Broadcasters and MVPDs Take Aim at FCC Rules in 'Delete' Filings

NAB’s 145-page comment submission includes a page with a large red stop sign after the section on ownership rules. “THE FCC SHOULD NOT PROCEED” to adopt NAB’s other ideas for deregulation until it eliminates the national and local TV ownership caps and modernizes radio ownership, said the filing, which was echoed in submissions from Gray, Beasley, Nexstar, Sinclair and others. Broadcasters said they want the FCC to nix public file requirements, equal employment opportunity audits, rules limiting FM translator content, and many others. “Eliminating or reforming those rules will not ultimately bear significant fruit unless the Commission immediately addresses its farcical restrictions on broadcasters’ local and national scale,” NAB said.

In calling for removing ownership restrictions, broadcasters replayed the same arguments about competition and the viability of stations that they have used for years, but they also said that recent U.S. Supreme Court rulings mean ownership limits are outside the FCC’s authority. Its “structural ownership rules simply cannot stand up to modern Supreme Court standards for agency rulemaking and should be deleted for that reason alone,” said Gray Media, referencing the major questions doctrine and the end of Chevron deference. “The Communications Act says nothing about structural ownership rules like the ones maintained by the Commission.”

Broadcasters “are still subject to a regulatory regime with origins in the 1940s, while their competitors are not and have never been,” Nexstar said. Gray said the rules “are affirmatively dangerous to the continued vitality of local broadcasting’s most important function of delivering local news and information.” Beasley Media similarly argued that the current ownership limitations “are depriving radio of the investment it needs and hampering its ability to innovate and develop additional local content and digital offerings.” Sinclair said the FCC “should move promptly to complete its 2022 Quadrennial review of broadcast ownership rules and adopt long-overdue updates that are necessary to enable broadcasters to compete on a level playing field with Big Media and Big Tech.” Sinclair and NAB both pointed to facilitating the ATSC 3.0 transition as another important step the FCC could take to aid broadcasters.

Few of the broadcaster filings touched on the FCC’s current news distortion proceeding on CBS, but NAB, the Foundation for Individual Rights and Expression and the American Action Forum’s Jeffrey Westling said the news distortion rule should be deleted. The news distortion policy “impermissibly chills speech and discourages coverage of important public issues,” said NAB, which submitted similar comments in the CBS proceeding. “Because the FCC has never clearly defined what constitutes ‘news distortion,’ it is unconstitutionally vague and contrary to Supreme Court precedent,” it added. “The policy’s mere presence creates an enduring risk that it could be revived or applied inconsistently, particularly under political pressure,” said FIRE. “That risk is no longer hypothetical.” FIRE called for the FCC to do away with all content-specific rules, such as indecency restrictions. The news distortion rule and those against broadcast hoaxes “could be misused by future administrations that seek to punish broadcasters that provide negative coverage of those administrations,” Westling said.

Public File Rules

Many broadcaster submissions urged that the FCC relax or eliminate online public file and other reporting requirements. For example, the agency “maintains many rules that require broadcast stations to comply with make-work paperwork requirements that offer no benefit to the public,” NAB said. “These requirements force broadcasters to generate a deluge of paper that the public very rarely looks at or, at a minimum, can easily access in other ways that would lessen the burden on resource-starved broadcast stations.”

Numerous entities took particular aim at filings such as quarterly issues/program lists and biennial ownership reports. “Without a doubt, from a purely paperwork perspective, the Quarterly Issues Programs Lists requirement is one of the more burdensome Public File obligations,” said a joint filing from state broadcaster associations. The FCC “should eliminate from the public file rule most or all categories of documents that are not currently automatically inserted by the commission,” they said. Gray pointed out that “these filings also are not required by, and have no foundation in, any of the provisions of the Communications Act.”

America’s Public Television Stations said the agency should improve the reliability of its public file systems through investment. Station licensees and FCC staff “often face a significant burden attempting to interact with the Commission’s systems due to unscheduled downtime or other issues,” the group said. “While it may require additional resources, investment in Commission technology could do as much to reduce the regulatory burden on broadcasters as eliminating multiple unnecessary rules.”

Broadcasters and others also called for the FCC to relax equal opportunity employment requirements. Since broadcasters can use online sources to comply with EEO job recruiting rules, EEO reports don’t provide much benefit, Sinclair said. The FCC “has never found a broadcaster to have engaged in unlawful discrimination since the current rule was implemented in 2002,” NAB said. The FCC’s Form 395-B requirement was “designed to pressure broadcasters to adopt the ‘diversity, equity, and inclusion’ mindset of the previous Administration," said the Heritage Foundation. A joint filing from 82 smaller broadcasters called for the FCC to relax most EEO rules for stations with fewer than 50 employees.

Children’s television rules were also a frequent target of broadcaster filings. Sinclair said the FCC should relax the requirements to allow stations more flexibility in meeting the requirements, while Gray said the rules are coercive and violate the Constitution. “These regulations thus create a lopsided regulatory burden on a nearly obsolete delivery channel,” FIRE said.

