NAB and FSF: FCC Action vs. Gray Could Influence Other Agencies, Rulemakings

The FCC’s $518,000 enforcement action against Gray Television over the broadcasters’ buy of a top-four network affiliation (see 2305240068) could have implications for future FCC proceedings and other federal agencies, said NAB and the Free State Foundation (FSF) in amicus briefs filed with the 11th U.S. Circuit Court of Appeals Thursday in docket 22-14274. “Unless the Court vacates the FCC’s forfeiture order, this case could serve as a roadmap for agencies to flout due process and to abridge free speech through the arbitrary use of authority,” said FSF. The agency’s forfeiture order argued Gray violated a rule designed to prevent stations from swapping network affiliations in the same market to create new top-four combinations, but that rule had never before been interpreted in that way, and the FCC gave no prior notice its interpretation had changed, said the FSF brief. “The responsibility does not fall on private parties to guess what the agency might deem to pass muster under yet-to-be determined extensions of existing regulatory policy.” The FCC doesn’t prevent stations from creating new top-four combinations by reaching network affiliation deals with the networks, NAB said. “It makes no sense to distinguish between executing an affiliation agreement with the network, and being assigned a network affiliation agreement by another station (especially when network affiliation contracts routinely require that networks consent to assignments),” NAB said. Both NAB and FSF connected the FCC’s forfeiture order to the agency’s delayed quadrennial review of broadcast regulations. The FCC “erred in broadly applying its ownership rules,” when “the agency steadfastly refuses to complete on a timely basis the periodic reviews that Congress has mandated,” FSF said. The FCC’s interpretation of its authority over content could have implications in the that quadrennial review because MVPDs have called on the agency to limit broadcasters using multicast channels and low-power TV stations to create top-four combinations. “Given the potential consequences in other regulatory contexts, it is important that this Court in this case enforce the statutory and constitutional limits on the Commission’s power to regulate broadcast programming,” NAB said.