FCC's Authority to Change Broadcast-Ownership Cap Is Unclear: Chief of Staff
FCC authority to change the national TV ownership cap remains unclear, and anything the agency does is likely to end up challenged in court, agency Chief of Staff Scott Delacourt said Wednesday at a Media Institute event. He also waved off the idea that the end of Chevron deference significantly changes how the FCC will defend its actions in court. The commissioners will vote on kicking off the 2022 quadrennial review of broadcast-ownership rules at its meeting next week (see 2509090060).
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Delacourt said the circumstances surrounding the FCC's latest quadrennial review open the door for it to have a different outcome than past ones. He cited the 8th U.S. Circuit Court of Appeals' July decision in Zimmer Radio, which ended the top-four prohibition (see 2507230063), saying it makes clear that if ownership rules aren't necessary for competition and localism, the commission can eliminate or modify them. Another difference is the media marketplace, with new voices like streamers competing with broadcasters for ad dollars, he said.
While the national ownership cap wouldn't be part of that quadrennial review, the record refresh that the agency undertook earlier this year on the cap (see 2506180082) covered a lot of similar ground, Delacourt said.
The ownership cap details, directed by Congress, are "pretty specific," giving weight to the idea that lawmakers wanted that cap as it's spelled out, Delacourt said. But the fact that a rule was adopted doesn't mean it can't be changed, he added.
There are strong, but potentially false, expectations that the end of Chevron deference was a game-changer for agencies, and it's wrong to now expect them to have a different win/loss ratio in court challenges, Delacourt said. The U.S. Supreme Court signaled long before its Loper Bright decision that it took a dim view of agency deference, and appellate courts had picked up on that, he said, noting that federal appellate courts hadn't been giving strong deference to agency statutory construction for a long time.
Delacourt said that with the FCC not having deference to rely on, it will have to convince courts that its reading of the statute is the best. "Candidly, that's what we've always tried to do."
On wireless competition, Delacourt said three isn't a magic number for how many nationwide carriers are sufficient for a competitive marketplace. With EchoStar dropping its plans for its own facilities-based national wireless network, he said, the FCC isn't focusing on a single metric, such as the number of remaining competitors, to determine if the wireless marketplace is competitive. He added that the agency uses a multifactor approach that looks at a variety of issues, including spectrum aggregation in local markets, bands involved and the possibility of competitive entry.
Asked about the 6th U.S. Circuit Court of Appeals' net neutrality decision in January (see 2501020047), Delacourt said that the commission is "keeping an eye on" state activities around broadband regulation. As to what the FCC could do in response, he said preemption "is a messy area," with some precedent that broadband's classification as a Title I service removes FCC jurisdiction. He said there needs to be further legal clarification of the issue.
As for a spectrum auction pipeline beyond an AWS-3 reauction and the upper C band, Delacourt said none of the other possibilities, such as 2.7-2.9 GHz and the citizens broadband radio service spectrum, are easy options, as they all have incumbent users. There are other options, such as the secondary market, like EchoStar's proposed spectrum sales to AT&T and SpaceX, he noted.