Five-Member FCC Expected to Act on 2018 QR, EEO

Among the first broadcasting matters likely to be taken up by a full five-person FCC are the 2018 Quadrennial Review and the proposed Equal Employment Opportunity data collection, said broadcasters, public interest advocates and FCC officials in interviews this week. Both items have been long stalled at the agency and are considered nearly ready to be rolled out, industry and FCC officials told us. Such a 2018 quadrennial order likely wouldn’t include substantive rule changes, broadcast industry officials said. “I don’t have any great hopes of any massive deregulation,” said Gray Television Senior Vice President-Government Relations and Distribution Rob Folliard. The FCC didn't comment on the specifics of what Chairwoman Jessica Rosenworcel has planned for broadcasting once she has an FCC majority, but an agency spokesperson said the Chairwoman "will continue to prioritize protecting consumers and preserving competition, localism and diversity.”

The agency would likely vote the 2018 QR because it’s ready, has been long delayed, already had multiple comment periods, and isn’t expected to require major changes, FCC and broadcast industry officials said. The quadrennial review is the most obvious broadcasting matter for a empanelled FCC to take up, said Lerman Senter broadcast attorney Sally Buckman. Broadcasters have also been critical of the agency for starting the 2022 QR without completing the 2018 iteration, with NAB petitioning the U.S. Court of Appeals for the D.C. Circuit for a writ of Mandamus. Finishing the 2018 would answer those criticisms, and free up the agency to look to the 2022 QR, though broadcast attorneys said they wouldn’t then expect the 2022 QR to be resolved quickly.

The 2018 QR NPRM didn’t include any tentative conclusions, and broadcaster and FCC officials said they wouldn’t expect much to change for a draft QR order. The lack of deregulation in the 2018 QR was perceived as a sticking point for the FCC’s Republicans, which is why it was stalled under a 2-2 commission. Broadcasters want relaxed local radio ownership caps and prohibitions against top four duopolies, but numerous broadcasters said they don’t expect such changes from a 2018 QR. Public interest groups urged the agency to focus on the 2022 QR and meanwhile study the impact of the agency’s rules on diversity (see 2109030064).

The proposal to revive the FCC collection of equal employment opportunity workforce diversity data using Form 395-B was championed by Commissioner Geoffrey Starks since shortly after he joined the agency under the previous administration but has been stalled without a Democratic majority. It’s not clear where a draft order would fall on the matter of the data’s transparency, which has been the focus of broadcaster opposition to the proposal. Public interest groups want the data to be published and attributable to individual broadcasters, while NAB and others said it should be anonymized. Rosenworcel said at the 2022 NAB Show the agency was actively working on the EEO item.

The EEO proposal stems from an FCC program that was suspended in 2001 after two court cases raised constitutional concerns, and it's possible FCC action on it this time could be affected by anticipated U.S. Supreme Court rulings on affirmative action cases this month, broadcast industry officials said. SCOTUS rulings in SFFA v. UNC and SFFA v. Harvard -- widely anticipated to knock down affirmative action policies -- could affect what the FCC does, depending on the scope of the high court’s decision, said Multicultural Media, Telecom and Internet Council Senior Advisor David Honig. Honig said he's also concerned about cases involving whether entities can use race-neutral means of increasing diversity, such as Coalition for T.J. v. Fairfax County School Board. Whatever tack SCOTUS takes, entities opposed to affirmative action will try to interpret it as expansively as possible, said United Church of Christ Office of Communication Policy Advisor Cheryl Leanza. The FCC shouldn’t let such arguments limit the agency’s actions on diversity, she said.

Broadcast attorneys said they also expect FCC action on foreign-sponsored content rules, privacy concerns for ATSC 3.0, possibly FM6 LPTV stations, but also said the 2-2 FCC might also be able to act on those matters. Leanza said she believes a five-member FCC could take up proposals for requiring diversity for content vendors (see 2207260003).

Broadcasters have anticipated the Rosenworcel-led FCC would look to eliminate the UHF discount on broadcast ownership, but it’s not widely expected to be an early target once there are five commissioners, FCC and industry officials said. The matter is complicated and would be likely to drag on, industry officials said. There's also an open proceeding on whether the agency has authority over the national cap, noted Wilkinson Barker broadcast attorney David Oxenford in a blog post. “That proceeding has never been resolved, and this new Commission has not yet been faced with a large acquisition that would for the first time put any company over the limit that would exist but for the UHF discount,” Oxenford said. Folliard said he believes the UHF discount would be a low priority for the agency because broadcasters have avoided testing the issue, only pursuing deals that would still be viable without the discount. “The industry has already adjusted and assumes it doesn’t exist,” he said.