FCC Outlook: Until Sohn Is Confirmed, The Commission Is Stalled

If and until the Senate confirms Democrat Gigi Sohn as the FCC’s fifth commissioner, not much can happen at the agency, with most votes facing a 2-2 split vote between FCC Chair Jessica Rosenworcel and Democratic commissioner Geoffrey Starks and Republican commissioners Brendan Carr and Nathan Simington.

On March 3, the Senate Commerce Committee voted 14-14 to advance Sohn, along with other nominees, to the Senate floor for a vote, but with no positive or negative recommendation. The tie also requires an extra procedural vote to discharge the nomination from committee so that it can move to the floor.

Sohn has proved divisive in a Senate that’s already divided along partisan lines. She’s a former consumer advocate who served as counselor on internet and telecommunications issues to FCC Chairman Tom Wheeler from 2013-16. She would be the first openly gay FCC commissioner.

Leading up to the midterm elections, some Republicans have started lining up opposition to her, with even Tucker Carlson and Fox News weighing in against Sohn’s nomination.

“Time is no one’s friend in the Senate,” said one Washington observer. “The longer she sits there, the longer people can shoot at her.”

Time is also an issue with a very tight floor agenda in the Senate, especially as the midterm elections draw closer. But those same observers expect Sohn to get confirmed in the next few months and Senate Commerce Committee Chair Sen. Maria Cantwell (D-Wash.) has repeatedly backed her.

Once Sohn is confirmed, the FCC will be able to focus on issues of import to the Biden administration and the TV industry, particularly net neutrality and media ownership.

Broadcasters Want Relief From Ownership Restrictions

Many ownership regulations that previously vexed broadcasters were at least temporarily resolved in April 2021. At that time, the Supreme Court reversed a decision by the Third Circuit Court of Appeals that overturned a November 2017 FCC vote under Chairman Ajit Pai. That vote eliminated the newspaper-broadcast and the radio-TV cross-ownership rules; allowed ownership of two stations in markets with fewer than eight independent voices, and opened up the possibility of owning two of the top-four TV stations in a market on a case-by-case basis; allowed owners to operate joint sales agreements between stations without counting them toward ownership; and created an incubator program intended to develop more diverse ownership.

While the Third Circuit’s ruling would have reverted those rules back to the FCC for review, the Supreme Court overruled that, thereby reinstating the FCC’s 2017 vote and easing the rules.

Two major broadcast ownership rules that still exist are the 39% national ownership cap, which is included in the 1996 Telecommunications Act, and the 50% UHF discount, which the FCC enacted in 1985.

“Media ownership rules have fallen so far behind the technology,” said David Burns, an attorney at Washington communications law firm Lerman Senter. “It’s now a totally different world with so many different competitors. Even with respect to local news, broadcast TV competes with other local news sources, and certainly with other national and global news outlets. All this makes it hard to justify multiple ownership rules.”

And to a large extent, the country’s biggest broadcast groups — and particularly Nexstar and Sinclair — have found ways around many of these rules with local marketing and joint sales agreements.

“Broadcasters create these fictions and then the FCC turns a blind eye to it,” said Art Belendiuk, partner at the Washington communications and media law firm of Smithwick & Belendiuk, which has a lawsuit currently in play against Sinclair Broadcast Group over its bending of the rules. “If you think the [media-ownership] cap needs to be there, enforce the cap. If not, lift the cap.”

“It would be nice if you could consolidate because you would have more options as an operator,” said Belendiuk, including radio stations in his argument. “Every time it comes up, it’s like ‘what about all of these media companies who own all of this and nobody says boo to them?’”

Should Sohn be confirmed, some broadcasters are concerned that the FCC will again try to reinstate many of these broadcast ownership rules, although that’s only conjecture at this point.

Also Of Concern: ATSC 3.0

In the meantime, broadcasters’ focus is on a few issues: the transition to ATSC 3.0 or NextGen TV; the FCC’s completion of its Congressionally-mandated quadrennial review of media ownership regulations, which was due to be completed in 2018; more oversight of big tech companies; and leveling the playing field so that local journalism can operate in a fairer marketplace.

“Our biggest priority continues to be the deployment of ATSC 3.0,” said NAB President-CEO Curtis LeGeyt in a pre-NAB Show interview. “While there is not a specific commission component to that right now, we are continuing to work with the commission to ensure that it sees those opportunities and how they are necessary for our business to remain viable. We need this commission cheerleading for this new technology.”

NAB also is pushing the FCC and Congress to modernize media ownership laws to reflect the realities of the marketplace.

“I think that our legal team has done a tremendous job populating the record with data that demonstrates that local broadcasters are competing for audience and ad dollars in a marketplace that is much broader than just other local broadcasters — principally the tech behemoths,” said LeGeyt. “In our view, the last two years of COVID have only underscored the work that broadcasters are doing. We can only continue doing that if we can invest in our media and we need some scale to do that.”

The NAB also is backing several bills moving through the House and Senate that are focused on local journalism.

The Journalism Competition and Preservation Act would allow broadcasters to jointly negotiate the value of local content that is accessed through platforms such as Google and Facebook. The Local Journalism Sustainability Act, which was a part of President Biden’s Build Back Better bill that passed the House but stalled in the Senate, offers tax credits for supporting local journalism outlets.

“Congress is very receptive and there is real bipartisan interest in helping to ensure that there are viable local news outlets,” LeGeyt said.