NAB 2018 QR Suit Not Seen Forcing Media Ownership Rules Changes Anytime Soon
NAB's attempt to get the U.S. Court of Appeals for the D.C. Circuit to force the FCC to move on its 2018 quadrennial review isn't likely to result in new media ownership rules coming out of the agency soon in large part due to the 2-2 commissioner deadlock, broadcast experts told us. NAB's suit Monday seeks a writ of mandamus compelling the commission to complete the 2018 review within 90 days of a court decision. The NAB legal action was expected (see 2303290065). The FCC didn't comment.
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"For 25 years, the Commission has played fast and loose with its obligation to review its broadcast ownership rules according to the clear timetable" set in federal law, NAB said in the petition. Since Congress first required review of the FCC's broadcast ownership restrictions, the agency "has made a habit of sitting on reviews, finishing them late, or skipping them altogether," it said. "The problem is so bad that both media groups and certain public advocacy groups -- who don’t agree on much when it comes to the underlying rules -- have been forced to seek judicial relief from the Commission’s dilatory pattern." Broadcasters "are held captive in a state of regulatory stasis while the Commission does nothing," it said.
While the agency's 2022 quad review is underway (see 2212120032), 2018's "must be at the front of the ownership review line," NAB said. It said the record for the 2018 review "is already complete and more than ripe for review," so ruling on it would mean less work than proceeding with the 2022 review.
Part of NAB's motivation to push now on media ownership rules could be the 2-2 FCC, said BakerHostetler broadcast lawyer Dan Kirkpatrick. That deadlock means it's more likely the agency, if it does anything on ownership rules, won't do something heavily regulatory, he said. He said it's not clear if the FCC is holding off on acting on media ownership rules change until there's a third Democratic commissioner. He said NAB might also be hoping the D.C. Circuit prompts the FCC to complete the 2022 review more quickly.
Even if the D.C. Circuit sides with NAB, broadcasters still will need three commissioner votes to adopt substantive new media ownership rules, Kirkpatrick said. If the D.C. Circuit forces the FCC to act, the agency could very well decide it's not in the public interest to adopt any new rules, and the existing ones remain the status quo, he said.
NAB isn't likely to get what it wants from the D.C. Circuit because a writ of mandamus "is extraordinary relief" and there's sizable court deference to agencies to determine their schedules and resource allocation, said United Church of Christ Media Justice Center attorney Cheryl Leanza.
NAB has long been trying to get media ownership deregulation, and such initiatives always get held up in the courts or by perceived FCC foot-dragging, said Fletcher Heald's Frank Montero. The U.S. Supreme Court's Prometheus IV ruling, which affirmed courts must defer to the FCC on ownership decisions, broke some of that logjam "and NAB is like, 'OK, let’s get moving'” on provisions like the UHF discount, he said. Quad reviews aren't value neutral because the agency is required to look for ways to deregulate ownership, he said. The lack of a majority definitely affects the agency's ability to act on ownership rules changes, he said. Some broadcasters see that as a plus, rather than commission action problematic for the industry, he said. But the concern is the agency will do nothing "and 2018 will get lost in the administrative pile," he said.
NAB does "have a point" in its frustration over 2018 being in limbo, said University of Minnesota media law professor Christopher Terry. The agency arguably hasn't done anything substantive on media ownership for more than 20 years, he said. But even if the D.C. Circuit ultimately were to side with NAB and give it the order broadcasters want, that wouldn't resolve the fundamental issue the FCC doesn't want to deal with: new media ownership rules, he said. If the D.C. Circuit disagrees with NAB, "that might encourage the FCC to somehow do less," he said. Any FCC action on new media ownership rules will only come when there's a clear majority at the commission, he said.
"The QR has drifted a long way from what it was supposed to be -- a dispassionate overview of the current media environment," emailed former Commissioner Michael Copps. "This whole process needs surgery. We don’t need a report on how things were in 2018; that was five years ago! Things have changed dramatically. The four commissioners who are there should find a way to get a new report done by the end of the year. Congress should help, not hinder, this. The American people deserve a much better view of the media than they have right now.”