In a recent Google search on the status of the broadcast TV market, the first five results tell a bleak story:

• FCC's Simington: Broadcast Industry Heading Toward 'Catastrophic Decline'(communicationsdaily.com);
• Study: Total U.S. TV Station Revenue To Decline in 2025 (tvtechnology.com); 
• The Broadcast Golden Goose is Dying (jackmyers.com); 
• Cable and broadcast TV viewing falls below 50% for the first time (cnn.com); and 
• Broadcast TV Is Dying. Trump Is Threatening It Anyway (wired.com).

Of course, this reality has been foreseen for years, and nothing will change as long as the FCC clings to its Depression Era regulation of broadcasting.

The Evolution of Competition in Local Broadcast Television Advertising and the Implications for Antitrust and Competition Policy, a 2020 NERA Study, explained that digital advertising delivered over broadband networks constituted a direct substitute for local broadcast TV advertising. Making this imbalance worse, none of local TV’s Bid Tech competitors—Google, X, Facebook, Apple, Netflix, Amazon Prime, Hulu, Tic Tok, etc.—are subject to the FCC's ownership and regulatory restrictions.

Simply put, the FCC should eliminate its artificial broadcast ownership restrictions and allow the development and production of new content more efficiently by reducing redundancy and streamlining broadcast operations.

Removing its ownership limits would allow serious cost savings and open economies of scale so broadcasters could actually compete against Big Tech. It would also increase the means to distribute content across a broader range of platforms, maximize audience reach and consequently increase advertising and content revenue.

Finally, it will provide stability against market volatility, allowing licensees to better weather economic challenges and downturns, and open the market wider for technological investments.

The FCC should also unleash its regulatory hold on the advanced television format ATSC 3.0. The FCC has historically aided new technology that expanded public availability and service, but not so ATSC 3.0. It did it for FM radio and UHF television by insuring they were available on all new tuners manufactured.

When the analog-to-digital conversion arose, the FCC not only adopted a mandatory conversion requirement, it set-up a reimbursement program to help the television industry cover the cost. It should do likewise for ATSC 3.0.

For the young ATSC 3.0 technology, however, the FCC has not acted to enhance it, and instead continues to over-regulate and seriously limit the benefits of ATSC 3.0. Those benefits include two-way interactivity, multi-screen applications, 4K (and potentially 8K) resolution, immersive (Dolby AC-4) audio, mobile reception, integration with existing 5G cellular networks, datacasting (ATSC 3.0 uses Internet Protocol (IP) for signal delivery, so it can also broadcast IP-based data), and much more.

“What will TV look like in three years?” This was the question asked by CNBC of industry leaders in February 2023. In response, Peter Chernin, CEO of The North Road Company, said: “It will continue to be in decline. It will be crappier. Budgets will get cut. More scripted programming will migrate away to streaming. There will be more repeats. But it will continue to exist.” If you call that living.

It’s beyond time for the FCC to finally deregulate the struggling television industry, remove its broadcast ownership limits, and free ATSC 3.0 technology to allow a wider field of competition for broadcasters. Otherwise, the findings in the Tech Oversight Project from 2022, which concluded Big Tech was the killer of the newspaper industry, will be repeated, only this time it will be the television industry.

WASHINGTON—Sen. Rand Paul (R-KY), has introduced a bill that, if passed, would repeal all broadcast ownership limits. The draft bill, titled the “Local News and Broadcast Media Preservation Act,” moves to abolish local radio and television ownership rules; all in the name of helping broadcasters better compete with Big Tech.

According to a press release introducing Paul’s bill, this proposed legislation “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.”

In the release, Paul said his bill would exempt print, broadcast and digital news organizations from federal antitrust laws and authorities, such as the Department of Justice, to allow them to compete and negotiate with national tech companies. Further, he said the legislation would allow local broadcast companies to merge without government interference, which would “allow those broadcasters to better compete against these tech giants.”

Of course, being introduced so late in the congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress, notes the Broadcast Law Blog and Broadcasting & Cable. It’s also worth remembering that movement in the legislative branch continues to be stifled due to an ongoing political gridlock as the FCC continues its work with a 2-2 partisan split and the Gigi Sohn nomination remains stalled.

This battle for deregulation, however, is not a new one. Paul’s bill includes a component that is similar to the Journalism Competition and Preservation Act (JCPA) draft — which was passed by the Senate’s Judiciary Committee Sept. 22 — though the latter doesn’t have the sweeping deregulatory scope.

