Former FCC Chairman Mark Fowler on the commission ordering a Media Bureau formal hearing on the Standard General-Tegna merger: “The commission has applied the standard in an unprecedented, unconstitutional way by modifying the intended purpose of the statute to its customized purpose.”
OPEN MIKE BY MARK FOWLER
FCC’s Blow To Standard General-Tegna Deal Is Runaway Regulation
The FCC’s decision to order the agency’s Media Bureau to hold a formal hearing on charges leveled against the Standard General-Tegna deal starkly illustrates the shockingly unconstitutional application of the “public interest, convenience and necessity” standard by a runaway commission. The commission has applied the standard in an unprecedented, unconstitutional way by modifying the intended purpose of the statute to its customized purpose. It puts a heavy butcher’s thumb on the normal functioning of a dynamic telecommunications marketplace.
Wandering in a legal stupor from established law into the underbrush, the commission stops transfer approval until Standard dons knee pads and pays homage: It must not increase retransmission consent fees; it must not decrease news staffs. (Shall we remind the commission here that the First Amendment is hostile to government regulation of speech, directly or indirectly?) Stretched out on the rack, Standard relents: It will not implement those bad things.
Nevertheless, after more than 300 days of inactivity, the agency kills this major business transaction by ordering a lengthy evidentiary hearing on its “concerns” — concerns which had been satisfied. The hearing is overkill on two simple issues that could have been addressed with conditions. The hearing assures that the transaction will fail to close by the contract closing date, triggering a $130 million breakup fee. What? The commission bureaucrats have toiled for 300 days and produced bureaucratic madness that they put people in asylums for. An observer must ask, what in the world is going on here?
This case also perfectly tees up a broader issue: Is the public interest standard constitutional today, if ever it was? A statute can be declared unconstitutional if it is impermissibly vague or overbroad, either in a specific case or generally, depending. Then just what is “the public interest,” the “public convenience” and “the public necessity”?
Why of course, it’s what three of five politically appointed commissioners say it is. This opens Pandora’s box, which may prove a curse to mankind, but not to the legal bar. The Standard case exemplifies runaway regulation, unfairness, subjective judgment and unpredictability — all fatal to the raising and allocation of the people and capital necessary to power broadcasting’s future growth and consumer choice. The holding in Standard really is “Because I said so.” It is a strange fossil that must be killed, so that the older it gets, the deader it becomes.
Kudos to dissenting Commissioners Brendan Carr and Nathan Simington, and NAB CEO Curtis LeGeyt.
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Mark Fowler was chairman of the FCC from 1981 to 1987.
Comments (2)
Former Producer says:
March 2, 2023 at 12:26 pm
Mark Fowler is a Reagan appointee who spearheaded the repeal of the Fairness Doctrine and promoted deregulation of the broadcast industry. He’s the last person who should be whining about an “unconstitutional” and “runaway” FCC.
[email protected] says:
March 2, 2023 at 11:51 pm
Former Producer The Fairness Doctrine needed to be repeal as it was outdated in the 80s local broadcast still gives both sides to the story and public affair shows where they talk to both sides. Local broadcast has kept the fairness doctrine even know it’s been off the books for decades. Mark Fowler has every right to speak out because of free speech and a free country you don’t get it Former Producer.
I’m not for the Standard General TEGNA merger it is dead Mark is right about the FCC they do bend the rules Jessica has abused her power she was wrong to fine Sinclair for the Hot Wheels show if I was the CEO of Sinclair I’d sue the FCC.