FCC Media Bureau approval of Apollo Global Management-related Terrier Media’s buy of Cox Media Group and Northwest’s stations (see 1911220069) is another indication the FCC isn’t likely to approve deals with complications testing the limits of existing broadcast rules, attorneys, broadcasters and brokers said in interviews this week. “If it pushes the envelope, they’ll slow your deal up,” one broadcaster said.
The FCC hasn't made a decision about how to proceed after a full panel of the 3rd U.S. Circuit Court of Appeals rejected hearing the agency's en banc appeal of the Prometheus IV decision (see 1911200063), said Chairman Ajit Pai Q&A with us in a post-meeting news conference Friday. Pai said the agency is studying the 3rd Circuit's recent decision, a one-paragraph order saying a majority of judges in the circuit didn't vote for rehearing. Both Republican commissioners told us they supported the FCC moving ahead with an appeal to the Supreme Court. “The reforms we put in place are worth defending,” said Commissioner Brendan Carr. Commissioner Mike O'Rielly said he would back pulling proposals -- such as radio subcap deregulation -- from the 2018 broadcast ownership quadrennial review and moving ahead with them separately, if it wouldn't interfere with a high court appeal and were approved by the Office of General Counsel. Broadcasters made such a proposal Thursday (see 1911210065). Carr -- a former FCC general counsel -- also said he would need to see the OGC's opinion of such a plan. He said generally that the situation doesn't hold the agency “at full stop” on media ownership revision. Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks condemned continued appeals. The FCC needs to “get to work” and address the issues raised by the 3rd Circuit, Rosenworcel said. Starks said he's “gobsmacked” that the court has had to tell the agency four times to collect data on diversity impacts. Later Friday, the Media Bureau approved a transaction that was changed to account for the court ruling (see 1911220069).
An FCC appeal of Prometheus IV at the Supreme Court is expected by agency and industry stakeholders. Left unclear is how the rules restored by 3rd U.S. Circuit Court of Appeals will affect the industry in the meantime, said broadcasters and broadcast attorneys at a Media Bureau event on industry trends Thursday. They said the agency shouldn't wait on the uncertain appeal to deregulate broadcast ownership. Wednesday evening, the 3rd Circuit declined the regulator's request to reconsider the case (see 1911200063)
FCC Media Bureau draft NPRMs on digital AM and same market, commonly owned radio stations sharing content generated little activity in the FCC’s electronic comment filing system and aren’t considered controversial for Friday’s FCC agenda (see 1910290053), broadcast attorneys told us. An FCC official told us that few changes to the draft versions are expected.
The FCC’s proposal to eliminate requirements that broadcaster applications be advertised in local newspapers got wide support from nearly all commenters in docket 17-264. Public interest groups, noncommercial broadcasters and full-power broadcasters backed allowing online and on-air notices instead. Entities representing newspapers and print advertising had commented on a previous iteration of the proposal, but the electronic comment filing system didn’t show such filings this time around. Comments were due Monday.
The FCC isn’t expected to issue a 2018 quadrennial ownership review order this year, and many broadcasters aren’t betting on quick movement on that issue, licensees and broadcast attorneys told us. Broadcasters “weren’t ever holding their breath” waiting for the radio ownership deregulation and possible changes to top-four ownership restrictions that might have been expected in a 2018 QR order, said Fletcher Heald broadcast attorney Anne Crump. The FCC didn’t comment.
Full-power broadcasters and ATSC 3.0 boosters clamored for the FCC to relax rules governing distributed transmission systems (see 1910110040), in comments posted through Wednesday in docket 16-142. Microsoft and low-power broadcast entities have interference concerns. NAB and America's Public Television Stations' petition is “premature,” said the National Translator Association. “3.0 is incompatible with the present system, and the public’s paramount interest must be to preserve interference-free TV for present reception.”
The FCC and NAB petitioned Thursday for a full panel of the 3rd U.S. Circuit Court of Appeals to overturn a three-judge panel’s 2-1 decision against the FCC in the Prometheus IV ownership case, as expected (see 1910250006). For 15 years, “the same divided panel of this Court has frustrated the Commission’s repeated attempts to modernize its media ownership rules,” the FCC said. Prometheus is “irreconcilable” with “the proper role of courts in reviewing agency action,” NAB wrote.
Entertainment Media Trust’s administrative law judge proceeding is on hold while the broadcaster battles its own bankruptcy trustee in U.S. Bankruptcy court over how the case should proceed, according to filings (here and here) in docket 19-156 (see 1910020037). EMT filed for Chapter 7 and now seeks to have the bankruptcy proceeding voluntarily dismissed, a request that the FCC Enforcement Bureau -- EMT’s opponent in the ALJ proceeding -- seconded. Chapter 7 bankruptcy trustee Donald Samson, who's now the effective licensee of EMT’s stations as part of the bankruptcy process, opposed both requests. Samson and EMT are represented by the same attorneys, which EB said in a footnote could be an ethical violation. “This dual representation appears to raise a conflict that should be addressed,” the bureau said. It's “common practice” for bankruptcy trustees to hire specialty counsel who have background with the matters connected with a bankruptcy, Fletcher Heald broadcast attorney Davina Sashkin, one of the attorneys representing EMT and Samson, emailed. “Because Mr. Samson has control over EMT, he has essentially stepped into the shoes of EMT before the FCC,” she said. EB “has engaged in a relentless scorched earth campaign against EMT and then Mr. Samson, and are now calling my integrity into question,” Sashkin said. “It is wholly unprofessional.” The bureau didn't comment.The ALJ proceeding is on hold while awaiting a decision from the bankruptcy court on whether the bankruptcy will proceed, and on whether the ALJ case should be stayed if it does, the filings said. Administrative Law Judge Jane Halprin scheduled a pre-hearing teleconference for Nov. 14 on the timeline for the ALJ case, over Samson’s objections, said an order Wednesday.
The FCC should reduce equal employment opportunity filing obligations rather than accede to diversity group calls for stiffer enforcement, said broadcasters, NAB, NCTA and America’s Communication Association in reply comments posted through Tuesday in docket 19-177. Broadcast opponents said stiffer EEO rules would likely be unconstitutional, but diversity groups such as the Multicultural Media, Telecom and Internet Council and the Leadership Conference on Civil and Human Rights disagreed.