NAB Proposes JSA Compromise Plan

Instead of putting the kibosh on all joint sales agreements, the FCC should propose the conditions the agency would require of legitimate station sharing deals — and then “prohibit only those operations that do not meet those standards,” according to a compromise being promoted at the agency by the National Association of Broadcasters.

At least according to the NAB, FCC Chairman Tom Wheeler’s current plan to crack down on JSAs and other station sharing agreements, which has been slated for an agency vote March 31, represents overkill.

Under the Wheeler proposal, the formation of new JSAs would be barred immediately, and broadcasters with existing JSAs would have two years to unwind, unless they can persuade the FCC to give them a waiver to continue a particular station combination.

As part of its evolving lobbying counterattack, the NAB is now arguing that the waiver policy that Wheeler is said to be considering as part of his JSA crackdown would put the burden of proof “on precisely the wrong parties — the ‘good operators’ that are promoting localism, diversity and competition,” the NAB disclosure filing says.

“Waivers are inherently uncertain and likely to create obstacles to the investment needed to purchase or run a television station,” the NAB filing continues.

The criteria that the NAB compromise proposal suggests the FCC endorse include requiring the brokered licensee to retain control over at least 85% of the station’s programming; keep at least 70% of ad sales revenue and “maintain at least 20% of station value in the license itself,” said the filing, signed by Jane Mago, NAB EVP and general counsel.

An FCC spokesman declined comment.

But Matt Wood, policy director of the watchdog Free Press, said it should be up to the broadcasters to demonstrate why any particular JSA should be permitted to continue. “The burden of proof should be on the parties proposing these kinds of transactions,” Wood said.

The NAB compromise proposal was presented to FCC Commissioner Jessica Rosenworcel, Commissioner Michael O’Rielly, Commissioner Mignon Clyburn, Media Bureau Chief Bill Lake, Maria Kirby, a top Wheeler adviser, and other agency staffers, during a series of  lobbying visits March 12 and March 13, the NAB filing said.

Accompanying Mago during her rounds at the FCC was Richard Gorman, president-CEO of Gocom Media, the NAB filing said. Gorman owns KHSL, the CBS affiliate in Chico-Redding, Calif. (DMA 132), and operates KNVN, the NBC affiliate in the market, through a JSA and other shared services agreements.

In a separate lobbying visit March 12, Gordon Smith, NAB president-CEO, and Rick Kaplan, NAB EVP, told Commissioner Clyburn that Wheeler’s proposed crackdown on JSAs was using a “sledgehammer where a scalpel, if anything, is far more appropriate,” according to the association’s disclosure document at the FCC.

“The [Wheeler] draft order is designed to address certain purported bad actors whose JSAs decrease localism and diversity,” Smith and Kaplan told Clyburn, the NAB disclosure filing said. “JSAs that decrease localism and diversity can more readily be addressed on a case-by-case basis or with clearly defined rules that prohibit specific behaviors that contravene the Communications Act,” the two continued. “The current approach instead punishes an entire industry and many of the communities that local broadcasters serve.”

Marci Burdick, Schurz Communications SVP and NAB TV board chairman, and Mago also panned Wheeler’s waiver concept during a separate visit with Clyburn on March 12, according to the NAB.

The FCC Media Bureau, meanwhile, also has announced that it will be looking more closely at TV station deals that include same-market sharing agreements.

In a March 12 public notice, the bureau said it was particularly concerned about same-market sharing deals that include contingent financial interests.

“Parties with pending applications proposing these types of combinations will have the opportunity to amend those applications, if they wish, to simplify the review process,” said the bureau’s Lake, in a statement.