JESSELL AT LARGE

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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. It you could trapped 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.”

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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 the Wheeler was essentially acting at the behest of 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.” I think Wheeler actually enjoys the give and take of those hearings.

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 diminished 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 convention 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 channels 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 simply 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.


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