Congress Should Act On JSA Grandfathering

Many in Congress would no doubt like to stick it to FCC chief Tom Wheeler for some of his bold moves. Now they have a chance. Four senators have introduced a bill that would grandfather existing JSAs. Passage would give a nice boost to broadcasters who do nothing but provide a superior news and entertainment TV service to the American public free of charge. And it would show that Congress still has some say in FCC affairs. Addendum: The NAB is going to ask the FCC to give broadcasters more time to move their channels during the incentive auction repack. The FCC should grant it because it just can't be done in 39 months.

I’ve always like the phrase “creature of Congress” to describe the FCC. In my mind, it conjures up a hideous, black-eyed beast darting in and out of the dark corners of the nation’s capital. If you could trap it, it would be best kept in the attic along with Dorian Gray’s portrait.

What it actually means, of course, is that the FCC is an agent of Congress. As such, it is supposed to do the bidding of Congress as it goes about implementing the communications laws. It is supposed to defer to Congress.

But that’s never really been true on my 35-year watch.

If the FCC is a creature of anything, it’s not Congress. It’s the White House. That’s because the White House appoints the chairman who is endowed with great power. He totally controls the agenda and directs the bureaucracy through his staff appointments.

And normally, if the White House is doing its job, he has the votes of two other commissioners he can count on that gives him a majority at the five-person agency on all votes.

At his annual NAB breakfast this year, communications attorney Erwin Krasnow summed it up after of speech by Republican Commissioner Michael O’Reilly. The FCC is a democratic institution committed to the principal of one man, one vote, he said, kidding on the square. “And the one man with one vote is [current Chairman] Tom Wheeler.”


When the FCC does something that doesn’t sit with the communications policy-making powers-that-be on Capitol Hill — the relevant committee and subcommittee chairmen — they tend to do a lot of kvetching and threatening of the FCC budget. But basically they are feckless. A bold chairman like Wheeler goes his own way.

Two months ago, Wheeler resurrected old Title II telephone regulations and used them to impose a net neutrality regime on broadband providers. I and most other observers are convinced that Wheeler was essentially acting at the behest of the White House.

It was an affront to Republicans in Congress, yet all they have done is scold Wheeler during some hearings and float some legislative language to make the FCC more “transparent.”

If Congress is going to assert itself at the FCC, it has to do it the old fashioned way — by passing laws countermanding the FCC actions it doesn’t like.

And I have a wonderful opportunity for Congress to do just that.

A little more than a year ago, Wheeler and his Democratic majority cracked down on joint sales agreements and other contractual arrangements that allowed broadcasters to operate two stations in markets where the rules say they may not own two.

The move was a blow to broadcasters who had built businesses around the duopolies that the arrangements made possible. It was made worse by the FCC’s decision not to grandfather existing JSAs and to give broadcasters just two years to unwind them. (The deadline was subsequently extended six months to the end of next year.)

Predictably, broadcasters sued in the U.S. Court of Appeals in Washington.

While the suits percolate, four senators opened another front on Monday, introducing legislation that would grandfather existing JSAs, which at this point would satisfy most broadcasters. Opportunities for new JSA deals will likely diminish after the incentive auction weeds out potential JSA partners.

Broadcasters are behind the legislation, but none is claiming credit for it. That would be poor form. The public is supposed to believe that senators think up and write all their own bills.

The legislation is a long shot. Congress is not quick to act on anything these days, and so far no House companion has appeared and no lawmakers on the key committees have hopped on board.

However, there is reason to hope. The backers of the bill are a nice mix of Democrats and Republicans and one is a heavyweight. That would be Chuck Schumer, the outspoken New York Democrat who has been harping on the unfairness of the JSA action for a year. In January 2017, he may succeed the retiring Harry Reid as Senate Minority Leader.

Many Republican lawmakers would no doubt like to stick it to Wheeler & Co. by passing legislation undoing his heavy-handed, Obama-blessed version of net neutrality, but that is way too messy and controversial. If there is going to be any undoing, it will likely be the courts doing it.

By contrast, the JSA bill should be doable, assuming broadcasters can rally to give it a big push. It’s just two pages long.

Passage would give a nice boost to broadcasters who do nothing but provide a superior news and entertainment TV service to the American public free of charge. Surely, that is worthy of bi-partisan support.

And it would demonstrate that Congress can, on occasion, keep its creature on a leash.

Addendum: Coming out of the NAB Show last month, I wrote that the FCC’s timetable for broadcasters to move to new channels in the incentive auction repacking of the TV band was way too tight.

The agency is giving broadcasters just 39 months from the time they get their new channel assignments to move their antennas and other transmission facilities to those channels. With as many as 1,000 stations expected to be on the move, it simply can’t be done.

