Times are hard on broadcasters. Mounting competition from the tech giants, non-stop political turmoil, civil unrest, elections, market uncertainty, and of course the COVID-19 pandemic have all swallowed 2020 whole – and we still have two months left! Once the election is over – and only the Good Lord knows when that may be since many experts are telling us there will be no final results on the night of Nov. 3 – the television industry will be anxious to see what direction the FCC will take. 

The Trump Administration and the FCC under Chairman Ajit Pai have generally followed a deregulatory trend. The repeal of net neutrality, loosening broadcast ownership restrictions under the Quadrennial Review, and removing antiquated regulations – like the main studio and minimum staffing mandates – are just a few examples.

Under a Biden Administration it seems clear net neutrality will again be pursued. Hard to imagine the benefits of having the FCC regulate internet services as a 1930s-style public utility under Title II regulations. A sure innovation killer.

A Biden Administration may also undermine the FCC’s appeal of the 3rd Circuit’s Prometheus Radio Project decision voiding the 2016 Quadrennial Review, which eliminated the newspaper/broadcast and television/radio cross-ownership rules and removed the eight voices test from the local television ownership rule. This appeal is particularly important for television broadcasters because they uniquely face overwhelming competition from the tech giants – Google, Amazon, Facebook, and Apple – and the titans of telco – AT&T, Verizon, and Sprint/T-Mobile. Unless they are freed from the FCC’s Depression Era limits, the industry will surely go the way of the newspaper industry and extinction.

The television industry also needs to see the deregulation of joint sales agreements (JSAs) and shared service agreements (SSAs). In November 2017, the FCC under Pai repealed the attribution rules for TV JSAs, removing the Wheeler Era regulation that attributed such agreements as “ownership” interests under the duopoly limits. That decision was overturned in 2019 by the 3rd Circuit Court of Appeals (along with other changes to the ownership rules noted above) and remanded the proceeding to the FCC for further consideration.

As one of the very few African-American television operators, I know firsthand that the biggest obstacle to increasing diversity and minority ownership is access to financing and solid mentoring. Repeal of the JSA and SSA limits will reduce that obstacle, allow new entrants to work with experienced broadcasters in the same market, and expand ownership opportunities. The FCC for almost 50 years has given lip service to expanding diversity and minority opportunities, so I hope the FCC turns in that direction and allows the return of JSAs and SSAs. 

Alas, we will have to wait and see what the Nov. 3 election brings us.

Armstrong Williams is manager and sole owner of Howard Stirk Holdings I & II Broadcast Television Stations and the 2016 Multicultural Media Broadcast Owner of the year.

The National Association of Broadcasters is taking the FCC to court once again over its quadrennial media ownership regulatory review, the association has confirmed. Look for the filing within a week.

“Broadcasters want to compete in the digital age and continue being a trusted source for local news and information, but FCC rules need to reflect 2016 and not the 1960s," said NAB spokesman Dennis Wharton. "It defies belief that the FCC allows AT&T/DirecTV and Charter/Time Warner mergers while barring two Topeka TV stations from combining, or a radio station from buying a newspaper.”

NAB signaled even before FCC Chairman Tom Wheeler circulated the proposal that it was likely headed to court, saying that retaining the newspaper-crossownership ban, as the FCC did yet again, was arbitrary and capricious violation of the Administrative Procedures Act. It has since gotten direction from the board to file suit.

It has long said that it makes no sense to limit local TV station ownership in an era with video competition from cable and satellite and now the Web that fills those markets with competition voices.

NAB is filing its appeal in the U.S. Court of Appeals for the D.C. Circuit, the principal court of jurisdiction for FCC decisions. Prometheus Radio, which is also challenging the rules, filed in the Third Circuit.

The FCC released the final text of its order Aug. 25, in which it did not lift or loosen local ownership regs or scrap the crossownership ban, and reinstated the joint sales agreement-tightening it instituted in March 2014.

The NAB challenge--it said immediately following the decision that that decision was inexplicable--has to be filed by next Monday, according to an attorney familiar with the process, so it can meet the deadline for deciding which court will hear the appeal. The Third Circuit is the most likely since it remanded the JSA decision and was the court to originally stay the 2003 media ownership rule change that began the process.

The Third Circuit vacated the FCC's JSA order back in May, saying the FCC improperly enacted the rule, having done so before completing the quadrennial review to gauge the impact of its regs media ownership regs on the industry.

The court said nothing in its decision prevented the FCC from reinstating the JSA change in its quadrennial review if it found it to be in the public interest. The FCC did just that in its completed quadrennial, which a divided FCC voted to approve July 12.

Related: FCC Republicans Slam Quadrennial Order

The U.S. Court of Appeals for the Third Circuit has thrown out the FCC's decision to make some joint sales agreements attributable as ownership interests, saying the FCC "improperly" enacted the rule.

