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FCC Media Bureau issues Public Notice seeking comment on 50 percent UHF discount

The FCC Media Bureau released a Public Notice Feb. 19 seeking comments on the Commission’s decision in its 2002 Biennial Regulatory Review Report and Order to retain the 50 percent UHF discount when determining the national TV ownership cap.

The review and media ownership recommendations, which the Commission adopted in June 2003, raised the cap on the national audience one television group or network could reach to 45 percent. Subsequently, the Consolidated Appropriations Act passed by Congress in January rolled the cap back to 39 percent, 4 percent higher than the level that existed prior to the Commission’s action.

The UHF discount refers to the way the audience of UHF channels is counted. In the early days of UHF broadcast when many viewers could not receive UHF stations or could only receive poor signals, the Commission determined it would “discount” a UHF channel’s audience by 50 percent for the purposes of determining its contribution to a network’s overall national reach. In other words, a UHF channel serving a DMA with 1 million viewers would only be regarded to have 500,000 potential viewers.

In its Public Notice, the Media Bureau explained: “We are opening a limited comment period in order to afford petitioners and commenters an opportunity to update the record as to the effect, if any, of the Appropriations Act on our authority and decision in this area. We invite comment as to whether the enactment of the 39 percent national cap affects our authority to modify or eliminate the UHF discount. For example, does passage of the 39 percent cap signify congressional approval, adoption, or ratification of the 50 percent UHF discount?”

Comments must be filed with the Commission on or before March 19 and reply comments on or before March 20. They may be filed through the Commission’s Electronic Filing System or on paper (five copies are required).

On Feb. 23, Commissioners Michael Copps and Jonathan Adelstein issued a joint public statement on the FCC’s Web site reacting to the Public Notice. “We were surprised to learn last Friday that agency staff had released a Public Notice seeking comment on the UHF Discount,” the statement quoted the commissioners as saying.

“With an issue of this importance, it appears to us to be a highly unusual and irregular step for the staff to take without input from members of the Commission. The timing of this move -coming little more than a week after the oral argument in this case coupled with an immediate communication from the FCC General Counsel to the Third Circuit seeking to hold the issue in abeyance based on the staff Public Notice- may lead to questions of whether this is an attempt to avoid a substantive court decision on an apparent weakness and inconsistency in the June 2nd media ownership order.”

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