First introduced in 2021, if adopted, JCPA would create a “four-year safe harbor” from antitrust laws for print, broadcast or digital news companies to collectively negotiate with online content distributors (e.g., social media companies) regarding the terms on which the news companies’ content may be distributed by online content distributors.

As JCPA is set to advance to the Senate floor, NAB President and CEO Curtis LeGeyt released the following statement: “In today’s media landscape, local news outlets are at the mercy of a handful of Big Tech gatekeepers that dictate the terms by which their content appears online. This legislation would level the playing field by enabling fair negotiations between news publishers and dominant digital platforms for the market value of their local content.”

This article originally appeared on TV Tech sister brand Radio World. 

WASHINGTON—It may be a new, Democratic-led FCC, but broadcasters and cable operators are fighting the same retrans and media ownership battles.

On March 16, representatives of the American Television Alliance met with a top FCC staffer to argue that the current media ownership rules allow broadcasters to skirt limits and create triopolies and even quadropolies, loopholes they argued should be eliminated.

They argued that consolidation leads to higher retrans fees, that are passed on to consumers, as well as reduced diversity of voices.

ATVA also took aim at the larger retransmission consent regime, saying that 20% annual fee increases and record numbers of retrans-related blackouts did not represent a functioning market.

Only a few days later, representatives of the National Association of Broadcasters met with a different FCC staffer to talk about the same issues, but from quite a different perspective.

NAB said broadcasters can't provide local news, weather, sports and emergency info if they are not competitively viable, which means getting fair value for its valuable local content and not being saddled with regulations not placed on its pay-TV or over-the-top video or social media digital platforms not similarly subject to "onerous" restrictions.

NAB called ATVA an "astroturf group" trying to undermine Congress' will in establishing the retransmission consent/must-carry regime. 

As to the FCC's ownership regs, NAB said they were too strict, not too loose, as well as outdated and harmful. As for diversity of voices, it argues that the FCC has made "no progress" on encouraging diversity of ownership under the rules it claims are necessary to do that. 

"The Commission must face the reality that the very rules it has established to encourage diversity in fact make broadcast investment far less attractive for historically underrepresented groups," NAB told the commission. "Given that a potential investor can choose from many other related industries that are free from onerous ownership (and other) restrictions broadcasters face, the Commission’s own actions have made it even less likely its desired outcome will be achieved."

The FCC is required to review its broadcast regs every four years to determine if they are still necessary in the public interest.

WASHINGTON—The FCC and National Association of Broadcasters made their virtual arguments to the Supreme Court Tuesday, Jan. 19, on why a lower court (the Third Circuit Court of Appeals) was wrong to invalidate the FCC's 2017 broadcast ownership deregulation decision, a defense that came in the waning hours of the FCC's Republican majority, which had approved the rule changes over the objections of FCC Democrats.

On the other side, the attorney for consolidation opponents said the FCC had failed to do its statutory due diligence and earned the legal smackdown yet again.

While it is always tough to predict from oral argument—Justices often play devil's advocate to probe arguments—government attorneys and broadcasters were likely not unhappy with the tenor of the questioning.

Preston Padden, former top exec with Disney and Fox, tweeted immediately following the arguments: "After listening to FCC v Prometheus SCOTUS oral argument today on the Broadcast Ownership rules - my prediction is that the FCC wins at least 7-2 and that the long industry nightmare of the Third Circuit ends!"

Likely the two in that 7-2 prediction are Justice Sonia Sotomayor and Elena Kagan, who seemed most sympathetic to the backers of the Third Circuit smackdown of the Republican FCC's deregulation.

Justices Neil Gorsuch and Brett Kavanaugh definitely appeared to be leaning toward the government's argument that the FCC had looked at what info it had, made its best predictive judgment, to which court's generally give deference, and interpreting a broad public interest standard, sufficiently broad that it would be hard to say that interpretation was arbitrary and capricious.

Malcolm Stewart, an attorney in the Solicitor General's Office arguing for the FCC, said that the commission had exercised reasonable judgment in concluding the elimination of the newspaper/broadcast cross-ownership rule and other deregulatory changes were in the public interest, which he said was the primary purpose of Congress' mandate that it review its regs every four years; that there was incomplete data on whether eliminating that rule would hurt minority and women ownership; that the FCC had concluded based on the information it had that there would likely not be a negative effect on minority and women ownership; and that absent that, the likely beneficial effect outweighed any speculative harms.

He also argued that competition and diversity of viewpoints were the key goals of structural ownership rules, not their impact on minority or women ownership, and that the goal of Congress in mandating periodic ownership rule reviews was that they not remain on the books due to inertia.

