Photo courtesy of the Chris Brown using the Creative Commons Licence.
The FCC’s final Order on Reconsideration in its media ownership proceeding was published in the Federal Register on Jan. 8. This latest step in the long-running saga of the FCC’s attempts to reform its media ownership rules relaxes many media ownership rules.
Absent Court intervention or Commission reconsideration, those changes will take effect on Feb. 7.
The Order on Reconsideration eliminates the following: the newspaper/broadcast cross-ownership rule, the radio/television cross-ownership rule, the attribution rule for television joint sales agreements, and the “eight-voices” test for local television ownership. It also implements a waiver process that could allow ownership of two of the top-four rated television stations in a given market. To review the implications of these changes in detail, read up on our past blog post from FHH attorney Dan Kirkpatrick.
As we noted back in December, publication of the Order on Reconsideration in the Federal Register will likely trigger challenges by public interest groups opposed to the new relaxed media ownership regulations. Other opponents of the rule changes could include cable system owners, who have long-opposed increased consolidation in local television markets.
Parties opposed to the rule changes now have two potential approaches. One would be to ask the Commission itself to reconsider the decision by filing a Petition for Reconsideration, which would be due no later than Feb. 7. The second approach would be to ask a U.S. Court of Appeals to overturn the Commission’s decision. Any such appeal must be filed by no later than March 9. Under the Communications Act, various parties may have the standing to file that appeal in any one of the U.S. Courts of Appeals.
However, a party must have filed its appeal no later than Thursday, Jan. 18 to ensure that that the appeal would be heard in the appellate court of that party’s choice. That’s because of the somewhat arcane procedures of the Judicial Panel on Multidistrict Litigation (JPML). Through this process, if appeals are filed in multiple circuits, as had been the case for a number of the FCC’s previous media ownership orders, the JPML holds a lottery to determine which court will hear the appeal. Appeals must be filed by no later than 10 days after Federal Register publication in order to qualify for that lottery.
Based on public court records as of Jan.19, it appears that only one appeal of the media ownership was filed, this by Prometheus Radio Project and Media Mobilizing Project. It was filed in the United States Court of Appeals for the Third Circuit, which has been hearing appeals of the Commission’s media ownership orders for more than ten years. It would appear, therefore, that this appeal will also be heard in the Third Circuit. While that was the likely outcome in any event, the fact that no other appeals were filed by the JPML deadline at least will allow all parties to avoid the disputes over the venue that arose in earlier media ownership appeals. It is worth remembering, though, that other parties still have until March 9 to file additional appeals; all of those will simply be consolidated into the Third Circuit.
In addition to adopting a number of changes to the media ownership rules, the Order also sought comment on how the FCC should structure an incubator program to support diversity in media ownership. The incubator program would promote new entry and ownership diversity by helping to “address barriers to station ownership.” However, the FCC has not settled on any details for this program and thus has sought public comment to assist its efforts. Comments on that proposal will now be due by March 9.
This is only the first wave of potential changes to media ownership to come in 2018, as this year marks not only the end of the 2014 quadrennial review process, but also the beginning of the 2018 quadrennial review. As we have previously reported, the Commission is also reviewing the national ownership cap on television station ownership. Suffice to say, it is likely that more changes to the media ownership rules are on the horizon.
Stay tuned to CommLawBlog for updates.