The FCC's new/revised strategic plan promotes universal broadband and digital equity, communications priorities of the Biden Administration. The plan looks at equity in particular by examining how FCC policies in the past might have created "historical, systemic, and structural barriers that perpetuate disadvantaged or underserved individuals and communities."

When the first FCC licenses were handed out for free, minorities were not at the table, something Rainbow/PUSH founder Jesse Jackson has pointed out excluded them from the media's power to help set the national agenda, not to mention its power to reward original owners in the secondary market for TV and radio stations.

The 2022-2026 plan, released Tuesday (March 29), prioritizes a "100 percent" broadband policy, which it says means bringing "affordable, reliable, high-speed broadband to 100 percent of the country."

That is a definite signal that when the FCC releases its congressionally mandated report on whether advanced communications is being deployed to all Americans in a timely fashion, the answer will be no until there is universal broadband. Democrats have traditionally treated the "all Americans" language as meaning the rollout is not timely while anyone lacks service, a lack that triggers the FCC's ability to regulate to close that gap.

The President has made clear that his view of universal broadband specifically includes price and quality in the definition and now it is part of the FCC's strategic plan.

And while the former strategic plan created under then chairman Ajit Pai prioritized removing barriers to entry for businesses, that has been supplanted in the new plan by promoting "diversity, equity, inclusion and accessibility."

Not only will the FCC look to identify past rules, policies and programs that may have inhibited diversity, inclusion, equity and accessibility, the commission will take affirmative steps to redress that grievance. "The FCC will pursue focused action and investments to eliminate historical, systemic, and structural barriers that perpetuate disadvantaged or underserved individuals and communities," the plan says. "In so doing, the FCC will work to ensure equitable and inclusive access and facilitate the ability of underserved individuals and communities to leverage and benefit from the wide range of opportunities made possible by digital technologies, media, communication services, and next-generation networks."

Other priorities include empowering consumers, enhancing public safety, and advancing U.S. global competitiveness. ■

Discovery Inc. said it has formally notified Poland’s government that it will take legal action to block a draft bill that would bar foreign ownership of media in that country, claiming the legislation violates the bilateral investment treaty between the U.S. and the Republic of Poland and is directly tied to its control of independent news channel TVN, which has been critical of Polish President Andrzej Duda’s administration. 

The draft legislation is just the latest in what the programmer claims is a history of attempts by the government to squelch TVN. Discovery, which in May said it would combine with AT&T’s WarnerMedia unit in a deal valued at $43 billion, said it applied for renewal of TVN’s broadcast license 18 months ago but has still not received approval. That broadcast license is set to expire on Sept. 26, according to reports.

Wednesday (Aug. 11), the lower house of Poland's parliament voted to pass the bill by a slim margin (226-216, with 10 abstentions). The draft legislation still must go before the country’s Senate, where the opposition holds a slim majority in the upper house and could make changes, but the lower house could pass the bill as is, according to the Associated Press. Once it passes the Senate, the bill would go before Duda for his signature. 

Although the draft bill would prevent any non-European country from owning media in Poland and was being promoted as a national security measure, it is largely believed to be targeted at Discovery, which in TVN has the largest independent foreign investment in media in Poland. TVN has been highly critical of the conservative Polish government and has uncovered wrongdoing by officials. 

“The legislation is the latest assault on independent media and freedom of the press, and takes direct aim at Discovery’s TVN, the country’s leading independent broadcasting group and news provider, as well as one of the largest U.S. investments in Poland,” Discovery said in a press release. “Over a number of years, the current Polish government has targeted TVN in an arbitrary and discriminatory manner as part of a broader crackdown on independent media and in direct violation of legal protections around freedom of expression.” 

According to the AP, some government critics fear the law is another step toward the restrictive policies of its European neighbor, Hungary, where Prime Minister Viktor Orban, who gained a fan in Fox News pundit Tucker Carlson earlier this month, has cracked down on that country’s media outlets, as well as silencing opposition to his right-wing policies by Hungary’s universities and judiciary. 

Discovery acquired the TVN interest through its purchase of Scripps Interactive Networks in 2018. Scripps paid about $2 billion for TVN in 2015. 

