FCC outlook: Until Sohn is confirmed, the Commission is at a standstill

If and until the Senate confirms Democrat Gigi Sohn as the FCC’s fifth commissioner, not much can happen at the agency, with most votes facing a 2-2 split vote between the FCC Chairwoman Jessica Rosenworcel and Democratic Commissioner Geoffrey Starks and Republican Commissioners Brendan Carr and Nathan Simington.

On March 3, the Senate Commerce Committee voted 14 to 14 to advance Sohn, along with other candidates, to the Senate for a vote, but with no positive or negative recommendation. The tie also requires an additional procedural vote to offload the nomination from the committee so it can move on to the floor.

Sohn proved divisive in a Senate already divided along partisan lines. She is a former consumer advocate who served as an advisor on internet and telecommunications issues to FCC Chairman Tom Wheeler from 2013 to 2016. She is believed to be the first openly gay FCC commissioner.

Prior to the midterm elections, some Republicans began to oppose her, with even Tucker Carlson and Fox News opposing Sohn’s nomination.

“Time is nobody’s friend in the Senate,” said one Washington observer. “The longer she sits there, the longer people can shoot her.”

Time is also an issue with a very tight agenda in the Senate, especially as the midterm elections draw closer. But those same observers expect Sohn to be confirmed in the coming months, and Senate Commerce Committee Chair Sen. Maria Cantwell (D-Wash.) has repeatedly backed her.

Once Sohn is confirmed, the FCC will be able to focus on issues important to the Biden administration and the television industry, particularly net neutrality and media ownership.

Broadcasters want ease in ownership restrictions

Many ownership regulations that previously vexed broadcasters were at least temporarily resolved in April 2021. At that time, the Supreme Court reversed a Third Circuit Court of Appeals ruling that overturned a vote by the November 2017 FCC under Chairman Ajit Pai. This vote eliminated cross-ownership rules for newspaper and radio-television broadcasts; allowed ownership of two stations in markets with fewer than eight independent voices and opened up the possibility of owning two of the four major television stations in a market on a case-by-case basis; allowed owners to operate joint sales agreements between stations without counting them for ownership; and created an incubator program to develop more diverse ownership.

While the Third Circuit’s decision would have sent those rules back to the FCC for review, the Supreme Court overturned that, reinstating the FCC’s vote in 2017 and relaxing the rules.

Two major broadcast ownership rules that still exist are the 39% national ownership cap, which is included in the Telecommunications Act of 1996, and the 50% UHF rebate, which the FCC enacted in 1985.

“Media ownership rules have lagged so far behind technology,” said David Burns, an attorney at Washington communications law firm Lerman Senter. “Now it’s a totally different world with so many different competitors. Even when it comes to local news, television broadcasting competes with other local news sources, and certainly with other national and global media. All of this makes it difficult to justify multiple ownership rules.

And to a large extent, the biggest broadcast groups in the country – and in particular Nexstar and Sinclair – have found ways to circumvent many of these rules with local marketing and co-selling agreements.

“Broadcasters create these fictions, and then the FCC turns a blind eye,” said Art Belendiuk, a Washington communications and media partner at Smithwick & Belendiuk, which currently has a lawsuit pending against Sinclair Broadcast Group for its bending. of the rules. “If you think the [media-ownership] the ceiling must be there, apply the ceiling. Otherwise, lift the cap.

“It would be nice if you could consolidate because you would have more options as an operator,” Belendiuk said, including radio stations in his argument. “Every time it comes up it’s like ‘what about all these media companies that own all of this and nobody says boo to them? “”

If Sohn is confirmed, some broadcasters fear the FCC will try again to reinstate many of those broadcast ownership rules, though that’s just conjecture at this point.

Also of Concern: ATSC 3.0

In the meantime, broadcasters are focusing on a few issues: the transition to ATSC 3.0 or NextGen TV; the FCC’s completion of its congressionally mandated quadrennial review of media ownership regulations, which was to be completed in 2018; more scrutiny of big tech companies; and level the playing field so that local journalism can operate in a fairer market.

“Our highest priority continues to be the deployment of ATSC 3.0,” NAB President and CEO Curtis LeGeyt said in a pre-NAB Show interview. “While there is no specific commission element to this at this time, we continue to work with the commission to ensure they see these opportunities and how they are necessary for our business to remain viable. We need this commission to encourage this new technology.

The NAB is also pushing the FCC and Congress to modernize media ownership laws to reflect market realities.

“I think our legal team has done a terrific job filling the case with data that demonstrates that local broadcasters are competing for viewership and advertising dollars in a much larger market than other local broadcasters – primarily tech giants,” LeGeyt said. . “In our view, the last two years of COVID have only underscored the work broadcasters are doing. We can only continue to do that if we can invest in our media and we need a certain scale to do that.

NAB also supports several bills pending in the House and Senate that focus on local journalism.

The Competition and Journalism Preservation Act would allow broadcasters to jointly negotiate the value of local content accessed through platforms such as Google and Facebook. The Local Journalism Sustainability Act, part of President Biden’s Build Back Better bill that passed the House but stalled in the Senate, offers tax credits to support local media.

“Congress is very responsive and there’s a real bipartisan interest in helping to ensure that there are viable local news outlets,” LeGeyt said.

Aurora J. William