The legal team at the National Association of Broadcasters has responded to efforts coordinated by a group of broadband associations designed to stop the FCC from moving forward with its decision to delete a Congressionally mandated 39% national TV ownership reach limit by largely supporting the agency’s desire to move forward — and not wait for pending judicial review.
In an ex parte filing, NAB Chief Legal Officer and Executive VP of Legal and Regulatory Affairs Rick Kaplan — joined by Sr. VP and Deputy GCs Jerianne Timmerman, Erin Dozier, Nandu Machiraju and Associate GC Sophia Gonzalez — state the case that the FCC must deny a petition from a group comprised of 10 state and regional cable television and internet services associations to set aside the effective date of its newly approved policy of reviewing mergers and acquisitions on a case-by-case basis.
The Commission approved the elimination of the national television ownership reach cap at its August Open Meeting. The full order was not released by the FCC until October 1, clandestinely posting it to FCC.gov late in the day. And, it was a 2-1 vote on deeply divided party lines, with Democrat Anna Gómez blasting her Republican colleagues for changing a rule put in place by Congress. FCC Chairman Brendan Carr stated his case for why the Commission holds the authority for making the rule change, even though it was put into law by Capitol Hill legislators.
Among those opposed to the vote are broadband communications organizations representing MVPDs in Pennsylvania, Washington, Colorado, Florida, Indiana, Michigan, Minnesota, Mississippi, Virginia and six states in New England. As they see it, the August Open Meeting vote that put the wheels in motion on the erasure of the 39% national television ownership reach cap was adopted “based on a mistaken belief that it has authority to eliminate the statutory” limit. How so? “[A]s the record makes clear,” the groups state, “the Consolidated Appropriations Act of 2004 expressly and repeatedly set the national cap at 39% and eliminated any mechanism by which the Commission could modify or waive — let alone eliminate—the cap.”
The NAB disagrees, saying the petition for a stay fails to meet “the strict criteria required for a stay.”
First, the association representing broadcast TV companies argues the broadband associations “have not come close to demonstrating they will suffer tangible – let alone irreparable – harm without the FCC granting a stay of the National TV Cap Order.”
Kaplan and his team add that the courts have set a “high standard for irreparable injury,” and the speculative harms allege — “rather than substantiate” — are “not imminent, certain, actual, and great, as required.”
In particular, the NAB focuses on the “imminent” harm that the broadband associations claim will transpire. The association refutes this, saying they have shown in no way how they would be injured given the process by which any transaction would be reviewed under Section 310(d) of the Communications Act to show it is in the public interest. “Interested parties, including Petitioners, will be able to comment upon, oppose, or propose conditions on these TV station transactions before the Commission makes any decision,” Kaplan and his team state.
Furthermore, the NAB tells the FCC that “the purported harms alleged” by the broadband groups “would not materialize for months — maybe years — after a transaction occurred.”
Lastly, the NAB legal team makes the argument that, as the rule is not even operative as it does not take effect until 60 days after publication in the Federal Register, “there is no plausible basis to claim irreparable harm now.”
Concluding its brief, Kaplan and the other legal team members stand by the Carr Commission’s assertion that neither the Communications Act of 1996 nor nor the 2004 legislation codifying the 39% national TV ownership reach cap prevent the FCC from modifying or repealing it.
Why? “Congress in Section 202(c)(1)(B) of the 1996 Act did not set a statutory cap; instead, it instructed the Commission to ‘modify its
rules for multiple ownership set forth in section 73.3555 of its regulations . . . by increasing the national audience reach limitation for television stations to 35 percent.’ Section 202 of the 1996 Act directed the Commission to revise various ownership rules (including the
national TV rule) and then required the Commission to review, and potentially ‘repeal or modify,’ all those rules every two (now four) years going forward. Had Congress wanted to fix the cap in stone and prevent the Commission from ever changing the cap, it would hardly
instruct the Commission to modify its rules – it would simply set the cap and remove the Commission’s authority to change the cap. The Commission therefore had clear authority to repeal or modify the 35 percent cap under the ‘original’ Section 202(c)(1)(B).”
RBR+TVBR MEMBER BONUS: Download the FCC’s ex parte filing by clicking here.
