I love freedom of the press. I applaud speaking truth to power. Fueled by these commitments, I am eager to discover solutions for the rightly venerated newspaper industry.

Since the dawn of the digital age, newspapers have been going the way of the dinosaurs. But the march towards extinction can be slowed, if not halted, with newspaper-television common ownership in the same market that augments reporting resources and journalistic talent to advance the public’s right to know.

 A good example is The Washington Post after it swapped WTOP Washington for a Detroit station in 1978, based on ownership limitations. 

Numbers do not lie.

The Post lost a stunning 500,000 subscribers from 2020 to 2023. It lost $77 million last year and is struggling to keep its head above water despite owner Jeff Bezos’ wealth. Advertising dollars have migrated to online platforms featuring more targeted and profitable advertising options.

The Washington Post is not an outlier. Newspaper advertising revenue plunged from 2002 to 2020 a staggering 52%, from $46.2 billion to $22.1 billion, according to the U.S. Census Bureau’s Service Annual Survey, as newspaper readers fled to digital sources for news. In 2023, internet advertising revenues rocketed to $225 billion, a 7.3% annual increase, per the Interactive Advertising Bureau. Social media alone accounted for $64.9 billion in ad revenue, an annual jump of 8.7%.

Further, social media and other digital platforms enjoy an enormous artificial advantage over  newspapers or broadcasters. Under Section 230 of the Communications Decency Act, the former is shielded from liability for defamatory content posted by users. The latter is not. A newspaper or television station or network is legally exposed to actionable defamation for republishing statements made by third parties. Fox News paid Dominion Voting Systems $787 million for publishing false statements that its electronic voting machines counted votes for former President Donald Trump as votes for President Joe Biden in 2020.

Additionally, platforms like Google and AI profit by raiding content created by newspapers, broadcasters, or other content creators to make money. Current copyright protection for the creators is dubious or uncertain. The New York Times has filed a lawsuit against OpenAI and Microsoft. The complaint alleges the companies without permission used Times articles to train their AI models to generate outputs directly derived from copyrighted material. Congress could easily amend the Copyright Act to expressly extend protection against raiding copyrighted material of newspapers or broadcasters by Google, Microsoft or others, but the latter deter legislators with PAC money. 

Relevant content is created by local TV and surviving newspapers, only for our content to be stolen and used to make more money than TV and newspaper outlets.

Several other countries have recognized the unfairness and distortion of the marketplace that ensues by withholding copyright protection from content creators. The European Union passed the Digital Services Act and Digital Markets Act, requiring large online platforms to pay new publishers for using snippets of their content. The compensation is typically negotiated between platforms and publishers to fix a fair price.

Australia was a pioneer with the News Media Bargaining Code in 2021. It mandates negotiations between digital platforms and news media companies to pay for news content. If an impasse is reached, an arbitration process fixes the compensation. Canada’s Online News Act of 2023 is similar. It also requires negotiations between platforms and content creators to fairly compensate the latter for boosting the profits of the former. The Act aims to prevent the extinction of Canadian journalism.

At the dawn of broadcasting, the public benefits of common ownership of newspapers and stations were acknowledged by the Federal Communications Commission. It encouraged newspapers to invest in radio and television to boost these technologies and expand media availability. Newspapers were endowed with the financial resources and journalistic talent needed to operate radio and television stations, which accelerated the latter’s growth and audience reach. 

The Gannett newspaper chain was a prime example. The Washington Post Co. acquired WTOP in 1950. Its TV news operation flourished alongside its newspaper. 

In the digital age, it is fatuous to worry that common television and newspaper ownership in the same market compromises viewpoint or news diversity. The internet has ushered in virtual limitless competitive platforms. Moreover, as renowned First Amendment scholar Alexander Meiklejohn taught, “what is essential is not that everyone shall speak, but that everything worth saying shall be said.” 

Newspapers and broadcasters vet their content for quality. Internet platforms often do not, which is why it overflows with blather and imbecilities.

I am not suggesting that newspapers or broadcasters should be shielded from creative destruction ushered in by digital innovations and free market forces. But competition from the latter strengthened by unfair legal advantages has made encouragement of common ownership of newspapers and broadcast stations instrumental to preventing newspapers from becoming museum pieces like Tyrannosaurus Rex.

I am dedicated to moving heaven and earth to see that such a free press tragedy does not happen.

