Media Bureau Rejects NCE Appeal on Delegated Authority, Pai and O'Rielly Attack Decision
The FCC Media Bureau issued an order Wednesday denying reconsideration petitions that were made to the full commission and without providing any notice of the action to Republican commissioner offices, according to a released statement from Commissioners Ajit Pai and Mike O'Rielly which followed our inquiries and bureau documents. “This smacks of midnight regulation” said broadcast attorney Todd Gray of Gray Miller, who represents a group of more than 60 noncommercial TV and radio stations that appealed to the full FCC a rule change that would require the stations to provide certain additional personal information on ownership forms (see 1601200064). “I find it bizarre that the Media Bureau has the delegated authority to act on a petition addressed to the full commission,” Gray said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The original FCC ruling “no longer enjoys the support of the majority of Commissioners -- nor is there a majority that supports today’s Media Bureau decision -- so it was wrong for the Bureau to bypass Commissioners and reaffirm these reporting requirements unilaterally,” said Pai and O'Rielly in a joint statement Wednesday. “Making matters worse, the Bureau gave no notice to Commissioners of its decision, leaving our offices to find out about its order from the press,” the commissioners said. That “basic lack of comity” is “especially unfortunate during a transition between Administrations,” Pai and O'Rielly said.
Pai and O'Rielly encouraged the public broadcasters to file for the matter to be reviewed under the next FCC. “The good news is that today’s decision need not be the final word,” they said. “It is pointless to require board members of NCE [noncommercial educational] stations to report sensitive personal information (like the last four digits of individual Social Security numbers) to the Commission and will only serve to discourage these volunteers from serving their communities,” the commissioners said. “We hope that we will be in a position to respond to their call soon.”
With the agency about to change leadership and Pai and O'Rielly having spoken against the original order, rejecting the petitions on delegated authority is especially egregious, and the decision is very likely to be overturned on review, Gray said. “This isn't the last you're going to hear about this,” he said, saying the non-commercial stations will appeal the order to either the FCC or the courts. The bureau's decision “fails to recognize and reflect the central fact that the public ownership and governance structures of non-commercial broadcasters are significantly different than those of commercial broadcasters,” emailed America's Public Television Stations CEO Patrick Butler. “We are hopeful that the full Commission will review and reverse this Media Bureau order in the coming year.” The bureau didn't comment on the order's likelihood of being reversed.
Under the next FCC, the NCE objections are likely to get more traction, Gray said. Pai dissented in part from the original order based on the concerns raised by NCE stations. “The case for requiring NCE board members and officers to obtain a reliable unique identifier from the Commission is incredibly thin,” said Pai last year. O'Rielly didn't dissent, but criticized the inclusion of non-commercial stations as radically stretching the definition of ownership.
The rule in question was issued last January and changed the way the commission issues FCC registration numbers (FRNs) and collects Form 323 ownership data. It requires broadcasters to use special restricted-use FRNs within the commission’s registration system, and as part of that process requires the board members and officers of licensees, both commercial and non-commercial, to submit personal information to the FCC. NCE stations opposed the rule change because of their ownership structure, which is very different from commercial stations, Gray said. Governing board members of universities and other nonprofit entities associated with NCE stations are seen as likely to respond negatively to station managers asking for their personal ID information, and NCE groups believe the rule will discourage involvement in public TV.
In Wednesday's order, the bureau said the NCE groups failed to show evidence that the rule would negatively affect them and said the importance of collecting ownership data merited the changes. “We deny the petitions for reconsideration because they repeat arguments that the Commission fully considered and rejected in the 323 and 323-E Order and they identify no material error, omission, or other reason warranting reconsideration,” the bureau said. The lack of a reason for reconsideration allows the bureau to reject the appeals, though they were made to the full commission, the order said. "The Commission amended its rules in 2011 to delegate authority to the relevant bureau or office to dismiss or deny petitions filed in either rulemaking or non-rulemaking proceedings if the petition 'plainly does not warrant consideration by the full Commission,'” the order said. Rejecting the order on delegated authority demonstrates the bureau's “disdain” for the NCE position, Gray said.