FCC Defends 2018 QR Order in 8th Circuit

The FCC’s 2018 quadrennial review order “reasonably” found that competition hasn’t diminished the need for the agency’s broadcast ownership rules. Moreover, the agency was within its authority to expand rules limiting broadcasters from owning multiple top-four network affiliates, the FCC said in a respondent's brief filed in the 8th U.S. Circuit Court of Appeals. The agency was responding to challenges of the QR order that multiple broadcasters brought (see 2407160069). Though filed Friday, the brief wasn’t public until Monday. “The record showed that despite the proliferation of non-broadcast sources of audio and video programming, broadcast radio and television remain virtually the only providers of local programming,” the FCC said. Broadcasters “provide the lion’s share of the local news and community-oriented programming that is essential to achieving the FCC’s goals of promoting localism and viewpoint diversity,” therefore justifying the retention of limits on local radio and TV ownership, the agency said. The FCC dismissed broadcaster arguments that its approach means broadcasters could never obtain relief from agency ownership restrictions even if the industry were on the brink of death. “This doomsday scenario is purely hypothetical,” the FCC said. “Neither broadcast radio nor broadcast television is currently in such dire straits.” In future Quadrennial Review proceedings, “if non-broadcast providers of audio and video services start offering more of their own local news and community-oriented programs in competition with the local programming of broadcast stations,” the FCC could revise its market definitions, the filing said. The agency expanded the top-four prohibition to include multicast channels and low-power stations to prevent broadcasters from exploiting workarounds to limits on owning multiple top-four stations in the same market, the brief said. MVPDs “have first-hand experience of the harm caused by certain broadcasters’ end-runs around the rule,” said NCTA and the Advanced Television Broadcasting Alliance in an intervenor brief supporting the FCC position. “Those end-runs cause the same public interest harms that the Top-Four Prohibition was meant to prevent and should therefore be prohibited for the same reasons.” The court should reject broadcaster arguments that the expansion of the top-four rules regulates content and violates the First Amendment, the FCC said. The rule change “targets transactions involving network affiliations that may be used to evade the local television rule, and it applies regardless of the content of programming.”