Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
- The U.S. Supreme Court issued an order extending the temporary stay it issued last week (see our note here), rejecting the ruling of the U.S. Court of Appeals for the Fourth Circuit which had granted a mandamus petition filed by several Democratic candidates. The Fourth Circuit had ordered the FCC to act, by October 9, on the candidates’ application for review seeking review of the controversial FCC Media Bureau Public Notice issued in March which “reminded” broadcasters that Lowest Unit Charges (LUC) apply to advertising bought by political parties and joint fundraising committees when authorized by a federal candidate (see our articles here and here). The Supreme Court found that the Fourth Circuit’s order was inappropriate because, while the Communications Act of 1934 requires the FCC to act on every application for review it receives, it does not require the FCC to act within a set timeframe—let alone within the 48 hours that the Fourth Circuit gave the FCC here. The Court also found that the Fourth Circuit’s decision inappropriately forced the FCC to abandon its deliberation process by quickly issuing a final decision on the Democratic candidates’ application for review while it was still reviewing comments filed in response to both that application for review and TVB’s related application for review of the Public Notice (see our note here). On our Broadcast Law Blog, we took a closer look at the Supreme Court’s decision leaving the Public Notice in place for the remainder of this election season and the challenges raised in the pending applications for review to the underlying constitutionality of LUC and related political advertising rules.
- The National Association of Broadcasters and Nexstar filed oppositions to a petition filed with last week by several state cable and broadband associations seeking a stay of the FCC decision to lift the 39% national ownership cap for television (see our note here). As we noted here, the FCC will now do a case-by-case review of any proposed TV combination exceeding the 39% cap to see if it is in the public interest by weighing factors including the transaction’s potential benefits (e.g., increased local programing and innovation) and its potential harms (e.g., decreased local programming, increased retransmission consent fees, and loss of jobs of communications workers). The NAB and Nexstar argue that the FCC should dismiss the petition because its claim that retransmission consent rates will increase due to the FCC repealing the cap was speculative and because the petition failed to show why the groups could not challenge specific transactions (by demonstrating the specific harms that would result from those transactions) using the case-by-case review procedures set out in the FCC’s order. The NAB and Nexstar also reject the groups’ assertion that the FCC lacks authority to alter or repeal the cap, noting that the FCC previously, under both Republican and Democratic chairs, as well as the courts have found that the FCC has the authority to do so.