“We are deeply committed to safeguarding our investment in Poland and its people, defending the public’s interest in independent media and the rights of freedom of expression,” Discovery International president and CEO JB Perrette said in a press release. “Discovery, as a protected investor in Poland, is afforded important rights and freedoms under the US-Polish Treaty. We do believe this legislation will have a chilling effect on U.S. and European investment into the Polish economy, and we will aggressively defend our rights.”

The U.S. government also has expressed its displeasure with the legislation. In a statement Wednesday, U.S. Secretary of State Antony Blinken said he was “deeply troubled” by the bill.

“Poland has worked for decades to foster a vibrant and free media,” Blinken continued. “This draft legislation would significantly weaken the media environment the Polish people have worked so long to build.”  

In advance of the Supreme Court's Jan. 19 oral argument on the FCC's 2017 broadcast ownership deregulation decision, opponents of that FCC decision have briefed the court on their position that a federal appeals court was correct in vacating and remanding the decision back to the FCC with the instruction to "do its homework."

Also Read: FCC Deregulates Broadcast Ownership

Broadcasters—and the FCC—are appealing that "do your homework" Third Circuit Court of Appeals stay of FCC media ownership deregulation.

The Prometheus Radio Project, Common Cause, and a host of others filed a joint brief Wednesday (Dec. 16) explaining why the appeals court stay was justified and why the FCC should have to show the court how the FCC's deregulatory moves did not adversely affect diversity in broadcasting.

They said the FCC, if it is going to profess a commitment to diversity, which it has, must "reasonably" implement that commitment--and explain to the court how its dereg moves furthers that, something they say the FCC has not done, but could and should.

"The Commission [then chaired by Democrat Tom Wheeler] first concluded that largely retaining local rules was necessary for the public interest," the parties briefed the High Court. "One year later, upon reconsideration of the same record after a change in Commissioners [and a new Republican chairman], the Commission reversed course," they said. "The Commission did not purport to base that reversal on any change in ownership-diversity policy. Instead, the new Commission majority justified its action based on an arbitrary analysis of the same facts: It asserted that wholesale deregulation would not harm this public-interest goal—even though any reasonable analysis of the record showed that past deregulation caused harm."

They argue the FCC did not provide a "reasoned analysis" of that issue, which led the Third Circuit rightly to vacate and remand the order, which they pointed out to the court, "leaves the agency free to reach the same result on remand if it provides a reasoned basis for its assessment."

In November 2017, a Republican FCC majority, assailed by Hill Democrats who tried to block the vote and FCC Dems who strongly dissented, voted to eliminate some decades-old broadcast regulations and tweaked others in what broadcasters have argued was a necessary move to allow them to remain relevant in a sea of less-regulated competitors.

The decision eliminated the newspaper-broadcast and the radio-TV cross-ownership rules; allowed dual station ownership in markets with fewer than eight independent voices after the duopoly, created 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); and eliminated attribution of joint sales agreements as ownership; and create an incubator program.

Also Read: NAB Says FCC Doesn't Need Diversity Impact Stats to Deregulate

The Third Circuit remanded that order, saying the FCC had not sufficiently gauged its impact on diversity, as the same court had said was required of the FCC when it proposed to deregulate broadcast media.

That led to the broadcaster/FCC appeal, which the court agreed to hear.

The National Association of Broadcasters has told the Supreme Court that the Third Circuit has been trying for most of two decades to regulate media ownership when the decision whether to regulate it or deregulate it is the FCC's job. It said the Supreme Court should restore the FCC's latest effort to deregulate broadcast ownership.

That came in a brief filed with the High Court this week asking the Supremes to reinstate the FCC's media ownership deregulation decision, which the Third Circuit invalidated.

Related: Supremes to Hear Broadcast Dereg Case

Back in April, broadcasters and newspaper publishers joined with the FCC to petition the Supreme Court to review the Third Circuit decision vacating most of the FCC's 2017 effort under chairman Ajit Pai to deregulate broadcast ownership, including by eliminating the newspaper-broadcast cross-ownership rules.

That decision came in response to the commission's quadrennial review of its ownership rules to determine if they were still in the public interest as well as to an earlier Third Circuit remand of a previous deregulatory effort.

