Cruz Insists He's Still Evaluating FCC Broadcast-Ownership Cap After Hearing Skepticism
Senate Commerce Committee Chairman Ted Cruz, R-Texas, told us Tuesday that he's still evaluating whether the FCC should raise or eliminate its 39% national TV station audience-reach cap, despite a line of dialogue during a panel hearing in which he voiced skepticism about commission action. Other committee members were largely divided along party lines, with Republicans either outright backing proposals to lift the FCC’s cap or at least not opposing them. Most Democrats strongly opposed the cap's elimination.
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Newsmax CEO Chris Ruddy said during the hearing that he’s “prepared to litigate” if the FCC decides to raise or eliminate the cap without congressional authorization, given that lawmakers specifically mandated the current 39% limit in the FY 2004 appropriations package. He later told reporters he would “certainly look at litigation” to challenge the FCC if it approves Nexstar’s proposed $6.2 billion purchase of Tegna, which would require lifting the cap. Ruddy insisted during and after the hearing that President Donald Trump’s weekend endorsement of Nexstar/Tegna (see 2602090068) hasn’t shifted the debate against his position.
“I've continued to keep an open mind on this question” of whether the FCC should lift or eliminate the cap, Cruz said Tuesday in a brief interview after the meeting. “But I think the hearing we just had provided very helpful testimony to the committee to make that determination.” During the hearing, Cruz appeared to lean against the agency acting on the cap without congressional approval, noting that the 2004 law “barred the FCC from using its forbearance authority to waive the cap, and it expressly excluded the 39% cap from being part of the FCC’s established regulatory review process.”
Cruz asked Ruddy and NAB CEO Curtis LeGeyt whether the FCC had post-enactment “statutory authority to adopt rules that set the [limit] to, say, 42% or 50%, or was the [commission] instead bound to follow the 39% cap fixed by statute?” Cruz later asked them, “If we assume that Congress did not clearly bar the FCC from using its general authority to change the statutory cap, is there any legal limit to what the FCC could do with the cap?” He also questioned whether the FCC should “have a commission-level vote” on both changing the cap and approving Nexstar/Tegna.
“The reason Congress set [the cap] at 39% was that the FCC, after the [1996 Telecom Act], tried to raise it to 45% by fiat,” Ruddy said. “And [lawmakers] said, ‘Wait a minute, you can't do this.’” He said he doesn’t believe the commission has the authority to lift that limit and cited several legal scholars who have agreed. It “would be rather ridiculous if they just flouted what Congress voted and put into statute.”
Ruddy also said former FCC Chairman Ajit Pai, who led the commission during Trump’s first term, “repeatedly said that the cap was … a matter of law, [even though] he didn't like it.” Digital First Project Executive Director Nathan Leamer, a former Pai aide, later countered that the ex-chairman “strongly supported increasing or even eliminating the cap.”
LeGeyt argued that it was “legally” possible for the FCC to raise the cap, even with the 2004 appropriations directive in place, because “Congress didn’t set the 39% in statute.” That law “directed a modification of” what was then a 35% cap, he said. “It did not remove the FCC authority,” which the U.S. Court of Appeals for the D.C. Circuit previously upheld, “to modify that number on an ongoing basis.” Nothing in the statute “would prohibit” the commission from potentially raising the cap to 100%, LeGeyt said.
Ruddy Stays 'Positive'
Ruddy later emphasized to reporters that Trump’s Truth Social post endorsing Nexstar/Tegna “never disowned his” criticism in November of proposals to lift the cap. Trump said at the time that such proposals might aid broadcasters that he sees as favoring Democrats (see 2511240055). “We think that's positive,” Ruddy said. “There may be reasons [why he] particularly wants” Nexstar/Tegna to proceed, but hopefully when he “sees more information on this, he may come to a different opinion.”
Sen. Shelley Moore Capito, R-W.Va., told us she sees Trump’s Nexstar/Tegna endorsement as a sign that he “changed his mind” in favor of lifting the cap. Trump “has spoken on” the cap now, she said, as has FCC Chairman Brendan Carr, who also endorsed the Nexstar/Tegna deal. Media industry lobbyists previously noted chatter that Carr might be slow-walking action on the cap proposals while he awaited more definitive signals from Trump (see 2601140071).
Capito said her “experience with what I’ve seen with our local affiliates encourages me that breaking the cap would really help” those stations, in keeping with testimony from LeGeyt and Wiley’s Tom Johnson, former FCC general counsel under Pai. Senate Communications Subcommittee Chair Deb Fischer, R-Neb., told us she wants to continue to “gather information” about arguments on the cap, but her questions also appeared to favor lifting the limit.
Senate Commerce ranking member Maria Cantwell of Washington was one of several Democrats who criticized the cap proposals and questioned Carr’s willingness to make a decision independent of Trump’s wishes. Carr “has practically prejudiced himself in [a process] that’s supposed to be independent if he’s already made a decision” on the cap and Nexstar/Tegna, Cantwell said. If the deal “goes through, a single company will control 265 stations capable of reaching 80% of all households, more than double the current cap.”
Senate Communications ranking member Ben Ray Lujan, D-N.M., noted concerns about Carr’s “willingness to rubber-stamp” Nexstar/Tegna, in part noting the FCC chairman’s testimony at a December subpanel hearing that the commission “is not formally an independent agency” (see 2512170067).