FCC's 2018 QR Item Has 2 Votes, Could Miss Court's Dec. 27 Deadline
The FCC’s draft 2018 quadrennial review order had just two votes as of Wednesday evening, which could mean it won’t win approval in time to meet the Dec. 27 deadline that the U.S. Court of Appeals for the D.C. Circuit set (see 2309290056), according to FCC and industry officials. The item hasn’t undergone many changes since it was circulated. It would extend prohibitions on new top-four combinations to multicast and low-power TV stations and maintain rules limiting local radio ownership.
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Several FCC and industry attorneys told us the item’s circulation by the Dec. 27 deadline -- it was sent to 10th-floor offices in late November -- would likely be enough to satisfy the court that the agency is acting on the QR, even if the draft hadn’t been approved yet. Several public interest group representatives told us they expect the order will win approval next week. “Our expectation is that the 2018 order would be approved soon, and then we’ll be looking to the 2022 order,” Future of Music Coalition Director Kevin Erickson said in an interview.
Under the agency’s internal “must-vote” procedures, once an item has three votes, the remaining commissioners have 21 days before they are compelled to vote. Because must-vote hadn’t been triggered as of Wednesday, the timeline for the QR item’s approval could stretch beyond Dec. 27 and even into 2024. A Republican FCC official told us last month that staff could require the extended period to review a lengthy and complicated item during the holidays (see 2311070072). The draft item is some 90 pages, an agency official told us. The FCC declined to comment.
The draft order would treat multicast channels and low-power TV stations as full-power stations for the purposes of the FCC’s restrictions on deals that would lead to a broadcaster owning more than one of the top-four network stations in a single market. Currently, a transaction involving the owner of a top-four full-power station purchasing a low-power top-four affiliate wouldn’t violate the rules even though it would lead to one broadcaster owning a top-four duopoly. That would change if the draft QR is approved, though FCC officials told us it would grandfather in existing combinations.
It isn’t clear that delaying a vote would benefit supporters or opponents of the draft order, other than by possibly getting the agency into hot water with the D.C. Circuit, said Christopher Terry, University of Minnesota associate professor. The NAB, the draft's most vocal opponent, is the other party in the D.C. Circuit case. It pressed the court to compel the agency to issue the 2018 QR. NAB wants a final QR 2018 order so it can begin the process of challenging it in court, broadcast officials told us.
NAB said that the change would unlawfully restrict broadcaster content choices and that the agency lacks the authority to restrict LPTV ownership. Nothing in the record “provides any rationale for effectively treating LPTV stations as if they are now magically full power stations when they are in reality secondary services subject to interference that lack mandatory carriage rights,” NAB said in an ex parte filing this week. “Additional affiliations of national networks do not contribute to local news or cultural information,” said the United Church of Christ Media Justice Ministry, the Future of Music Coalition, and the musicFIRST Coalition in a joint filing posted in docket 18-349 Thursday.