Helgi Walker, representing the National Association of Broadcasters, went further in her arguments than the government, asking that the court resolve the issue of what the statute mandating the quadrennial review actually said, rather than just whether the FCC had made a reasonable judgment based on its reading of the statute.

Broadcasters want the Supreme Court to confirm their interpretation that not only does the FCC not have to include impact on minorities and women in its quadrennial review, but that to do so is beyond the bounds of the statutory mandate.

NAB is not saying minority and women ownership isn't important, or part of the FCC's public interest determination, but that in this instance, as the statute was written, it is not what the FCC is to be looking at,  much less the key factor the court said it was in vacating the newspaper-broadcast cross-ownership rule dereg.

She said that after 17 years and four different attempts to deregulate broadcasting, all smacked down by the same Third Circuit Court of Appeals, the case had finally reached the highest court in the land and it was time for some regulatory—or in this case deregulatory—certainty about the statutory mandate in the quadrennial review. If the court did not provide that guidance, she said, she predicted years more litigation.

In defense of the Third Circuit, Ruthanne Mary Deutsch, representing Prometheus Radio Project, said that the FCC had failed its basic legal requirement to state that it was not considering female and minority ownership or the potential harms the deregulation would cause, and explain why that was the case.

She argued the FCC couldn't explain because it had not really weighed the issue, and for those and more reasons its decision was arbitrary and capricious and the Third Circuit should repeal of the rules be upheld. She said that would allow the FCC's delayed 2018 quadrennial review—on hold pending the resolution of the Supreme Court case—to proceed.

The Justices focused on to what degree the FCC was required to take minority and women into account, if at all, whether not doing so was a change in policy and whether, if so, it needed to explain that change.

Justice Clarence Thomas, who asked numerous questions, focused on the presence of online competition and the FCC argument that that marketplace change was a reason why structural limits on broadcast ownership were less defensible than when the newspaper-broadcast cross-ownership rule went into effect in 1975.

The FCC and NAB both had challenged the Third Circuit repeal, with the cases consolidated in the argument heard Tuesday.

In November 2017, a politically divided FCC voted to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC did not call it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.

But during oral argument, the only rule change that was discussed was the newspaper-broadcast cross-ownership rule elimination.

The questions the Supremes were asked to resolve, as presented in a document on the Supreme Court web site: "Whether the court of appeals erred in vacating as arbitrary and capricious the FCC orders under review, which, among other things, relaxed the agency's cross-ownership restrictions to accommodate changed market conditions" and "whether the Commission may repeal or modify media ownership rules that it determines are no longer 'necessary in the public interest as the result of competition' without statistical evidence about the prospective effect of its rule changes on minority and female ownership."

The government (the FCC and Justice) and NAB say yes to both, but had the argument come after the inauguration of Democratic President-Elect Joe Biden, the government would likely not have pressed its appeal given Democrats' historic opposition to broadcast deregulation, though even Democratic FCC chairs have conceded the newspaper-broadcast cross-ownership rule is anachronistic.

Tuesday's virtual oral argument was the first time the Supreme Court has heard a challenge to one of a series of Third Circuit smackdowns of FCC Republican administration broadcast deregulation decisions dating back to 2003, when the FCC under then chairman Michael Powell attempted to relax some ownership restrictions citing changes to the market. 

The FCC is under a congressional directive in the 1996 Telecommunications Act to periodically review its regulations—first biennially, then changed to quadrennially—and repeal or modify any it concludes are not in the public interest. 

But, as the Supreme Court website frames it, the Third Circuit "in a series of three appeals spanning the past 17 years, the same divided panel of the United States Court of Appeals for the Third Circuit has repeatedly vacated the FCC's attempts to reform its ownership rules. The effect of those decisions has been to maintain in effect decades old FCC ownership restrictions that the agency believes to be outmoded."

The most recent Third Circuit decision was based only on "the ground that the agency had not adequately analyzed the potential effect of the regulatory changes on female and minority ownership of broadcast stations."

It is unclear when the Supreme Court will render a decision—it is under no timetable and it could be months—and whether if it upholds the Republican FCC, but without going to the statutory language clarification NAB seeks, a new, Democratic FCC, would restore the regs.

WASHINGTON—As part of the country’s renewed effort to increase inclusion, equity and diversity, NAB President and CEO Gordon Smith believes the broadcast industry can make strides by looking back at something from its past, the Diversity Tax Certificate Program.

