The Federal Communications Commission chose the Friday going into Martin Luther King Day weekend to release the latest media-ownership diversity numbers and the tale of the tape for broadcast TV — as well as radio — still reads majority white and male on both the commercial and noncommercial side, though there is slight progress.

The sixth biennial report on ownership of broadcast stations covers commercial and noncommercial, full-power and low-power TV and radio stations and is based on data as of October 2021.

Looking at full-power commercial TV stations, the report said men had a majority interest in 51% of those stations, down from 56% in 2019, while women held majority interests in 6% of those stations. Female ownership is up a tick from 5% in 2019 (for 39% of the stations, no single entity had a majority interest).

Black/African Americans accounted for 3% of the majority interests in full-power TV stations in 2021, up from 1% in 2019, while Asian Americans had 1%, up from 0% in 2019.

No Native American, Alaska Native, Native Hawaiian or Pacific Islander held a majority interest in 2021, as was also the case in 2019.

On the noncommercial side, men held majority interests in 71% of full-power noncommercial TV stations, down slightly from 72% in 2019. Women accounted for 20% of the majority interests in those stations, up from 20% in 2019. Blacks/African Americans represented only 1% of majority owners, up from 0% in 2019. But no Asian, American Indian, Alaska Native, Native Hawaiian or Pacific Islander held a majority interest.

Across radio and TV, men had attributable interests in 61% of commercial broadcast stations while women held only 9% and Hispanics/Latinos 6%. White persons held 73% of majority interests while racial minorities only 4%. African Americans had majority interests in only 2% of stations while Asians held 1% majority interests. No American Indian, Alaska Native, Native Hawaiian or Pacific Islander held a majority interest.

The FCC said the report should come in handy “to the public, Congress and the commission because they provide an insight into the ownership of broadcast stations, both commercial and noncommercial, over time, that could be relevant to the commission’s policymaking as well as used by interested parties.” ▪️

Democratic FCC nominee Gigi Sohn has promised that, if confirmed to the open seat, she will recuse herself from decisions where retransmission consent or TV broadcast copyright are material issues.

That came in a letter to acting FCC general counsel Michelle Ellison Thursday (January 27), according to a copy of the letter obtained by NextTV.

Sohn was a board member of TV station streamer Locast, which a court concluded had violated copyright by streaming broadcasts without permission or compensation. Republicans and some broadcasters had issues with that connection, suggesting it could be a conflict of interest.

Sohn is looking to put those concerns to rest.

Sohn said she was recusing herself from retrans rule decisions because back in 2010, when she was president of Public Knowledge, she signed on to a petition for rulemaking seeking changes and additions to the retransmission consent rules, a petition that was the subject of an FCC docket (10-71).

One of the docket 10-71 changes, which the FCC adopted in 2014, was to say that joint retrans negotiations by stations among the top-four in audience share in a market-- and not commonly owned--violated the FCC's definition of good faith negotiations. Broadcasters opposed the changes, while MVPDs generally supported them.

Sohn said that while she was not required by her ethics agreement to recuse herself from the docket or anything else regarding retrans or broadcast copyright, she would do so "to avoid any appearance of impropriety and in the interest of ensuring that the public has full confidence that policymakers will make decisions free of bias."

She promised that, for the first four years of her term as commissioner "I will recuse myself from participation in FCC Docket No. 10-71 or any related FCC docket concerning the same issues." But she went beyond that.

"For the first three years of my term," she wrote. "I will recuse myself from any proceeding before the Commission where retransmission consent or television broadcast copyright is a material issue in the Commission’s disposition of that proceeding." She defined material issue as "one that has influence and effect on the ultimate disposition of the matter or matters considered in the proceeding."

She said she would look to the general counsel's office to "make any necessary determination on the application of this recusal to a particular matter."

But Sohn said her recusal did not extend to any issue related to Section 202, media ownership rules, or any transfers of control of broadcast, cable or satellite companies.

National Association of Broadcasters President Curtis LeGeyt signaled NAB was supportive of Sohn joining the commission. 

"Ms. Sohn’s recusal agreement resolves the concerns NAB raised regarding her nomination," he said in a statement on the recusal agreement. "NAB appreciates Ms. Sohn's willingness to seriously consider our issues regarding retransmission consent and broadcast copyright, and to address those concerns in her recusal. We look forward to the Senate moving forward with Ms. Sohn’s confirmation and are eager to work with her and the full complement of commissioners in the very near future.”

