NAB Planning Legal Action Over Delayed 2018 Quadrennial Review

NAB will take the FCC to court unless it delays the 2022 quadrennial review and concludes the 2018 QR, said an ex parte filing Wednesday and broadcast industry officials in interviews, “The Commission has no lawful basis for withholding the belated 2018 review, and that failure independently threatens the viability of the 2022 review,” said the filing in docket 22-459. Multiple broadcast attorneys said the trade group is resolved to pursue the matter in court and without FCC action NAB will petition the U.S. Court of Appeals for a writ of mandamus. The filing gives the agency until April 12 to toll the 2022 QR proceeding and conclude the 2018 iteration. It’s not likely the FCC will agree to the request, attorneys said.

If the agency doesn’t act, NAB “will deem the Request denied and reserves its right to seek judicial relief to protect its interests in lawfully conducted quadrennial broadcast ownership reviews,” said the filing. The FCC declined to comment. Although NAB previously has hinted at court action on the delayed QR before (see 2204070055), broadcast industry officials told us this time there are plans to file, and the trade group told that to some broadcasters on a conference call this week.

The broadcasters are hoping a court win will put more weight behind the statutory requirement that the FCC consider and remove out of date ownership laws and possibly also force the FCC to act more quickly, several broadcast attorneys said. If the agency brings back rules such as joint sales agreement attribution without establishing a more fulsome record, it will be easier for broadcasters to challenge them, attorneys said. The broadcasters would likely ask the court to compel the FCC to act by a date certain, broadcast attorneys said.

“I’d love to have a court take a look at this ,” said Rob Folliard, Gray Television senior vice president-government relations and distribution. It's rare for the D.C. Circuit to grant requests for mandamus, but the statute's explicit language and the years of delayed reviews are likely to work in NAB’s favor, attorneys said. The matter will likely turn on the makeup of the judicial panel the case draws, attorneys said. The NAB could also be disadvantaged by the U.S. Court of Appeals for the D.C. Circuit’s ruling on Prometheus IV, which affirmed courts must defer to the FCC on ownership decisions. The D.C. Circuit has ruled in the past that the FCC can’t just not act on a quadrennial review, said University of Minnesota media law professor Christopher Terry in an interview.

The already-delayed QR process is unlikely to be accelerated by “bogging it down” in legal proceedings, said former FCC Commissioner Mike Copps, now with Common Cause. Broadcast attorneys said when the courts take up mandamus petitions, the proceedings tend to move relatively quickly. But even with an NAB win, it would likely be the end of the year before the FCC would be required to act, said Terry. “If there’s anything the last 17 years [of QRs] have shown us, the courts telling the FCC to do something doesn’t necessarily mean that it’ll happen.”