NAB said the lower court had overstepped its authority. The court threw out most of the media ownership dereg because it said the FCC had not taken into account its impact on media diversity.

Echoing the FCC's petition, media petitioners said that outdated ownership rules remain in force because a divided panel of the court has prevented the FCC from implementing "necessary adjustments to its ownership rules" that the FCC concluded would serve the public interest.

The FCC and Third Circuit have been sparring over successive attempts to deregulate broadcasting for most of two decades. This is the first time the Supremes have gotten involved.

In this week's brief, NAB said: "The Third Circuit’s decision was not based on the rules’ perceived merits or any defect in the competition analysis Congress directed the FCC to perform; in fact, no party disputed any aspect of that analysis or the FCC’s overarching conclusion that the rules no longer served the public interest in light of competition. Instead, the Third Circuit’s decision was based solely on a textual policy concerns about the gender and racial makeup of broadcast station owners." 

The Supreme Court's decision to hear the FCC/broadcaster appeal of the Third Circuit's most recent smackdown of the FCC's broadcast dereg efforts drew a crowd Friday (Oct. 2).

That may be because the FCC for almost two decades has been responding to remands from the Circuit as the commission under Republican chairmen tried to eliminate the newspaper-broadcast crossownership rule and other local station ownership restrictions but this is the first time the Supremes will get involved.

“I’m elated that the U.S. Supreme Court has granted cert in FCC v. Prometheus Radio Project and will finally review the FCC’s broken and outdated media ownership rules," said FCC Commissioner Michael O'Rielly, who has been instrumental in some of the broadcast deregulation that has been achieved, particularly when it coms to KidVid.

Related: Third Circuit Won't Hear Appeal of Dereg Smackdown

"Our existing 1970’s-era regulations don’t come close to matching up with today’s vastly competitive media marketplace or the law and must be jettisoned," said O'Rielly, whose vote was key in FCC approval of the media ownership dereg decision the Supremes will review. "Failure to do so further penalizes U.S. broadcasters and the American public," said O'Rielly. "While I hope the court ultimately agrees with my position, it is most important to receive a definitive outcome so all parties can move forward. The U.S. Court of Appeals for the Third Circuit has bungled this matter long enough—to the detriment of everyone.” 

"Of course, we are disappointed at this additional delay," said Benton Institute Senior Counselor Andrew Jay Schwartzman. "But we are confident the court will see that the FCC has failed to obey its mandate to promote diversity in media voices."

“The Third Circuit rejected the FCC’s media ownership rule changes time and time again because each time the FCC ignored the Third Circuit’s insistence to provide evidence supporting those changes," said Michael Copps, special adviser to Common Cause and a former FCC commissioner and chairman who opposed broadcast deregulation. "The FCC has a statutory mandate to examine the impact that changing its media ownership rules would have on ownership diversity. But as the Third Circuit most recently found, the FCC used flawed data and woefully insubstantial analysis that failed to consider how changing its rules would impact ownership diversity. We know that the number of broadcast stations women and people of color own is abysmally low as media conglomerates continue to consolidate. Our democracy suffers when just a few entities own the majority of our media, and the FCC’s media ownership rules are intended to prevent that from happening."

"The Court's decision to hear the FCC's media ownership rules is long overdue," said Adonis Hoffman, CEO of The Advisory Council and a former top FCC staffer. "I hope the argument for the relaxation of restrictions will carry the day. Broadcasters deserve the opportunity to develop the scale to compete with Big Tech and private equity media owners who do not have the same limitations on media distribution."

"The FCC's media ownership limits hark back more than 40 years to a reality long ago upended by marketplace forces. Section 202(h) of the 1996 Act requires the Commission every four years to consider whether its rules 'are necessary in the public interest as a result of competition," said Free State Foundation senior fellow Andrew Long. "Over the nearly two decades during which a divided Third Circuit repeatedly has blocked agency efforts to relevel the regulatory playing field, we have witnessed numerous examples of new entrants disrupting the media landscape – and, in the process, chipping away at the relevance of traditional outlets. But in terms of game-changing competitive impact, one need only consider the Internet. Facebook was created in 2004. YouTube in 2005. Twitter in 2006. Over half of U.S. adults today obtain at least some of their news and information from social media, and more identify it as their primary source of political news than either local television stations or newspapers. I therefore welcome the announcement that the Supreme Court will hear the FCC's appeal."