Sohn is scheduled to get a vote on her nomination in the Senate Commerce Committee next week.

Sen Roger Wicher (R-Miss.), who had issues with Sohn over Locast, among other things, apparently still does, even given the recusal. 

“Questions about Ms. Sohn’s potential conflicts of interest have been dismissed as without merit by the White House and Ms. Sohn’s friends in the telecommunications advocacy community," he said in response to the news o Sohn's letter. "Now comes this unprecedented recusal. The FCC is too important to have a commissioner who cannot serve in a significant capacity. Ms. Sohn’s recusal further underscores the need for a new hearing.  Senators should be given the opportunity to question the contours and scope of the recusal, how it would impact the operations of the commission if Ms. Sohn is confirmed, and whether the recusal was developed in coordination with any third parties. I am disappointed that the Chair of the Committee has not responded to my request for another hearing on this important nomination.” ■

The FCC has released its fifth report on broadcast ownership, according to FCC Commissioner Geoffrey Starks, and there is some slight improvement in the number of women and minority-owned stations, but the emphasis is on the "slight."

The number of women who owned full-power TV stations in 2019, the latest year for which the FCC has figures, was up from 73 to 77, but Starks points out that means women own only 5.6% of the total of 1,369 full power TVs.

The number of African American-owned TV stations was up from a dozen in the previous report (2017 figures) to 18 in 2019, or what Starks called an "anemic" 1%. But media diversity for Asian Americans went in the other direction, from nine full-power stations in 2017 to only 4 in 2019.

"The numbers don’t lie," said Starks, "we must ensure that ownership at broadcast stations better reflects the rich diversity of the communities that they serve."

Also Read: FCC's Geoffrey Starks: HBCUs Must Have Reliable, Affordable Access

Starks said one way to do that would be to support legislation, the Expanding Broadcast Opportunities Act of 2021, introduced by Rep. G.K Butterfield (D-N.C.), which would revive the FCC's minority tax certificate program, which gives media companies a tax break for selling broadcast properties to women and minorities.

Rep. Yvette Clarke (D-N.Y.) has also recently introduced HR 5056, the MVPD Tax Credit Program, which would give a tax credit to MVPDs and their over-the-top streaming counterparts for carrying diverse, including minority targeted, independent programming.

The Supreme Court of the United States’ unanimous decision in FCC v. Prometheus Radio Project may be long past due for much needed regulatory relief from anachronistic ownership restrictions that make no sense today, but it is welcome news nonetheless. It is no exaggeration to say that the modern video marketplace is the most vibrant the world has ever seen, and growing more competitive every day. But until today’s (April 1) ruling, local television broadcasters, like my seven African-American owned Howard Stirk Holdings stations, could not maintain healthy, economically viable businesses in that hyper-competitive marketplace because a single panel of the U.S. Court of Appeals for the Third Circuit unfairly hamstring local journalism and froze in place ownership rules that have not reflected true marketplace conditions for years. Thank Heaven that ice dam has now been broken.

Three of the FCC’s current ownership rules are impacted. The first is the Newspaper/Broadcast Cross-Ownership Rule. Back in 1975, in order to promote competition, the FCC forbade ownership of a local newspaper and a local television station in the same market. Sadly, today the newspaper industry is all but dead and the video marketplace looks nothing like it did then. The second is the Radio/Television Cross-Ownership Rule. Initially adopted in 1970, that rule limits the number of combined radio stations and television stations that an entity may own in a single market. The third is the Local Television Ownership Rule. Initially adopted in 1964, that rule restricts the number of local television stations that an entity may own in a single market.

Pursuant to Section 202(h) of the 1996 Telecommunications Act -– a/k/a  the quadrennial review –- the FCC is required to modernize its ownership rules to reflect changing competitive realities. While the FCC tried several times over the years to update its rules accordingly, the Third Circuit consistently rejected those efforts and left the broadcast industry frozen in a bygone era, as if there was only limited local media competition, a time when there were only three national broadcast networks and a small handful of broadcast TV stations in most markets.

In the past the FCC believed that competition, localism, and viewpoint diversity were best served by constraining common ownership of the relatively limited number of local media outlets. Today’s media marketplace is vastly different. There are thousands of video programming options, and multiple platforms deliver video programming via cable, satellite, wireless, and the Internet. Viewers can access an almost infinite library of video programming virtually whenever and wherever they choose.