The court also chastised the FCC for not completing its quadrennial review of media ownership rules and concluded the FCC had "unreasonably delayed" action on defining an "eligible entity," which is key to its promoting of minority and female ownership. The court ordered the FCC and the parties pushing for a definition to engage in mediation and, within 60 days, come up with a timetable for final agency action, or the court would impose one.

RELATED:D.C. Weighs In on FCC JSA Smackdown

Failing to complete the quadrennial review proved to be a key to the court's decision to vacate the JSA rule tightening.

"We agree with Deregulatory Petitioners that the Commission violated § 202(h) by expanding the reach of the  ownership rules without first justifying their preexisting scope through a Quadrennial Review," the court said. 

"We are not dealing with a Quadrennial Review that is merely flawed, but rather with one that has never been completed," wrote judge Thomas Ambro for the majority. "Before defining ownership more restrictively, as it does when it enacts an  attribution rule, the Commission must at a bare minimum show that it is even in the public interest to regulate ownership in the first instance."

The decision was 3-0, with Judge Julio M. Fuentes supporting and Judge Anthony Scirica concurring in part and dissenting in part. The court did not throw out all the meida rules, as broadcasters had asked citing the FCC delay in reviewing them.

The three-judge panel of the court was clearly peeved at the FCC's contribution to the extended timeline -- 12 years -- of court review of its ownership rules.

"Although courts owe deference to agencies, we also recognize that, '[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough,' " said the court.  

The court left open the possibility the FCC could restore the JSA rule.

It made it clear that the reason the rule was vacated was that it had not provided reasoned analysis [the 202(h) reference above] -- again, the failure to complete a quadrennial review first.

"On remand, if the Commission is able to justify (by finding they are in the public interest) the existing ownership rules to which television JSA attribution applies -- or, in the alternative, if it replaces the current rules with new ones it determines to be in the public interest -- nothing in our opinion would prevent it from readopting the JSA rule at that time," the panel said. "The rule, if readopted, might be challenged on grounds that extend beyond what we decide today, and we offer no opinion on the merits of any such attacks. We merely note that our decision to vacate is unrelated to the question of whether television JSAs should be attributable interests."

At a press conference Wednesday (May 25) following the decision, Wheeler signaled that the JSA rule could be coming back once the FCC had weighed in on the underlying media ownership rules via its quadrennial review.

At stake in the case was how free broadcasters can be in the digital age to compete with multibillion-dollar distributors of pay programming over land (cable), over the air (satellite) and over-the-top.

Congress grandfathered existing JSAs via a rider on the budget bill that passed last December. Now both old and new TV JSAs will be allowed without triggering ownership issues.

In addition to vacating the JSA decision, the court directed the FCC to act promptly to come up with a "designated entity" definition.

Judge Scirica supported the action on eligible entities and the JSA rule, but dissented on the quadrennial part. He said the court should have set a firm timeline for action: it only 'reminded' the FCC of its obligation. He recognized Wheeler had signaled a draft would be circulated in June, but said "a draft proposal by one Commissioner is no guarantee that a final order is forthcoming. At oral argument, the Commission would not agree to any firm deadline for action." Scirica would have issued a write of mandamus (court order), requiring a final decision on a media ownership review within six months.

"I am pleased that the U.S. Court of Appeals for the Third Circuit has struck down the FCC’s unlawful attempt to sharply restrict television stations’ ability to enter into joint sales agreements," said FCC commissioner Ajit Pai, who opposed the move. "When the Commission adopted this arbitrary rule two years ago, I warned that any attempt to change our treatment of joint sales agreements without also completing our statutorily mandated review of the local television ownership rule would violate the law."

“NAB could not be more pleased with the Third Circuit decision. At long last, this opinion directs the FCC to do its job and adopt broadcast ownership rules that reflect the modern world," said National Association of Broadcasters spokesman Dennis Wharton. NAB was among those challenging the FCC's JSA decision.

FCC chairman Tom Wheeler has said he will circulate a quadrennial review item next month.

“We’re particularly delighted the court highlights the irrationality of a rule that bars broadcast/newspaper combinations in the same market. This rule needs to be ended immediately," said Wharton. “And finally, we’re pleased the court strikes down the FCC’s punitive joint sales agreement order. JSAs are clearly in the public interest – as Congress has decided – and allow free and local broadcasters a chance to compete against national pay TV conglomerates.”

Cheryl Leanza, policy advisor for UCC OC Inc., which has pressed the FCC on promoting diversity, said it was ready to help the FCC come up with the 'designated entity' definition.

"Since 2004 the U.S. Court of Appeals for the Third Circuit has been reviewing the FCC’s media ownership rules—pressing again and again for FCC action to accompany the FCC’s words in support of increasing media ownership diversity," said Leanza. "The Third Circuit has confirmed that the time for delay is over.  The FCC has promised studies on minority and female ownership for more than two decades and today the court has concluded, if the FCC 'needs more data' to find a definition that will improve minority ownership, 'it must get it.' The United Church of Christ’s media justice ministry, OC Inc., looks forward to sitting down with the FCC to develop a timeline within the court-ordered 60-day timeframe to make sure that the long-awaited studies are undertaken."