There are just not enough consulting engineers, antenna manufacturers and tower crews to do that job in so short a time. And broadcasters who miss the deadline will be faced with not getting reimbursed by the government for the cost of moving their channels and, worse, losing their licenses.

The good news, I’ve learned, is that the NAB is going to redouble efforts to buy more time for broadcasters. It will begin lobbying the FCC in earnest next week armed with a new study outlining the big disconnect between what the FCC is asking the industry to do and what it actually can do.

Let’s hope the FCC is paying attention.

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or [email protected]. You can read earlier columns here.

Comments (8)

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Ellen Samrock says:

May 8, 2015 at 12:52 pm

Make no mistake: the Democrats are out to destroy this great industry of ours. This became clear the moment Barak Obama and Blair Levin drew breath and outlined their plan to sell off broadcast spectrum, later solidified in the now outdated NBP. Then Jessica Rosenworcel illegally re-defined LPTV and translators as secondary to everything and without any rights which became the basis for much of the FCC’s rule makings and decisions on the low power TV service. Tom Wheeler seeking to “unwind” TV station JSAs including grandfathered JSAs is yet another example. So this bill protecting grandfathered JSAs is righteous push back. It needs to pass but it also should be just the beginning. Like the song says, “You don’t know what you’ve lost ’til its gone.” That certainly applies to broadcast television. We can’t let the Dems destroy free TV just to pleasure their friends in the wireless industry and the Silicon Valley brats; and all for the purpose of strengthening their political power base. Once free TV is gone, it’s gone forever.

    Teri Keene says:

    May 12, 2015 at 10:13 pm

    I live in an area where a lot of people rely on OTA (and also poor) but vote Democratic, and without OTA they’re up the creek without a paddle, so what the fuck is your point?

Christina Fleming says:

May 8, 2015 at 3:45 pm

Give me a break. JSA’s and joint operating agreements and local management agreements are nothing but to make the fat cats in broadcasting bigger. They take out 80% of a stations staff. The congress or FCC never intended for this to happen. Now we have 1/50th of the broadcasters we used to have with the 7/12 station rule and every day they are firing 100 new people. There is no diversity in programming and a few groups decide what swill be cleared in syndication. Destroy our great industry? That is exactly what JSA’s have done.

    Wagner Pereira says:

    May 8, 2015 at 9:07 pm

    Stating that a JSA takes out 80% of a stations staff is ridiculous and unfounded. EVERY Industry Consolidates. Always have. Always will. I can remember not that many years ago when Banks in Texas could have no more than 1 Branch Statewide (and of course Regional/National Banks did not exist). How many cellular companies were there in the late 80s when there was far less frequencies (and only an A or B system). Music Groups (or Record Companies) numbered 50+ not that long ago. How about Car Companies? Airlines? Magazines? The list goes on and on and one. Get over it.

Evan Ortynsky says:

May 8, 2015 at 5:20 pm

But you miss an important point CEOBOY711, Smaller markets do not have the ad revenue to support all 4-6 networks standing alone as stations with or without news. Many of these area’s will only have 1 or 2 networks if the JSA’s are forced out. I think instead of a blanket Grandfathering, each market should be looked at and if there are willing parties to purchase and run a new station in that area, then yes, break them out, but many communities are just to small and you will end up with cable and satellite bringing in out of market stations to keep networks on the air in those smaller markets. That is a loss to the area in local programming options.

Manuel Morales says:

May 9, 2015 at 8:50 am

Anyone who doesn’t understand the need for a relaxation of the ownership rules or at the least allowance of JSA/SSA type relationships doesn’t understand this business.

    Wagner Pereira says:

    May 9, 2015 at 11:06 pm

    So true. Shows who the real broadcasters are.

    Tim Pardis says:

    May 14, 2015 at 3:56 pm

    I understand that a big part of the business has to do with minimizing expenses (CEOBOY711’s observation as direct compensation is always the largest expense category in a budget) and delivering maximized profits to the mega-media corporations who are mostly concerned with shareholder value and executive compensation. Even though you who are “still in the business” have COMPLETELY forgotten the basic principle of the Communications Act, it still remains that the electromagnetic spectrum that is used for broadcasting belongs to WE THE PEOPLE, not WE THE CORPORATIONS. While most of WE THE PEOPLE want more efficient personal wireless communications (requiring additional spectrum), WE THE (broadcast/media) CORPORATIONS want the government regulatory body and/or Congress to insure their established business is protected from any and all encroachment while at the same time exploiting any and all loopholes to further consolidate their holdings as their established technology gives way to newer ones. In light of those technological changes, perhaps it is time to revisit the ownership rules again. But, don’t codify the regulatory work-arounds, otherwise known as JSA’s, as law. Change the regulations with the full participation and consent of WE THE PEOPLE.