A vote was due at the end of 2018, with Ajit Pai as FCC Commissioner. That didn’t happen. Then came an unprecedented absence of a fifth Commissioner, with the election of President Biden and selection of Jessica Rosenworcel as Chairwoman.
Finally, on October 2, The U.S. Court of Appeals for the D.C. Circuit ordered the Federal Communications Commission to end the delays, and complete the long-overdue 2018 quadrennial review in 90 days.
Just before the Christmas holiday, that reportedly occurred, with the official release of the 2018 quadrennial order coming from the Commission Tuesday afternoon — just days before the end of 2023.
Word of the order’s approval, on a party-line 3-2 vote, first came late in the day on December 22 from respected FCC reporter Monty Tayloe of Communications Daily. Tayloe cited an official with the FCC in sharing that Republicans Nate Simington and Brendan Carr voted against the 2018 Quadrennial order.
This is a sign that deregulation of broadcast media rules as desired by the the broadcast television industry, the NAB, and many radio broadcasting companies will have to wait until the 2022 Quadrennial review — or later.
As of Tuesday morning, the FCC had yet to release the 2018 Quadrennial order to the public.
By 3pm Eastern, the documents were released in full, offering key details of what the Commission did — keep essentially all of its rules from the 2016 Quadrennial review in place — are known. And, that will likely put more vigor into TV industry efforts to get the 2022 Quad review to offer rule “modernization,” as the Pai Commission put its regulatory thawing efforts.
NEW RULES CLOSES MONOPOLY LOOPHOLE
The biggest takeaway from the 2018 Quad order is that it keeps the FCC’s prohibition on owning more than one top-four full-power network station in a DMA. But, it now extends to digital multicast channels and low-power television stations.
What does this mean for existing situations where a company may offer a dual or multiple network option to viewers thanks to its ownership of LPTVs or use of digital multicast signals? They are expected to be grandfathered in.
Thus, companies such as News-Press & Gazette Co. need not worry about its Santa Barbara, Calif., station group comprised of ABC, CBS and FOX affiliates or its collection of network affiliates in its home market of St. Joseph, Mo.
Furthermore, a waiver process will be available to any company that seeks to obtain one.
Otherwise, there appears to be no material changes to the FCC’s rules, in particular for local radio ownership “subcaps.” While this was largely anticipated, there is already chatter among Washington insiders that a court challenge to the 2018 Quadrennial order will likely arrive soon.
The “approve-or-else” mandate from the D.C. Federal Appeals Court came two years and four months after a June 4, 2021, Public Notice that put the wheels in motion on its 2018 Quadrennial review proceeding. The original comment filing deadline of August 2, 2021 and reply comment filing deadline of August 30, 2021 were extended by one month after five groups convinced the Media Bureau that more time was needed to vocalize on paper what needed to be said as to whether the FCC’s media ownership rules remain “necessary in the public interest as the result of competition.”
Yet, after all of those efforts and lobbying from the NAB, the Rosenworcel Commission — as anticipated — did perhaps the exact opposite of what the broadcast media industry has been clamoring for, with the exception of some radio industry companies.
With the Dec. 13, 2018, unanimous approval of a Notice of Proposed Rulemaking (NPRM), the FCC initiated its 2018 quadrennial review of its media ownership rules. By April 2019, some in Washington were anticipating some loosening of the FCC’s radio ownership rules. And, the FCC certainly heard from many about what to do — with three days remaining in its comment period concluding April 29, 2019, more than 800 ex parte filings were submitted to the Commission regarding the 2018 Quad review.
Meanwhile, where was the 2016 Quadrennial order? On Sept. 23, 2019, the Third Circuit of the U.S. Court of Appeals vacated and remanded the FCC’s cross-ownership rule rewrite, as it sought a rehearing by way of an en banc request. This was denied — as many D.C. legal pros predicted — on Nov. 20, 2019. With a Supreme Court appeal the lone road ahead for the Pai Commission and time running out on how to handle new transactions, the Media Bureau reinstated the 2016 Quadrennial Media Ownership Rules “consistent with the mandate” issued by the appeals court.
This explains one of the two key reasons for the five-year delay in the 2018 Quad order’s finalization. The other is the attempt by President Biden to seat the polarizing Gigi Sohn as the third Democrat on the Commission. With two efforts to do so squashed by Republicans, it was not until late September 2023 that Anna Gómez was sworn in to round out the five voting Commissioners at the FCC.
‘A WASTE OF TIME AND RESOURCES’
By the end of December 2022, no 2018 Quad order had arrived. Yet, to the frustration of some Inside the Beltway, the Media Bureau of the FCC formally commenced the 2022 Quadrennial Review of the Commission’s media ownership rules. Two months later, and again in March 2023, the NAB vocalized what it thought of the idea succinctly — it “appears to be a waste of time and resources.” This came after the Commission rebuffed a NAB request to place a temporarily hold on the 2022 review until the 2018 review has been completed. How frustrated was the NAB? It noted that the 2022 review sees the Commission “posing the same generic questions and issues” this time around just as it did in its 2018 review.
Now, the NAB could do what Prometheus Radio Project did with respect to the 2016 Quad order — take the FCC to court as it is now one year late on the 2022 Quad review’s finalization.
To view the 2018 Quad Order in full, please click here.
