Broadcasters must show that the JSA and any "related agreements or interests" do not provide them "with the opportunity, ability and incentive to exert significant influence over the programming or operations of the brokered station," the FCC says. It adds that it will consider waiver requests on "an expedited basis."
FCC Makes It Tough To Get JSA Waivers
In its March 31 ruling giving broadcasters two years to unwind joint sales agreements used to get around the long-standing ban against owning two stations in small and medium markets, the FCC said it would consider requests for waivers. But the text of the ruling, released yesterday, erects a high bar for broadcasters seeking such waivers.
Broadcasters must show that the JSA and any “related agreements or interests” do not provide them “with the opportunity, ability and incentive to exert significant influence over the programming or operations of the brokered station,” the FCC says.
In evaluating requests, the FCC says it wants to see “(i)specific facts that show a lack of incentive or ability for the broker station to influence the brokered station’s programming or operations, and (ii) specific facts that demonstrate that the brokered station has the incentive and ability to maintain independent operations and programming decisions that are not influenced by the broker station and the incentive and ability to exclude the broker station from exerting influence over programming and operations. “
The FCC says that a waiver request that is “limited in scope (i.e., percentage of the station’s advertising sales) and duration so as to minimize or eliminate any influence on operations or programming is more likely to be successful than an open-ended request.”
The FCC says that it “will take into account the totality of the circumstances in order to assess whether strict compliance with the rule is inconsistent with the public interest.”
The FCC also says that it will consider waiver requests on “an expedited basis,” recognizing that some requests will come in the context of larger station deals that are time sensitive. It promised to “complete their review within 90 days of the record closing on such waiver petitions provided there are no circumstances requiring additional time for review.”
NAB SVP of Communications Ann Marie Cumming commented on the commission’s action: “NAB is currently reviewing the order with particular focus on details surrounding the waiver process. With the FCC now seeking to undo JSAs which it had previously approved, we believe there should be ample opportunities for broadcasters to pursue waivers that preserve the public services these station partnerships have made possible in local communities across the country.”
Here is a link to the text. The discussion of JSAs begins at paragraph 340.