Although the marketplace has transformed in recent decades, the public service role of local broadcasters has not changed. The broadcast industry provides a free-over-the-air service to nearly every community in the nation, creating and distributing news, weather, public affairs, sports, and entertainment programming, including needed public health and emergency information. The coronavirus pandemic has reinforced the critical importance of reliable access to local and national news and information programming via local broadcast television.

Television stations cannot fulfill that critical role if their businesses are bound by out dated policies obstructing their ability to survive in today’s rapidly changing, increasingly diverse, and exceedingly competitive media marketplace. Like every other business, the survival of local television depends on economic viability. Stations that cannot compete cannot survive, and broadcasters today face competitors too numerous to count: cable programmers, satellite services, online news and programming providers, subscription video-on demand platforms, video programming websites, and many more. In stark contrast to television broadcasters, nearly all of these competitors are free to operate in local markets unconstrained by the FCC’s decades-old ownership limits.

This is why this Supreme Court ruling is such welcome relief. The FCC’s much-needed modernized broadcast ownership rules will, at long last, be allowed to take effect. This is particularly important for television broadcasters because they uniquely face overwhelming competition from the tech giants -– Google, Amazon, Facebook, Netflix and Apple -– and the titans of telco -– AT&T, Verizon and T-Mobile-Sprint. To illustrate, in 2018 Google earned $116.3 billion in advertising revenues. For that same time period, the broadcast industry as a whole earned about $20 billion in over-the-air advertising and digital revenues. See, Sen. Maria Cantwell, U.S. Senate Committee on Commerce, Science, and Transportation, Local Journalism: America’s Most Trusted News Sources Threatened (Oct. 2020) (“the ad revenues that Google is projected to earn this year will exceed the combined ad revenues of all TV and radio stations in the country”). 

Freed from the Third Circuit’s iron grip, the broadcast industry will hopefully –- if it’s not too late -– be able to better compete in the fierce media marketplace and avoid going the way of the newspaper industry.

C-SPAN will air/stream the Supreme Court oral argument Tuesday (Jan. 19) in FCC v. Prometheus.

That is the FCC's defense of its 2017 broadcast ownership dereg decision.

The argument is scheduled for 10 a.m. 

Also Read: FCC Deregulates Broadcast Ownership

In November 2017, a politically divided FCC voted to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC did not call it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.

Also Read: Supremes to Hear Broadcast Dereg Case

The Third Circuit Court of Appeals said the FCC had not sufficiently gauged the impact of those deregulatory changes on minority and female ownership, as the court had told the FCC it must do the last time the circuit weighed in on the FCC's long-standing attempts to loosen regs on broadcasters, and blocked all that deregulation.

Had oral argument been scheduled for after the inauguration of Democrat Joe Biden, it is unlikely the government would have pressed its appeal.

Broadcasters are arguing that the FCC does not need to have statistics on how repealing or modifying its broadcast ownership rules impact media diversity to make those changes.

The National Association of Broadcasters is arguing that point in a brief to the Supreme Court filed Thursday (Aug. 20) in support of its petition that the court hear its appeal of a lower court decision.

NAB said Congress was clear that competition analysis was what was statutorily required and that the court had inserted its own diversity concerns, despite the fact that "the Third Circuit has never identified any statute or regulation requiring the FCC to consider ownership diversity" in reviewing its regs.

Broadcasters are appealing a Third Circuit Court of Appeals stay of FCC media ownership deregulation. That was the FCC's November 2017 decision to eliminate the newspaper-broadcast and the radio-TV cross-ownership rules; allow dual station ownership in markets with fewer than eight independent voices after the duopoly, creating an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC is not calling it a waiver); eliminate attribution of joint sales agreements as ownership; and create an incubator program.

The court said the FCC had not sufficiently gauged the impact of those changes on minority and female ownership, as the court had told the FCC it must do the last time the circuit weighed in on the FCC's long-standing attempts to loosen regs on broadcasters.

NAB said the key question before the Supreme Court is "[w]hether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition without statistical evidence about the prospective effect of its rule changes on minority and female ownership." NAB said the answer is "yes."

NAB said that the court had thrown out most of the FCC's broadcast deregulation decision to "modify archaic rules solely because it concluded that the FCC’s analysis of ownership diversity was insufficiently robust. That same panel has for nearly two decades repeatedly elevated its own policy concerns over the statutory text."

FCC chairman Ajit Pai has also lodged that complaint.