Republican FCC commissioner Michael O'Rielly suggested Friday (Oct. 20) that the Sinclair-Tribune merger doesn't deserve the blame or the credit for the potential -- and long-overdue, he added -- media ownership deregulation that could help Sinclair keep more of Tribune's stations.

FCC chair Ajit Pai has been accused of trying to put a thumb on the scale for Sinclair Broadcast Group, a charge he denies.

In a blog post updating some guidance he supplied last June, O'Rielly addressed the "elephant in the room," though treating the deal as the Voldemort-like merger that must not be named, primarily because commissioners are not supposed to weigh in on items in front of them, which, technically, he didn't.

"There is currently a merger pending before the commission that some argue will benefit from, and is the reason for, any changes to our media ownership rules," O'Rielly wrote. "While I make no comments regarding this, or any, merger application, let me be clear: this transaction is in no way the catalyst for FCC action on these issues.

"First, the statute requires the FCC review its media rules," he continued. "Having failed that, we now have pending petitions before us to reconsider the past shoddy effort. Second, I have been calling for media ownership reform since joining the commission and as a staffer in the U.S. Senate before that. It’s not a new position or reaction to a pending application. Instead, for the first time, we finally have a chairman receptive to these ideas."

The bulk of the blog was devoted to his assertion that it is time for the FCC to complete its long-overdue congressionally-mandated review of media ownership regulations, which means eliminating duopoly restrictions and cross-ownership bans for starters, but only for starters.

O'Rielly doesn't control the FCC's agenda, but he is one of the necessary majority votes for Republicans in any party line vote. He is also a former Hill staffer who says the FCC needs to get moving on the Quadrennial ownership review that has been a decade in the not-yet-making.

Critics of the Sinclair-Tribune merger have branded the FCC's decision to restore the UHF discount a favor for Sinclair. O'Rielly said he supported restoring the discount because its absence hurt broadcasters and because the FCC did not have the authority to eliminate the discount in the first place.

O'Rielly had some suggestions for that overdue media ownership reg review:

Define the broadcast market to include not only newspapers and TV and radio stations, as has traditionally been the definition, but MVPDS and OTT providers and websites and social media and streaming music services and satellite radio.

Once that marketplace is acknowledged, the debate can begin about what regs are needed on broadcasters awash in competition.

Among those it doesn't need, he said are cross-ownership restrictions on newspaper-radio, newspaper-TV, and radio-TV combos. As to the rules that limit multiple ownerships in a market, he said the duopoly rules are so last-century.

"To my friends who think we need regulations to ensure a diversity of viewpoints, here’s a newsflash: You are regulating the wrong market," O'Rielly wriote. "Today, with thousands of new options, how can the FCC justify maintaining this rule in its current form? In many markets, duopolies or even triopolies could strengthen the overall state of broadcasting and allow stations to concentrate more resources on bringing more and higher quality local content to their viewers."

The U.S. Court of Appeals for the D.C. Circuit will hear broadcasters' and others challenge to the FCC's latest variation on media ownership rules, the Quadrennial media ownership review that was released Aug. 25.

The Third Circuit has been the venue for previous media ownership challenges, but D.C. has won the lottery, which is held when an appeal  has been filed in more than one circuit and the cases need to be consolidated into one court.

The U.S. Judicial Panel on Multidistrict Litigation, which held the lottery, informed lawyers Thursday (Nov. 17) that the panel had randomly selected the D.C. circuit.

Broadcasters and newspaper owners had appealed to the D.C. circuit, which is the court with jurisdiction over FCC appeals, while Prometheus, which launched the original appeal of an FCC ownership rule deregulatory remake of over a dozen years ago in the Third Circuit, had filed in the Third, which had issued the most recent remand of an ownership rules decision--the FCC decision to tighten joint sales agreements JSA rules before having finished its congressionally mandated Quadrennial rule review.

Broadcasters are challenging the rule because they say the FCC has insufficiently deregulated the industry, while Prometheus thinks the FCC was overly deregulatory.

