Broadcasters Push Deregulation; Public Interest Groups Urge FCC to Follow APA

Free Press and other groups said a recent White House executive order (see 2504100067) indicating that agencies can skip notice and comment when eliminating regulations doesn’t follow precedent, and the FCC would need to create separate proceedings and dockets for rolling back the rules suggested in the Delete record. “This docket, prompted by President [Donald] Trump’s crude deregulatory push, appears to be a brazen attempt to roll back consumer safeguards on a widespread scale for industry’s convenience,” Free Press said.

The FCC must abide by the Administrative Procedure Act and hold individual notice-and-comment rounds for any rules it seeks to eliminate from the Delete docket, said Free Press and other public interest groups. The agency never voted on the Delete public notice, and it wasn’t published in the Federal Register, Free Press said. “It is not an NPRM, nor is it a Notice of Inquiry. It also does not propose any rule, articulate any specific changes the agency seeks to make, identify any rules to cut, or even gesture to a particular substantive area within the Commission’s oversight,” it said. “To construe the Public Notice here as proper notice under the APA would turn the requirement on its head.”

The Delete public notice “is quite openly a fishing expedition in response to President Trump’s myriad executive orders on widescale deregulation, and not a proposal of any sort,” Free Press said. The group added that rules allowing the APA to be waived when there's “good cause” don’t apply to most suggestions in the Delete docket. The White House has argued that agencies could use the good cause exception to eliminate rules without following notice and comment. A joint filing from the National Association of Broadcast Employees and Technicians-Communications Workers of America (NABET-CWA), the United Church of Christ Office of Communications, and other groups expressed similar arguments. “The underlying request for comment in this docket does not constitute notice of proposed rulemaking under the Administrative Procedure Act and any action in response to comments filed under this docket would require additional notice.”

Tech Freedom said the FCC has good reasons to solicit comments before deleting rules: “First, because doing so is the law; second, because soliciting public comment may weigh in the agency’s favor in legal battles over deleted rules; and third, because public comments encourage thoughtful decision-making and bring in outside voices.”

NAB said the section of the FCC’s rules that governs broadcasting is larger than that for any other service the agency regulates. “The rules governing broadcasting are not only excessive, but they are also obsolete and counterproductive.” National and local station ownership rules “unfairly restrain only TV and radio broadcasters” from taking advantage of the economic advantages of scale, NAB said. “It is absolutely crucial to the future viability of broadcasters that these handicaps be eliminated.”

In a joint filing, E.W. Scripps, Gray Media and other broadcasters said that without scale, broadcasting will die out. “The Commission and the public need not fear that broadcasters will achieve too much scale locally or nationally; the risk is that they will not be able to achieve enough.” Nexstar said the record in the Delete proceeding shows that broadcast TV stakeholders are in unanimous agreement that the ownership rules should be eliminated. “It is well past time for the Commission to acknowledge the explicit harms caused by the National Television Ownership Cap and the Local Television Ownership Rule and fully repeal both rules.”

But the groups led by NABET-CWA said the FCC doesn’t have the authority to repeal the national cap. In 2004, Congress set the limit, removed it from the FCC’s quadrennial review process, and prohibited the FCC from using forbearance authority on it, their filing said. “Accordingly, Congress did not intend that the Commission would be able to change the national cap.”

The National Association of Black Owned Broadcasters (NABOB) said increased consolidation in radio would “reduce opportunities for minorities to enter the business or to grow.” Because radio stations are generally cheaper to purchase than TV stations, “radio has been, and continues to be, the gateway to station ownership for most minority entrepreneurs,” it said. “Repeal or relaxation of the Local Radio Ownership Rule will lead to another wave of consolidation, which will create another new set of barriers to entry for new entrepreneurs.”

Opponents of ownership deregulation said broadcasters' arguments that repealing ownership will allow them to compete with tech giants are incorrect. “Advertisers are unlikely to shift dollars away from Facebook, Google and other internet companies to broadcast media,” NABOB said. “Advertisers seeking to buy radio can buy it now regardless of who owns the stations.” The NABET-CWA filing said broadcast content and news are unique, and online content isn’t supplanting it to the degree broadcasters say. Recent studies show that most Americans still get their news from TV stations, whether from the broadcast or online methods such as station websites or social media posts, it said. “The suggestion that a flood of ‘content creators’ online is a technological change which requires that local news must be able to consolidate without limit or face extinction is a red herring not borne out by the reality of Americans’ news consumption habits.”

The Delete docket isn’t the venue for taking apart the broadcast ownership framework, which is governed by the quadrennial review process, EchoStar said. Such policy determinations shouldn’t be handled in “a rushed review under the guise of a regulatory cleanup.”

The FCC’s 2019 cable local franchise authority order must stand, NCTA said. Ending it wouldn’t eliminate burdensome rules but instead “would stymie broadband deployment and harm consumers.” NCTA also defended keeping other regulations, including the broadcast-ownership caps -- which “help check broadcasters’ leverage in negotiations for carriage by cable operators and other” multichannel video program distributors (MVPDs) -- and the local TV ownership rule.

Also defending the broadcast-ownership rules, the American TV Alliance said eliminating the national cap would create local and national consolidation, which leads to higher retransmission consent rates, with MVPDs passing along at least some if not all the price hikes to their subscribers. Not barring a broadcaster from owning two or more stations in the top four in a designated market area would similarly lead to higher retrans consent fees, the alliance said.

The FCC should also take up calls from NAB and other broadcasters to do away with public file, equal employment opportunity and children’s television rules, said Nexstar, Marantha Broadcasting and many others. Nexstar “does not dispute the EEO rules’ necessary prohibition on discrimination, but the current rules impose a plethora of hiring practices and recordkeeping obligations that far exceed what is reasonably needed,” the broadcaster said. Marantha “is not part of a conglomerate of stations,” so “meeting FCC filing requirements and other regulatory tasks falls upon the station's own staff, rather than a corporate structure that can divide and oversee these responsibilities,” it said. “This reality magnifies any FCC regulatory burden on a small team tasked with tracking, creating, and filing unnecessary documents.”