Groups Call for Scrutiny of Competition and More Spectrum in FCC Report to Congress

Ad and retransmission consent dollars that support local news “are quickly disappearing because of a drastically imbalanced communications and media marketplace and regulatory environment,” a joint filing from the ABC, CBS, NBC and Fox affiliate station groups said. A joint filing from Public Knowledge and the Open Technology Institute said: “A balanced spectrum policy that unleashes more quality spectrum for unlicensed, exclusively licensed, and shared/lightly-licensed use” is “a feasible and effective means to promote competition.”

The 2024 Communications Marketplace report must “acknowledge the burdens placed on” over-the-air radio and TV stations “by the current asymmetric broadcast regulatory regime,” NAB said. The FCC should use the report to explain to Congress “exactly what public benefits are furthered” with stronger station ownership rules and “how that action in any way aligns with the competitive pressures of today’s vibrant video ecosystem,” the affiliate groups said.

The FCC has begun treating broadcaster retransmission consent revenue “as somehow suspect,” the affiliate groups said, noting the agency’s blocking of the Standard/Tegna deal in part due to concern with increased retrans rates. Meanwhile, the agency’s lack of action on virtual MVPDs prevents individual affiliate stations from negotiating with virtual MVPDs over carriage of their content. “By seizing control of vMVPD negotiations, the Networks have effectively usurped the power to negotiate for one hundred percent (100%) nationwide clearance of their respective broadcast networks,” the filing said. “All of this suggests a picture of an agency that is simply not responding to documented, existing inequities in the marketplace, to the continued detriment of local broadcasters.”

Public Knowledge, OTI and the Rural Media Group called for the agency to protect independent programmers and ban most favored nation and alternative distribution method clauses in carriage contracts with MVPDs. “By allowing an MVPD to pick the best contract terms on a provision-by-provision basis, an independent programmer’s worst terms essentially become its only terms,” Rural Media Group said. “Banning MFNs as they relate to independent networks is the best policy,” PK and OTI said.

The Future of Music Coalition and the musicFIRST Coalition said that relaxing limits on local radio station ownership would help large radio groups only, and that NAB arguments for looser rules ignore the damage doing so would do to smaller stations. If radio station subcaps for FM were relaxed, the only beneficiaries “would be those few conglomerates who were previously maxed out in local markets” which could then buy more stations, the coalitions said in a joint filing. Connoisseur Media CEO Jeff Warshaw said the coalition’s focus on intragroup competition is misplaced. “The survival of terrestrial radio stations -- whether owned by large groups or small business owners -- depends not on whether they gain or lose share amongst other stations in the market, but is driven by whether they can compete against non-broadcast audio platforms.” FCC filings from civil rights groups and minority broadcasters “have all made clear that the Local Radio Ownership Rule protects small broadcasters including women and minorities from anticompetitive behavior,” the coalitions said.

The agency should address “a deeply concentrated communications market” by examining practices such as phone locking, whether eSims enhance competition and if a lack of standardization in phone number porting hurts consumers, PK and OTI said. The Communications Marketplace Report tracks “handset-related aspects of competition much less thoroughly” than previous reports, PK and OTI said. The groups also said the agency should restructure its spectrum screen to support wireless competition among four carriers rather than three. “Subscribers need a minimum of four national providers to see vigorous competition between providers. Spectrum aggregation limits should reflect this reality.”

The broadband market is effectively competitive, said the Free State Foundation and USTelecom. “The record clearly demonstrates that consumers are reaping the benefits of a competitive broadband marketplace,” USTelecom said. The FCC should support policies that facilitate broadband investment, such as maintaining its current pole attachment rules, USTelecom said. FSF chided other commenters such as Incompas for “a myopic focus on cable and telco providers” in assessing broadband competition. That “results in an incomplete and misleading picture of the competitive choices available to most consumers because it excludes satellite broadband services as well as fixed wireless access,” FSF said. The 2024 report should use a broader definition of broadband that includes fiber, cable, mobile, FWA and satellite platforms, FSF said.

The FCC should also promote competition by “increasing the amount of available spectrum for commercial wireless use and removing regulatory obstacles to physical infrastructure deployment,” FSF said. The agency “should pursue all options to repurpose as much spectrum from all bands as reasonably possible for commercial use.”

The satellite industry requires technology-neutral policies for access to spectrum, the Satellite Industry Association said. The agency should consider how to protect incumbent satellite operations and provide additional spectrum for growth “as it seeks to identify additional bands for terrestrial 5G,” SIA said. The agency should analyze the effects of the concentration in the area of relaunchable vehicles, PK and OTI said. Starlink is “unrealistic for many low-income individuals," the PK and OTI joint filing added. “Additional actors in this arena could help drive prices down particularly in the nation’s most rural and tribal communities.”