Unless the Supreme Court takes the appeal, NAB said, "obsolete rules that no one contends are actually necessary in the public interest as the result of competition will remain, harming broadcasters, newspapers, and the public."

WASHINGTON — Federal Communications Commission chairman Ajit Pai’s ongoing efforts to deregulate broadcasting in the face of increased competition were dealt a big blow last week, a hit that puts the brakes on that effort and could call into question the just-approved Nexstar Media Group-Tribune Broadcasting merger.

The 3rd U.S. Circuit Court of Appeals on Sept. 23 vacated the Pai-led deregulatory 2017 order that allowed combinations of TV stations, radio stations and newspapers in a singep market; for dual station ownership in smaller markets; and for the same company to own two of the top four-rated stations in a market.

The court invalidated those changes because it said the FCC had not sufficiently explored how deregulation would impact station ownership by women and minority group members, something the court had instructed the agency to do the last time it ruled the FCC had not sufficiently justified deregulation.

Cable operators weren’t joining the parade of consolidation critics crowing over the decision, but they have had issues with the power they say FCC deregulation has given broadcasters in retransmission-consent negotiations, so they weren’t complaining either.

JSAs in Jeopardy

One broadcast deregulation advocate pronounced the ruling as the death knell for the various sharing arrangements — joint sales agreements ( JSAs) and shared services agreements (SSAs) — that cable operators have argued allow TV stations to skirt ownership rules and gain untoward leverage in negotiations. They also said it would end any thoughts Pai might have for loosening the 39% national ownership cap.

It could also, conceivably, throw a monkey wrench into Nexstar’s purchase of Tribune stations. While that deal has closed, it included some elements that were only allowable under the looser rules that have now been invalidated. A 30-day window to file petitions to reconsider the deal remains open.

Common Cause, one of the parties to the legal challenge, told Multichannel News it was examining “all the implications it opens up for potential action on past mergers,” which could include Nexstar-Tribune.

A spokesperson for Free Press — one of the Nexstar-Tribune’s biggest critics, though not a party to the media ownership suit — said it had no plans to challenge the deal.

The court instructed the FCC to do some real diversity due diligence before trying to deregulate broadcasting again, but Pai instead vowed to appeal and blamed the court for refusing to let the FCC modernize the regulations to meet the marketplace.

“It’s become quite clear that there is no evidence or reasoning—newspapers going out of business, broadcast radio struggling, broadcast TV facing stiffer competition than ever—that will persuade them to change their minds,” Pai said.

WASHINGTON — Broadcasters and cable operators are fighting a two-front war over broadcast ownership regulations, in Congress and at the FCC, with the ever-present third front — the courts — also in play.

Both sides are storming Capitol Hill over the renewal of the STELAR satellite license that is historically a venue for some changes to the negotiations between cable operators and broadcasters over carriage. But the big guns are also out at the Federal Communications Commission, which was hit with a barrage of reply comments on its latest, congressionally mandated, quadrennial review of broadcast-ownership regulations.

Those are the same rules that a federal appeals court last week considered during oral arguments in a legal challenge to the last quadrennial review, so the courts could potentially open up a third front depending on how that matter is decided later this year.

On the FCC front, broadcasters want the agency to eliminate the top-four local ownership rules it already loosened. The commission back in fall 2017 started allowing broadcasters to own two of the four top-rated stations in a market on a case-by-case basis. It said it would still presume such combos should not be allowed, but was open to being convinced. Nexstar Media Group is trying to make such a case in Indianapolis with a deal to buy the Tribune Media stations, where it wants the FCC to let it keep Tribune’s current pair of two of the top four stations.

NAB: Ban Is Outdated

The National Association of Broadcasters is telling the FCC that given “the scale and concentration of TV stations’ competitors,” preserving the ban on owning two of the four top-rated stations makes no economic sense. It attributes cable’s opposition to that and other broadcast deregulation as pay TV’s self-serving calls to restrict a competitor.

Unsurprisingly, top station owner Nexstar was one of the prohibition’s most outspoken critics. It called it an “an unnecessary and arbitrary burden on broadcasters’ ability to obtain operating efficiencies that allow them to deliver more comprehensive news and information programming and the most-desired entertainment programming in an era of fierce competition for viewers, advertising dollars and high-quality content.”

