underway for more than 10 years.
If this timeline is to be accommodated, comment periods will have to be short, extensions of comment deadlines may not be available, and resources the Commission might put toward other activities may need to be reallocated. Despite having ten years since the 2006 quadrennial review, reasoned decision making may have to give way to rushed decision making.
As a result, broadcasters should start prepping now to participate in the proceeding. By necessity, it will be fast-moving, and strange things can happen in fast-moving proceedings. Getting the right result in this quadrennial review will require a lot of effort, and summer vacation just got a lot shorter.