Broadcast Industry Skeptical of FCC's Local Content Proposal

An FCC proposal prioritizing application processing for broadcasters that originate local programming may not offer enough incentive to change behaviors and would likely favor the largest broadcasters that already create their content, said broadcast attorneys and academics in interviews Thursday. Since the proposal would apply only to applications facing holds or petitions to deny, it also may not have a wide reach, said Fletcher Heald broadcast attorney Anne Crump. “Ultimately, it won't really make that much difference because the vast majority of applications just run a normal course.”

The NPRM, approved on a 3-2 vote with both FCC Republicans dissenting, tentatively proposes that expedited processing be granted to broadcast applications for renewals, assignments and transfers from stations that offer locally originated programming based on the broadcaster’s quarterly issues/programs list filings. The intent is to encourage local broadcast journalism, said Chairwoman Jessica Rosenworcel in a statement released with the item. “We want to ensure our policies support local journalism because it is so vital for our communities and our country.”

The expedited process wouldn’t apply to "simple" applications and those that don’t involve holds but would affect more complex filings: “applications that have holds related to the applicant’s failure to comply with Commission rules, or where petitions to deny or informal objections have been filed.”

Complex applications “generally require additional staff research and processing time,” dependent on how busy the FCC is and the matter's complexity, the NPRM said. “With respect to these more ‘complex’ applications, we propose that the staff first would consider those that are filed together with a certification that the station provides programming that is locally originated.”

It is not clear how much incentive expedited processing would be for broadcasters, industry attorneys told us. Generally, stations seeking license renewal aren’t in a hurry, said Crump. Stations engaging in a sale might want faster processing, but to take advantage of the proposal they would also need to anticipate that their transaction would be viewed as complex and then act in advance to offer local programming. Broadcasters would have to weigh the expense of originating local programming -- building a set, hiring talent -- against a nebulous decrease in their waiting period, said University of Minnesota journalism professor Chris Terry. “You're not giving them anything but telling them you're going to move them to the top of the stack, but you might be inflicting significant costs on them to reinstitute a local studio.”

Instead, the entities most likely to benefit from the proposal are larger broadcasters already delivering local programming, said Crump. The order cites Sinclair's programming rollbacks, but top-four network affiliates typically offer local newscasts, and the largest broadcasters generally own them, a broadcast executive told us. The policy would be “punitive” to smaller stations in markets that don’t have revenue for a local newscast, the broadcaster said. Sinclair and NAB didn’t comment.

Commissioner Nathan Simington raised concerns in his dissent that the policy could be used against broadcasters. “While the language of the item suggests that this means that broadcasters with locally-originated programming have a leg up, what it actually means is that any broadcaster who originates news for Market A from a studio in Market B might now have any application -- at least for which a ‘processing issue’ credibly can be discovered or manufactured -- slowed.” The proposal “is a tried-and-true incentive-based system that creates no new obligations, but instead puts in place a structure to better support the capacity for local news and content,” said Rosenworcel.

The NPRM frames the policy as a response to FCC elimination of the main studio requirement in 2017, but that rule didn’t mandate locally originated programming, Crump said. Many broadcasters fulfill the rule with local ad sales offices, not necessarily local programming, she said. In his dissent, Commissioner Brendan Carr said that if the current FCC objects to the elimination of the main studio rule, it should bring it back. "How can the FCC ground its localism proposal in the FCC’s record-less conclusion that the 2017 main studio repeal was an error while simultaneously not proposing to reinstate that rule?" Former FCC Commissioner Ajit Pai, who headed the commission in 2017, in an email said he appreciates the NPRM's “bipartisan recognition across Administrations that the main studio rule should not be on the FCC’s books.”