"The Court appropriately ruled on JSAs," said Adonis Hoffman, chairman of Business in the Public Interest and former chief of staff to FCC Commissioner Mignon Clyburn. "From the beginning, there were questions about the timing, the propriety and the constitutionality of the ruling, and many of those questions did not see the light of day.  Additionally, we must question the wisdom of a policy that results in fewer, not more, diverse owners of broadcast properties, or that makes it extremely more difficult to become owners."

House Communications Subcommittee chairman Greg Walden (R-Ore.) made it clear what he thought of the FCC's recent activity, and inactivity, on media ownership rules. "Pretending laws designed for an era before smartphones and the Inernet will get the job done is an effective death sentence for many local media outlets," he said.

That came in opening statements on a hearing Wednesday (June 11) on media ownership rules, part of the parent House Energy & Commerce Committee's ongoing review of communications regs, as well as a response to some current events like the JSA ruling and the decision to role the 2010 and 2014 quadrennial reviews into one targeted for mid-year 2016.

The inactivity was the FCC's split decision not to loosening the newspaper-broadcast crossownership rules--it is seeking more input--and not completing the 2010 quadrennial media ownership rule review mandated by Congress--it is seeking more input. The activity is recent decisions to make most joint sales agreements attributable under ownership rules and Media Bureau guidance issue in March that the FCC is taking a dim view of sharing arrangements that appear to be attempts to circumvent duopoly rules.

Walden was pushing for regulatory relief. "I fear that local broadcast and newspaper companies will continue to struggle against unregulated competitors whose business models are not hamstrung by decades-old regulatory assumptions," he said.

He said everyone was committed to the core values promoting localism, diversity and competition, but his view was that was best served by not hampering broadcasters ability to compete.

Rep. Anna Eshoo (D-Calif.), ranking member of the subcommittee agreed with those core values, but didn't see how allowing more consolidation was the answer. "Our goal should be to promote localism, competition and encourage diversity, not to roll back what few protections we have left," she said.

Eshoo also took aim at JSAss. "While some have criticized the FCC for cracking down on 'sidecar' deals before concluding its 2010 review"--Walden among them--" we firmly believe that the agency has an obligation to enforce existing rules on the books, regardless of the outcome of its review."

Rep. Henry Waxman (D-Calif.) made a brief appearance, but long enough to say he thought the newspaper-broadcast crossownership rules served all those core values and should be preserved.

The FCC took plenty of heat from Republicans for not having completed the quadrennial review. Bill Lake, FCC Media Bureau chief, told the legislators it was not for lack of trying, and that Chairman Tom wheeler was committed to completing the review by mid-2016. But even th FCC's target June 30 date is only the date on which Lake said the FCC would "present recommendations to other commissioners."

NAB's Jane Mago argued that the FCC was making decisions based on speculation rather than real evidence, while Lake suggested the FCC was basing decisions on the market as it existed today. In the case of JSA's, he said, that was a market where the combination of joint sales agreements with "entangling" financial arrangements had been used to circumvent local ownership rules, something the FCC was looking to prevent with the new JSA rules, which he pointed out also had a waiver provision for the examples of beneficial JSAs--being offered up by Mago--and for failing stations--a concern of one Republican lawmaker.

Mago argued that the marketplace had been revolutionized by competition, digital and otherwise, while time had seemed to stand still at the FCC. She said broadcasters need a more level playing field, including rules that keep pace with market changes or are eliminated.

Eshoo asked what good consolidation had done for the public, rather than the financial markets. Mago said it was a way to preserve a vibrant and competitive broadcast marketplace. She said broadcasting was not in a bubble, and suggested the FCC needed to get out of its bubble and allow broadcasters to compete on a more level playing field.

Rep. Adam Kinzinger (R-Ill.), no fan of the FCC's ownership regs, pushed Lake on the FCC's promise of expedited review of waivers of its new JSA limits. The FCC has said that it would act on such waivers within 90 days, unless circumstances required additional review. Kinzinger asked just what circumstances those might be. Lake said it could be the need for more info, but said if that were the case the parties would be notified, and said he did not anticipate those happening very often. He said the goal was to meet that 90-day deadline.

Walden suggested in his opening statement that he recognized the FCC rules had been adopted with good intentions, but said he feared that laws "intended to ensconce our love of local media are loving them to death."

And what would a death reference be without an undead reference.

Witness Bernard Lunzer of Guild-CWA, definitely no fan of consolidation, said that it led to layoffs and outlets programming remotely. "We get to a situation where some broadcast stations are essentially zombies," he said, "places where broadcasting continues but there are few if any employees involved."