Terse provision slides through as part of massive annual appropriations act
TV Joint Sales Agreements (JSAs) have been given a new lease on life, thanks to Congress and the President. Back in 2014, the FCC declared certain JSAs to be “attributable interests” and therefore subject to unwinding by June, 2016. But now compliance with that rule will not be required before October 1, 2025, which should provide everybody plenty of breathing room.
As most readers probably know, when the FCC takes an action, there are only so many ways that folks unhappy with that action can get it turned around. The most obvious: asking the FCC to re-think its decision. That generally doesn’t work. The next most obvious: asking a court of appeals to reverse the FCC. That can work, but the odds tend to be long because the appellate deck is stacked against appellants. Courts tend to defer to the FCC’s judgment in many, perhaps most, areas. And usually, even if the court is convinced that the FCC got it wrong, the court is not inclined to dictate how the FCC should act; instead, the court will remand the matter so that the FCC can take another whack at it. Often there is no guarantee that the FCC won’t reach the same bottom line the second time around, but with reasoning that may satisfy the court.
There is yet another approach, this one to Congress. It’s important to remember that, in the governmental hierarchy, Congress is the boss of the FCC. So regardless of what the FCC may say, if Congress says something different, it’s Congress’s word that governs. And that’s what happened here. Congress (with the President’s endorsement) passed a law that reads (in very small but very relevant part) as follows:
Beginning on the date of enactment of this Act, in the current fiscal year and continuing through September 30, 2025, the Further Notice of Proposed Rulemaking and Report and Order adopted by the Federal Communications Commission on March 31, 2014 (FCC 14–28), and the amendments to the rules of the Commission adopted in such Further Notice of Proposed Rulemaking and Report and Order, shall not apply to a joint sales agreement (as defined in Note 2(k) to section 73.3555 of title 47, Code of Federal Regulations) that was in effect on March 31, 2014, and a rule of the Commission amended by such an amendment shall apply to such agreement as such rule was in effect on the day before the effective date of such amendment. A party to a joint sales agreement that was in effect on March 31, 2014, shall not be considered to be in violation of the ownership limitations of section 73.3555 of title 47, Code of Federal Regulations, by reason of the application of the rule in Note 2(k)(2), as so amended, to the joint sales agreement.
And there you have it: the FCC’s draconian JSA rule has been put on ice for nearly a decade.
This was not an easy thing to accomplish. Congress is, after all, very busy and (particularly in recent years) not given to prompt and effective decision-making. But one thing that Congress does have to do, every year, is to appropriate funds to keep the government running. We all know that, despite all the partisan posturing and brinksmanship leading to the occasional temporary governmental shut-down, in the end a budget measure has got to be passed by Congress and signed by the President. So if you have a provision that you’d like to get passed, you try to get it folded unobtrusively into the annual appropriations bill. When the big push comes to get the bill passed, ideally your little provision will sail along as a largely unnoticed part of the package and, voilà, the FCC will be stymied.
That, of course, is what happened here. If you click on this link, you’ll find yourself looking at the text of H.R. 2029, a/k/a the “Consolidated Appropriations Act, 2016”, an 887-page fine-print PDF behemoth that covers all manner of governmental activities. If you’re a glutton for punishment, you can try to read the whole thing, but we don’t recommend that; instead, fast forward to page 228, where you will find the language quoted above (technically, Section 628), nestled comfortably between Section 627 (about governmentally-mandated disclosure of the contents of wire or electronic communications) and Section 629 (about certain standards for recreational off-highway vehicles). The language gives the FCC no apparent wiggle room: prior to October 1, 2025, the agency’s April, 2014 change in the treatment of JSAs can’t be applied to JSAs that were in effect as of March 31, 2014.
There were doubtless a number of interested parties who worked hard to get this language into the appropriations act and then to keep it from getting scraped off the bill during the legislative process. One party in particular: the NAB, which appears to have flexed its lobbying muscles very effectively. In any event, congrats to all concerned.