In an op-ed on The Hill blog, Smith writes that local TV and radio broadcasters have done a great job covering the recent events—from the protests in the wake of George Floyd, Breona Taylor, Ahmaud Arbery and Rayshard Brooks' killings to COVID-19—but also believes these times have brought greater attention to “the woefully low percentage of communications outlets that are owned by people of color.”

While highlighting some of the efforts the NAB has made to try and increase those numbers, Smith acknowledges that the results has been minimal and believes that access to capital is the key moving forward.

This is where he believes that the Diversity Tax Certificate Program can come in. A FCC program instituted in 1978, the program gave tax incentives to companies that sold their majority interest in a broadcast station to minorities. From 1978-1995, minority ownership of broadcast stations grew 550%. Congress repealed the program in 1995, and minority ownership has taken a step back since, according to Smith.

PLUS: NAB Names Michelle Duke Chief Diversity Officer

There have been efforts since then to reinstate the program—including Smith participating in one such instance when he was a senator—and as recently as the Expanding Broadcast Ownership Opportunities Act introduced last year. NAB supports this legislation, as does the Multicultural Media, Telecom and Internet Council and the National Association of Black Owned Broadcasters, per Smith.

“A local media landscape that reflects our communities on the air, in the control booth and in the boardroom has long been a priority for America’s radio and television broadcasters,” said Smith. “Yet, we cannot accomplish this goal alone. Congressional passage of the Expanding Broadcast Ownership Opportunities Act would serve as a critical step in creating a more diverse broadcasting industry.”

Smith’s full op-ed is available on The Hill. 

WASHINGTON—The FCC has given its approval for Terrier Media, a newly formed company owned by Apollo Global Management, to acquire TV and radio stations from both Cox Enterprises and Northwest (NBI Holdings) with the understanding that the deal will be modified to adhere to new newspaper-broadcast ownership rules that came about following recent court proceedings.

The deal would see Terrier Media acquire all of the TV stations licensed to Northwest license subsidiaries for $384 million, as well as broadcast TV and radio stations owned by Cox for $3.1 billion.

When the U.S. Court of Appeals Third Circuit passed down its ruling in the Prometheus IV case dealing with vacated FCC broadcast ownership deregulation efforts, issues arose with the deal. According to the FCC, the parties amended the structure of the transactions to address any concerns that stemmed from the ruling.

However, the changes to the deal are not in place when it would now become official on Nov. 27, but the FCC has issued a 30-day window to allow all parties to become compliant.

“We recognize that the Television applicants may be in violation of certain broadcast multiple and cross-ownership rules following consummation as a result of the Prometheus IV decision,” the FCC’s Media Bureau wrote in its official decision. “However, we believe the unique circumstances of this case, specifically the Television Applicants’ specific commitments in the October 2019 Amendment and the timing of the Third Circuit’s decision, justify a brief 30-day period from consummation to come into compliance with these revised rules.”

Among the ways that the deal is expected to meet the new rules is for Northwest to surrender a license for one of its stations in Syracuse and Yuma not acquired by Terrier Media while also transferring all of the programming to the acquired station in each market. For Cox, Terrier says that it will change the publication frequency of three Cox newspapers in Ohio to three times a week.

The ownership rules weren’t the only objections to Apollo/Terrier’s acquisition of these stations. Multiple organizations, including Common Cause, filed comments saying how the acquisition would be against the public interest and hurt local TV coverage. However, citing its previous approval of the Nexstar-Tribune acquisition, the Media Bureau stated that it believes this acquisition would be in the public interest.

Read the FCC Media Bureau’s full order for more information.

WASHINGTON—Those interested in submitting comments in regards to the FCC’s 2018 Quadrennial Regulatory Review Notice of Proposed Rulemaking released this past December now know their deadlines.

The FCC’s Media Bureau has announced the comment deadline for this NPRM has been set for April 29, while the reply comment deadline is May 29.

As it is required every four years, mandated by Congress, the FCC takes a look at its broadcast ownership rules to see if they “remain necessary in the public interest as the result of competition,” or if they can be modified or eliminated due to marketplace changes. The rules up for review deal with local radio ownership limits, local TV ownership limits and the dual-network rule that prevents a single company from owning two of the major broadcast networks. The review asks whether these rules should remain, be modified or eliminated.

The FCC also has three proposals, in relation to a court requirement, that look at diversity in the review of its regulations that are open for comments. These proposals are on whether to extend the cable procurement EEO regs to broadcast, whether to identify a “tipping point” of source diversity in lieu of ownership rules and one on tradable diversity credits.

The 2018 Quadrennial Review NPRM is available on the FCC’s website.