A Media Bureau investigation into Sinclair Broadcast over allegations of a lack of candor first raised during the Sinclair/Tribune deal (see 1808090042) discussion could be a prelude to a possible settlement or lead to another hearing proceeding, said broadcast attorneys.
The Supreme Court's 9-0 opinion in Kisor v. Wilkie upholds the doctrine of Auer deference, under which courts defer to regulatory agencies to interpret their own ambiguous regulations. Kisor involves a disabled Vietnam War veteran challenging a ruling by the Department of Veteran’s Affairs on the administration of his disability benefits. FCC General Counsel Tom Johnson didn’t comment on the decision Wednesday. He said in May (see 1905150060) the FCC was following the case, but the agency didn’t often rely on the sort of informal guidance generally covered by Auer. “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean,” said Justice Elena Kagan in the majority opinion. “But that phrase ‘when it applies’ is important -- because it often doesn’t.” Kagan’s opinion lists a variety of situations where Auer shouldn’t be used. In a separate opinion joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh, Justice Neil Gorsuch agreed with the majority's judgment but said the court should have done away with the doctrine entirely, and that it eventually will. Calling the ruling “a stay of execution” rather than a pardon, Gorsuch said the court will have to rule on Auer again. In their separate opinions, Kavanaugh and Roberts both noted the court’s ruling on Auer doesn’t touch the issue of whether courts should defer to agency interpretations of congressional statutes, a matter which is close to the doctrine of Chevron deference. The opinions are another sign the court could look at Chevron deference, which if overturned could mean the FCC is “out of business,” one broadcast attorney told us.
The FCC didn't sufficiently explain the reasoning behind many of its proposed FY2 019 regulatory fee changes (see 1906100049), said NAB and several satellite industry commenters in replies posted in docket 19-105 Tuesday. “The NPRM, in its current form, does not provide companies subject to regulatory fees a meaningful basis on which to comment in this proceeding,” said the Satellite Industry Association. Satellite companies don't have the information they need to understand the fee calculation methodology, said Intelsat License and SES Americom. Satellite companies shouldn't be charged differently than other media industries, said America’s Communications Association and NCTA. “Once again, AT&T and DISH rely on flawed reasoning and discredited arguments to attempt to justify a regulatory fee schedule that would perpetuate the preferential treatment DBS operators receive over other MVPDs,” the cable groups said. “The NPRM does not explain significant changes in regulatory fees for both satellite and VHF television stations,” said NAB. The association said the NPRM contains insufficiently justified hikes for radio stations, based on flawed data. Hubbard Broadcasting said the satellite TV station increase is “contrary” to the FCC's historical treatment of satellite TV stations and will impose “an unwarranted burden” on broadcasters. Intelsat supported a proposal from NAB to apply regulatory fees to a wider swath of entities, including those that don't have licenses. CenturyLink disagreed with the SEA-US Licensees and the North American Submarine Cable Association which said the FCC shouldn't increase fees on the submarine cable industry. "Align submarine cable fees with the benefits provided to submarine cable operators from the Commission’s activities,” asked NASCA.
FCC Commissioner Brendan Carr is “leaning” toward a plan to loosen radio subcap limits that leave some limits in place in cities but open up ownership limits in smaller markets, he said at a Federalist Society luncheon Tuesday. Carr said he hasn't made a final decision. He acknowledged the plan proposed by NAB and described in the 2018 ownership quadrennial review NPRM is “consistent” with where he's leaning.
An NPRM on equal employment opportunity enforcement offered by FCC Chairman Ajit Pai to satisfy concerns raised by Democratic commissioners doesn't go far enough to solicit diversity data, said Commissioners Jessica Rosenworcel and Geoffrey Starks in statements released with the approved item Friday. Though the NPRM in docket 19-177 was first proposed as a compromise offering to Starks and Rosenworcel (see 1902140053), both voted “concur” on the item. “I asked that we include language in this item to refresh the record on this languishing EEO data collection,” said Starks. “Unfortunately, my request was denied.” The item seeks comment on the FCC's track record on EEO enforcement and on whether it should be improved. ”What elements of the Commission’s EEO enforcement program are effective?” the NPRM asked. It seeks comment on modifying the EEO audit program to ensure that hiring decisions aren't made before jobs are widely posted. The NPRM is “unduly narrow,” said Rosenworcel. It “neglects to inquire about data that will help inform our work to modernize these policies,” she said. Starks unsuccessfully asked the item include a Further NPRM on collecting EEO data through Form 395-B. Pai said he has constitutional concerns about collecting such data. Looking into EEO enforcement was proposed in filings from a collection of 33 diversity groups, but the NPRM doesn't explicitly seek comment on some proposals from those filings. The diversity groups proposed the agency focus first on identifying companies using word-of-mouth recruitment and then require the Form 395-B data collection only from companies that had already been found to be violating EEO rules.
The FCC should prevent government dollars from funding broadband buildout in areas with a provider offering 10 Mbps downstream and 1 Mbps up, recommended the Advisory Committee on Diversity and Digital Empowerment in the final vote at the last meeting of its current charter Monday. The group will be rechartered (see 1906110048). The “2.0” version is expected to begin meeting by the fall, said the committee's Designated Federal Officer, Jamila Bess Johnson, in an interview. The agency is “well into the process of rechartering and soliciting new members,” said FCC Chairman Ajit Pai in a videotaped message.
The current FCC is unlikely to consider the national TV ownership cap or further relax broadcast ownership rules, said Gray Television Chief Legal and Development Officer Kevin Latek on a panel of broadcasting executives Thursday at S&P Global's Kagan Media Summit. The agency will “accomplish essentially nothing” between now and 2020, Latek said. Things could be different “next time” if the Republicans retain the White House, Latek said in New York, though “we'd probably need a new chairman.” The FCC didn't comment.
Revisions to the application process for noncommercial educational broadcast licenses and low-power FM stations shouldn't treat boards of such stations as owners (see 1905210069), said 54 NCE TV and radio licensees, among replies posted in docket 19-3 through Wednesday. The group includes universities and state educational authorities. The idea that a government agency or public university is owned by its governing board is ”conceptually misguided,” they said. Don't change much about the current process for handling mutually exclusive LPFM applications, said Center for International Media Action's sole staffer Pete Tridish. “You're doing great, FCC!” Allowing groups to band together to make their applications more viable encourages working together and helpful behavior, he said: “A system where groups can win by being nice and respectful, rather than buying a victory with lawyers and engineers and consultants: that is a treasure.” The FCC should improve policies requiring site assurances to prevent gamesmanship by applicants, said LPFM group REC Networks. Don't allow applicants to get around rules barring former radio pirates by changing board members, REC said.
The FCC's draft kidvid order increases the flexibility of when children's television content can be aired, allows more multicast content to satisfy the requirements, gets rid of the now-obligatory E/I symbol for noncommercial stations, and expands the options for broadcasters to preempt children's content for live events, as expected (see 1906180080). Also on the July 10 agenda is a declaratory ruling to pre-empt part of a 2016 San Francisco ordinance that requires sharing of in-use multi-tenant environment (MTE) building wiring. A draft order and Further NPRM and a related draft NPRM would largely follow a joint NAB/NCTA proposal for updating cable carriage election notification rules and propose rules for other MVPD electronic notifications based on America's Communications Association advocacy.
Marshall Broadcasting asked for a hearing designation order against Nexstar over allegations the broadcaster exerted undue control over stations owned by Marshall and prevented the smaller broadcaster from getting financing, said a complaint filed with the FCC last week. Marshall in April filed a lawsuit against Nexstar over similar allegations in New York Supreme Court (see 1904030071).