2018 Quad Review Still in Limbo, FCC Starts 2022
With six business days left in 2022, the FCC has started its 2022 quadrennial review even as its 2018 review remains unfinished. FCC officials told us a vote on a draft QR order or NPRM isn't likely soon without five commissioners. Before Thursday's QR public notice establishing docket 22-459, multiple 10th-floor officials said there had been no mention of a QR proposal from the chairwoman’s office in months.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Quadrennial reviews being late isn't unusual: The first NPRM of the 2018 QR wasn’t approved until December of that year by then-Chairman Ajit Pai’s FCC, and the 2010 QR was never completed by the agency under Chairman Julius Genachowski. “It is a thorny, difficult area that always leads to litigation,” said Wilkinson Barker broadcast attorney David Oxenford. “Ownership and competition issues tend to be very political,” said Baker Hostetler broadcast attorney Davina Sashkin.
Noting the 2018 QR so far not resulting in any final rules being adopted, "we remain cognizant of the statutory obligation to review the broadcast ownership rules every four years," the Media Bureau said in the PN, seeking comment 45 days after Federal Register publication. It said the 2022 QR follows the 2018 QR in kicking off just before the end of the year. It said starting the 2022 QR "despite the pendency of the 2018 Quadrenniel Review is appropriate" given how much the media marketplace can change between the periodic reviews and how much time it can take to do economic studies and data collection. Asked about the status and timing of 2018 QR, the agency didn't comment.
The 2018 QR has had a particularly fraught process, since the agency couldn’t proceed on it until the resolution of the FCC’s Prometheus IV appeal to the U.S. Supreme Court, which wasn’t decided until April 2021. That delay is seen to have been further compounded by the lag until Chairwoman Jessica Rosenworcel took her seat as the permanent FCC chair and the currently stalled confirmation of a fifth commissioner. “It’s a shame that two years into this commission” the chairwoman still doesn’t have a majority, said former Commissioner Michael Copps. An agency official said the 2-2 FCC shouldn’t necessarily be a barrier to approving a QR. The commissioners have been able to find common ground on other items that might have originally been expected to be contentious, but no media ownership proposals have been floated to the FCC's Republicans by the chairwoman’s office, the official said. The FCC declined to comment.
Reviewing broadcast ownership rules every four years is required by statute, but being late on the QR is unlikely to have much practical consequences, industry attorneys and officials said. The item might come up in congressional oversight hearings but likely wouldn’t rise beyond the level of pointed questions from lawmakers, said Copps. Broadcasters or another party could make an issue of the delay by seeking a writ of mandamus compelling the FCC to issue an order, and NAB CEO Curtis LeGeyt warned the FCC in April it was "past time" to do the 2018 QR (see 2204070055). Several broadcast attorneys said a mandamus effort is unlikely because it would likely lead to further delay and have an uncertain outcome. Mandamus orders are usually difficult to obtain, said United Church of Christ attorney Cheryl Leanza, who represented Prometheus Radio Project in the legal challenge of the previous QR.
With 2018 now long gone, the agency should focus its energy on the 2022 QR, said Copps. The 2018 version, which has had two rounds of comments but as an NPRM didn’t include any rule changes or tentative conclusions “won’t be a credible document,” Copps said. He said the FCC should take the time to make the 2022 QR a substantive proceeding.
Along with the near certainty of a legal battle and the historical thorniness of the proceedings, there are also limited issues to target in a QR, multiple broadcast attorneys said. The focus of commenters on the 2018 QR NPRMs were local radio subcap rules, clarity on the FCC’s rules for allowing the ownership of multiple top four stations in the same market, and the dual network rule, said Oxenford. A recent enforcement decision against Gray Television suggests the agency doesn’t have a permissive view of top-four combos, and the radio industry is divided over what should happen to radio subcaps, broadcast attorneys said. The FCC urgently needs to recognize that broadcasters face competition from digital services and loosen ownership rules, Oxenford said: “Something’s gotta change.”