Several commenters called for the FCC to do away with limits related to originating content on translators or boosters. GeoBroadcast Solutions said the agency should relax main transmitter requirements to allow radio broadcasters to use boosters as a distributed transmission system. A group of 24 smaller radio broadcasters filed jointly as Broadcasters for Limited Program Origination, endorsing the GBS request and asking the FCC to drop restrictions on originating content on translators. “An FM booster station (or an FM translator station) should be able to split off programming whenever such split programming content serves its listening audience,” said the joint filing.

State broadcast groups and Gray said the FCC should change its enforcement practices against broadcasters. The FCC’s “strict liability approach” to one-off or inadvertent paperwork violations, such as failing to submit EEO reports, “forces broadcasters to overinvest in compliance personnel and resources,” the state associations said. “Such an approach might make sense in an industry where a single violation could cause widespread radiation poisoning,” but not in one "where the failure to upload a Quarterly Issues-Programs List will not have a meaningful impact on anyone.” Gray said the FCC should be more discretionary in enforcing the rule against false use of emergency tones: “A false activation of the [emergency alert system] to warn of a zombie invasion may clearly violate the rule, but using an EAS tone in a news segment designed to educate the public about the EAS system and what those tones mean should not.”

MVPDs

The huge changes in the MVPD universe, with heavy streaming competition and cable losing subscribers, should serve as “the death knell for legacy regulations premised on the purported market power of cable operators and programmers,” NCTA said. It cited legacy regulations including the must-carry rules and program-carriage mandates. The ability to distribute content via the internet makes leased access programming and public, educational and government channel requirements moot, it said. NCTA used similar logic -- pointing to a “hypercompetitive” voice service market -- to argue that VoIP providers shouldn’t have to provide notice of power limitations on their service. It said there’s no reason for the limits on use of customer proprietary network information for marketing purposes when no provider has an inherent advantage in accessing that information.

The all-in video pricing orders “in fact confuse customers more than increase transparency,” said ACA Connects as it advocated for their deletion. ACA called the professional engineer certification requirement for broadband data collection “both unnecessary and unduly burdensome for smaller fixed broadband providers.” It complained of vague and expensive digital discrimination requirements and urged the agency “to start from scratch” to come up with rules that better align with the digital discrimination requirements of the Infrastructure Investment and Jobs Act. It said the FCC should end the reporting obligations for advertisement duration limits under the Children’s Television Act and the cable operator requirement for providing annual notices to subscribers.

NTCA also had video programming-related asks among a lengthy list of suggestions. It urged modification of FCC rules to let video service providers list for subscribers the retransmission fees paid for individual channels. It also endorsed the commission amending its Part 76 rules so that MVPDs could include in their channel lineups broadcaster content from neighboring designated market areas and axing its digital discrimination rules in favor of "a more modest expression of regulatory engagement.” NTCA also asked for modification of broadband labels requirements; pushed back against multilingual and interactive label requirements; and called for the FCC to drop daily infrastructure reporting requirements during emergencies for the Disaster Information Reporting System. Those daily report requirements divert resources away from service restoration efforts, NCTA said. Data breach notification reporting should be limited to instances of likely financial harm, it said, and the reporting threshold of reporting breaches should be raised to those affecting 1,000 or more customers.

The American TV Alliance said the FCC should dump its presumption that programming bundling complies with the good-faith retransmission consent negotiation rules. Instead, the agency should ban forced bundling and related actions, ATVA said. It also pushed for elimination of must-carry rules and said the agency should only tackle consumer complaints that allege specific rule violations. It said the FCC overseeing responses to complaints outside particular FCC rule violations “creates a substantial drain” on both the agency's and MVPDs' resources.

In a call with media Monday, ACA Connects Chief Regulatory Counsel Brian Hurley said the "Delete" proceeding, which came early in Carr’s chairmanship, is clearly a priority. Given the volume of advocacy to the agency in the docket, there could be "Delete" proceedings filling out monthly FCC meeting agendas “for many months to come."

Hurley said ACA Connects’ call to drop the professional engineer certification requirement for broadband data collection could represent low-hanging fruit for the agency, which is already giving waivers of the rule. Given Carr’s “vociferous dissent” when digital discrimination rules were adopted, ACA Connects’ call to overhaul those strictures seems “aligned” with Carr’s priorities, Hurley added.

Beyond ending the all-in pricing rules, the FCC should halt pending proceedings that would require rebates from cable providers in carriage-negotiation blackouts and prohibit MVPDs’ early termination fees, Free State Foundation said. There’s widespread competition nationwide from virtual MVPDs and video-sharing platforms such as YouTube and TikTok, making it clear that cable operators everywhere face effective competition, and thus all rate regulation provisions should be done away with, it said.

EchoStar submitted half a dozen proposals, including the abolition of the syndicated exclusivity and network non-duplication rules and of the political file rules applicable to direct broadcast satellite providers. It also pushed for ending the prohibition on importing distant network signals during a blackout.