Incubator Order Language Said Likely to Change
Likely changes to the draft incubator order are being worked out, said FCC and industry officials in interviews. Requests from the Advisory Committee on Diversity and Digital Empowerment (ACDDE) that provisions on what constitutes a comparable market be restricted (see 1807260058) are seen less likely to be included. The item is to be voted at Thursday’s commissioners’ meeting, and forms the basis for a report to the 3rd U.S. Circuit Court of Appeals due Aug. 6 in Prometheus Radio Project’s challenge of a media ownership reconsideration order (see 1806290039).
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The order is expected to be approved, but it’s not clear how Commissioner Jessica Rosenworcel will vote, industry officials said. Anti-consolidation groups denounced the order as unlikely to do anything for minority ownership, but the diversity groups represented on the ACDDE support the order, despite seeking changes. “We haven’t had anything for diversity for a very long time,” said ACDDE member and National Association of Black Owned Broadcasters President James Winston. Though he doesn’t agree with the order’s use of ownership waivers and lack of applicability to television, the FCC “needs to get the ball rolling” on the program, he said, and provisions of the program that don’t work can be corrected down the road.
In her dissent from the ownership recon order, before details of the proposed incubation program were known, Rosenworcel appeared to say it should be rejected. “A modest rulemaking on an incubator isn’t going to get us where we need to go,” she said then. “It’s a high price to pay for the damage this order does and that is an exchange I am unwilling to make.”
The incubator program’s inclusion in the media ownership recon order was the FCC answer to the 3rd Circuit remand requiring consideration of minority ownership in any relaxation of media ownership rules, but the draft order is unlikely to satisfy those requirements, said Free Press Senior Counsel Jessica Gonzalez. The recon order largely affected TV rules, but the draft incubator order applies to only radio stations, and the draft doesn’t include a study of the impact of media ownership changes, she said. It uses a “new entrant” standard for determining incubated entities that hasn’t led to an increase in diversity in other settings, she said. The FCC “needs to do what they have always failed to do” said Gonzalez, referring to the agency’s prior losses in the 3rd Circuit on media ownership.
The ACDDE participants want the item’s definition of comparable markets changed to not allow the incubation of a new broadcaster in a relatively small market to grant a waiver of radio ownership limits in a much bigger market, said member and Multicultural Media, Telecom and Internet Council Senior Adviser David Honig. The current language would remove all incentives for incubation to happen in more competitive markets because broadcasters could get the same benefit in cheaper areas, he said. Current text would prevent the incubator program from being “nationwide,” he said. Limiting what constitutes a comparable market would discourage broadcaster participation, NAB said.