In its filing at the FCC, NCTA-The Internet & Television Association conceded that marketplace has changed — a concession it would be hard not to make — but was still giving no quarter when it came to any more loosening of those reins on broadcast power, saying eliminating the prohibition would give broadcasters too much leverage in retrans.

NCTA signaled it was only looking out for broadcasters’ audience. It said the prohibition “remains vital to protecting consumers and promoting competition among broadcast stations in local television markets.”

Protecting consumers means preventing broadcasters from inordinately raising the retrans fees cable operators then pass on to customers, which in turn raises the blood pressure of legislators who frequently hammer those operators over their prices in Hill hearings — an issue that plays well back home.

Another key bone of contention the FCC will have to resolve is whether to continue to allow broadcasters to program their subchannels as network affiliates while not counting those streams towards the local ownership limit. Current rules hold that a single broadcaster cannot own two of the four top-rated stations in a given market, almost always network affiliates, but those limits don’t apply when one station is full power and the other a digital subchannel or low-power TV station programmed as a network affiliate.

Cable operators say that is a “loophole” that needs fixing ASAP.

“Allowing a single owner to control the broadcast of two of those networks creates the same concentration of market power, and the same leverage in retransmission-consent negotiations, regardless of whether the combination arises from the ownership of two full power stations, the ownership of an LPTV station, or the use of a multicast stream,” NCTA said. As with an affiliation swap — the prohibition does not allow such swaps to result in delivering two of the four top-rated broadcast signals — acquiring a second network affiliation using LPTV stations and multicast streams “result[s] in identical harm the top-four prohibition is meant to prevent.”

The NAB’s high dudgeon was in high gear over that suggestion. “Any effort by the commission to attribute ownership of these services based solely on their programming content would be unjustified and constitute an affront to the First Amendment rights of broadcasters,” NAB said.

Tegna Wants OTT Retrans

Station group Tegna went even further, saying not only should the FCC not impose new limits on broadcasters retrans powers — suggesting there is nothing harmful, per se, in broadcast fee increases — but the FCC should start applying retrans to OTT.

“If anything, the commission should bolster the retransmission-consent system by revisiting the question of whether virtual MVPDs such as Sling and YouTube TV should be subject to the same retransmission consent rules as traditional MVPDs,” Tegna said, suggesting the answer should be “yes.”

But the Justice Department may have handed cable operators some new fodder. That came in the form of last week’s follow-on settlement with CBS, Fox and other group broadcasters for allegedly sharing information on spot advertising. Antitrust chief Makan Delrahim said that unlawful information sharing had reduced competition for spot ads “and thereby harmed businesses that rely on competitive rates to best serve their customers.”

The FCC is under no strict timetable for completing its review. Chairman Ajit Pai is in the “marketplace has changed dramatically” camp, but his major focus has been on nonbroadcast items.

WASHINGTON — Cable and satellite operators are pushing back on the Federal Communications Commission’s loosening of local broadcast ownership rules.

The pushback came in comments by the American Television Alliance on the regulator’s quadrennial regulatory review.

Under Republican chairman Ajit Pai, the FCC has loosened the restriction on owning two of the top four rated stations in a market, continuing to presume them to be off limits but giving a chance for broadcasters to argue for them on a case-by-case basis. Sinclair Broadcast Group tried to do that in its failed merger with Tribune Media, and Nexstar Media Group is trying to do it in its effort to buy the Tribune stations.

ATVA, whose members include ACA Connects, Dish, and DirecTV parent AT&T, has said that not only should the FCC not further loosen that top-four ownership rule, as some have called for, but it must also close what ATVA says are a couple of loopholes: owning network-affiliated low-power stations that don’t count against local limits and programming digital subchannels as affiliates.

ATVA said the “loopholes” lead to higher retransmission-consent prices, which is the chief beef cable and satellite operators have with allowing broadcast groups to get larger and more powerful.

Broadcasters say the FCC should simply drop the top-four station prohibition altogether as a “per se” ban that is unjustified, a pitch the National Association of Broadcasters has made to the FCC.

The deregulatory FCC is unlikely to reinstate the top-four prohibition or start counting subchannels or low-power TV stations (LPTVs) toward ownership limits. But that isn’t stopping ATVA from spotlighting the issues, or tying them to consumer pricing.

The FCC has to weigh the financial burden of increased consumer prices when deciding what to do about the top-four rule, increased prices that “rank among the principal public-interest harms the Commission seeks to avoid,” they said.

Pai has yet to signal when the FCC will complete its latest quadrennial review.