Coalition asks FCC to stay repeal of 39 percent TV ownership cap

A coalition of press freedom groups, unions and public interest organizations asked the Federal Communications Commission on October 9 to stay its repeal of the national television ownership cap while a court challenge proceeds, according to Reporters Without Borders. The cap, known as the 39 percent rule, limited any single broadcaster to stations reaching 39 percent of U.S. households.

The group is represented by Democracy Forward and by the attorney Gigi Sohn, according to the organization. Its members include the United Church of Christ Media Justice Ministry, Public Knowledge, the NewsGuild-CWA, NABET-CWA Local 51, the Future Film Coalition, Free Press, and the Writers Guild of America West and East.

The coalition argues that Congress set the cap and that only Congress can repeal or change it. It says the FCC was directed to implement the cap but was never given authority to modify or eliminate it, and that the repeal is arbitrary and capricious. It also says the repeal would cause irreparable harm before a court can rule.

The commission voted on August 6 to scrap the rule and replace it with a “granular, case-by-case” review, and the final order was released October 1, according to the coalition. Free Press said the vote followed party lines and that Chairman Brendan Carr moved ahead although, in its view, the agency lacks the power to remove the limit. The coalition says Congress set the cap at 35 percent in the 1990s and raised it to 39 percent in 2004.

Clayton Weimers, executive director of Reporters Without Borders North America, said: “Repealing the nat cap eliminates the only meaningful limit on TV ownership consolidation in the US.” He added: “Furthermore, the FCC lacks the power to repeal a rule set by Congress.”

Matt Wood, vice president of policy and general counsel at Free Press, said: “The FCC simply cannot ignore the laws Congress makes just because the current agency head wants to.” Jon Schleuss, president of the NewsGuild-CWA, said: “Consolidation is the main reason we have lost tens of thousands of journalism jobs in the past two decades.”

John Bergmayer, legal director at Public Knowledge, said: “The FCC should keep the ownership cap in place while the courts review its repeal.” Skye Perryman, president and chief executive of Democracy Forward, said: “Localism, viewpoint diversity, and competition in the media are all crucial to a functioning democracy.”

Cable industry groups are also challenging the order. Ten cable organizations, including the Colorado Cable Telecommunications Association and the Florida Internet and Television Association, filed a stay petition dated October 2, Light Reading reported. They argue that the Consolidated Appropriations Act of 2004 set the cap and that the FCC lacks authority to modify, waive or eliminate it.

The cable groups say loosening the cap could raise retransmission consent fees, raise pay-TV bills and increase the risk of widespread blackouts. They said they will ask a court of appeals for review after the order is published in the Federal Register and will seek a stay and an injunction. The order takes effect 60 days after its October 2 publication, according to Light Reading.

The FCC’s order states that the commission “has the authority and obligation to reexamine the national cap rule in response to changing circumstances,” Light Reading reported. Anna Gomez, the commission’s lone Democratic member, called the move unlawful, and the report says she argued it was executed without a full commission vote.

Free Press said that in March the FCC granted Nexstar Media Group a waiver of the same rule for its $6.2 billion purchase of Tegna. The group says the merger would give Nexstar access to 80 percent of U.S. households over the broadcast airwaves. Federal courts in California have halted the transaction amid antitrust lawsuits from state attorneys general and private parties, according to Free Press.