Both the National Association of Broadcasters and the News Media Alliance (newspapers) had said they could live with a Third Circuit review, but since Prometheus was sure to refile in the Third, seeking D.C. review meant there would be a lottery and a a 50/50 chance of getting D.C.

The three cases being consolidated are Prometheus vs. FCC. NAB vs. FCC and News Media Alliance vs. FCC.

Today (July 22) marks the three-week anniversary of the Democratic majority's vote to approve the quadrennial broadcast ownership rule review, which does not include the loosening or jettisoning the local ownership regs broadcasters had sought. According to sources, the two Republicans have yet to vote the item. But after those three weeks, the item will be deemed approved Aug. 3, even without those votes, per FCC rules.

That is unless one of the commissioners asks for a one-week extension to Aug. 10 which is automatically granted if asked for, or unless there are changes to the item that necessitate being re-voted. The chairman could grant further extensions as well.

The extension to Aug. 10 is a definite possibility given that there is an FCC meeting to prepare for Aug. 4, and an Aug. 2 deadline for adopting limits on debt collection calls related to robocalling that could take up commissioner and staff time between now and then.

FCC Chairman Tom Wheeler has said the item, even though a majority has voted it, remains open for discussion. That could be another reason to extend the deadline, particularly since both Republican commissioners, Michael O'Rielly and Ajit Pai, have been out this week.

Given that Wheeler said the item could possibly be changed, which would then have to be re-voted by the Democrats, O'Rielly is said to be taking him at his word and working on some changes along the lines of this blog.

Broadcasters have also continued to push for getting rid of the crossownership rules, according to a source, and the National Association of Broadcasters has submitted a study buttressing its case for scrapping the eight-voices test for duopolies.

Broadcasters had been hoping for some relief given what they said was major competition from MVPDs and the web, but the item as initially voted by the Dems retains, with some tweaks, most of the current media ownership restrictions on dual station and newspaper/station ownership and even adds some.

Armed with colorful charts showing the decline of print readership and advertising, the National Association of Broadcasters Thursday (July 7) was trying to convince the FCC to finally scrap the newspaper/broadcast crossownership ban.

That came in an ex parte submission to the commission.

FCC Chairman Tom Wheeler has circulated a quadrennial media ownership review item that concludes the newspaper/crossownership ban is still necessary in the public interest, though he is proposing a failing paper waiver similar to the failing station waiver.

NAB said the rule is outdated and fails to serve the public interest. It calls the decision to retain it arbitrary and capricious, which would make it a violation of the Administrative Procedure Act.

Related: NAB FOIA's FCC Media Ownership Work Product

NAB also said the FCC needed to start counting competition from online news sources. "The FCC Cano longer ignore the Internet’s transformative effects on the media marketplace and on consumers’ access to news and information," it said.

Even as NAB was citing statistics on declining newspaper audience, Pew Research released a report that found only two in 10 people "often" get their news from a print source. It also showed that while TV news remains the top choice for news consumer,  younger demos more often get their news online.

NAB also pitched ditching the radio/TV crossownership rule, which Wheeler also proposed retaining.

It was a busy day on the media ownership front at the FCC Monday (June 28).

At the same time Chairman Tom Wheeler was circulating the FCC's quadrennial review of media ownership rules, which retain and even tighten some rules, he separately circulated an order eliminating the UHF discount, an FCC source confirms, which would be an additional cap on ownership.

Under then-FCC chair Mignon Clyburn, the commission back in 2013 voted to propose eliminating the discount given that in the digital age UHF stations are now more robust than VHF, a reversal of fortune from the analog days. The UHF discount means that TV station owners only have to count one-half of the audience reach of those stations toward the 39% national ownership cap. But no final vote was held on the proposal.

The UHF discount item grandfathers existing ownership groups that would be over the 39% cap once the discount is scrapped. But it does not propose replacing it with a VHF discount, which the FCC had asked for input on. Like the quadrennial review, it must still be voted by the full commission.

With the discount gone, UHFs would have to count all their audience, which will be yet another new limit on ownership and would not allow groups including Ion and Tribune to be sold in their entirety.

The National Association of Broadcasters has argued, and did so again in a letter to the FCC last week, that the FCC should not treat the discount in a vacuum, but in relation to the goals of the national ownership caps