A quarter century ago, in anticipation of the growing competition TV and radio stations were beginning to face from new digital media, Congress in the Telecommunications Act of 1996 ordered the FCC to conduct regular biennial reviews of its local media ownership rules. It directed the FCC in these reviews to eliminate or relax any rules that were no longer “necessary in the public interest” due to rising competition. In the 25 years since then, the FCC has made several efforts to comply with this congressional mandate, only to have those efforts repeatedly frustrated by two or three judges on a panel of the U.S. Court of Appeals for the Third Circuit, sitting in Philadelphia.

The FCC’s most recent effort to relax these regulatory shackles on the broadcast TV and radio industries was in 2017 when the FCC, under its former chairman Ajit Pai, released a comprehensive set of deregulatory reforms to loosen its local media ownership rules. The FCC concluded that three of those rules no longer served the public interest due to the competition broadcast radio and TV now face from digital media. It therefore repealed two of those rules prohibiting newspaper/broadcast and radio/television cross-ownership. It also modified its Local Television Ownership Rule to eliminate its 8-voices test, which prohibited any broadcaster owning two or more full-power TV stations in the same local market unless there were at least eight independently owned stations in that market. The FCC retained its prohibition on a single company holding the FCC licenses to more than one of the top 4 stations in any DMA, but put in place a procedure by which licensees could seek a waiver of that prohibition where local circumstances warranted it.

On a petition for review filed by the Prometheus Radio Project, an advocate for a group of low power broadcasters, the Third Circuit – as it had on two prior occasions – vacated the FCC’s order, thus reinstating outdated limitations on local media ownership that were first adopted in the 1960s and 1970s, long before the advent of digital media. The court did not dispute the FCC’s conclusion that these rules no longer promoted the public interest in competition, localism, and viewpoint diversity. Instead, the court held that the FCC had not adequately considered the impact the rule changes would have on minority and female ownership.

The FCC and the National Association of Broadcasters both sought Supreme Court review of the Third Circuit’s order. The Supreme Court agreed to hear the case and heard arguments in January. In April, the Court, in a 9-0 decision, reversed the Third Circuit and reinstated the FCC order repealing its two cross-ownership rules and relaxing its Local TV Ownership Rule. See FCC v. Prometheus Radio Project, Slip Op. (2021). In an opinion by Justice Brett Kavanaugh, the Court held that the FCC had given any parties opposing the rule changes ample opportunity to comment on the impact of the proposed changes on minority and female ownership. It held, therefore, that the FCC’s conclusion that its rule changes would have minimal impact on race and gender diversity of ownership was not an abuse of its discretion given the failure of Prometheus Radio and other commenters opposing the rule changes to produce convincing evidence to show that it would. (Slip Op. at 12.)

Now that the Supreme Court has ruled, the question is whether the FCC, under its new leadership, will adhere to the regulatory reforms to its local media ownership rule adopted under the prior administration or will instead take a step backwards by trying to reinstate the more restrictive ownership rules it had left in place during the Obama Administration. As a commissioner, the new FCC acting chairwoman, Jessica Rosenworcel, dissented from the FCC’s 2017 order relaxing those rules.  In her dissent, she wrote in nearly apocalyptic terms about the consequences of the FCC’s action:

Today . . . [i]nstead of engaging in thoughtful reform—which we should do—this agency sets its most basic values on fire. They are gone. As a result of this decision, wherever you live the FCC is giving the green light for a single company to own the newspaper and multiple television and radio stations in your community. I am hard pressed to see any commitment to diversity, localism, or competition in that result.

Given the abundance of competing voices now available to residents in every community nationwide and the Commission’s retention of a presumptive ban on any broadcaster owning more than one of the top four TV stations in a market, Commissioner Rosenworcel’s concerns seem highly exaggerated.

Now that she is the FCC’s Acting Chairwoman, her overwrought concerns about the likely effects of these regulatory reforms are troubling.  

Local newspapers and broadcast TV stations have long been our most important sources of local news in every community in the country. As a majority of the Commissioners recognized in 2017, local newspapers and TV stations now face an existential threat due to the growing competition they face from digital giants, a threat that is even more pressing today than it was three years ago when Commissioner Rosenworcel penned her dissent.  

There is a growing bipartisan recognition that more needs to be done to rein in the power of these digital giants, but there is also concern about the First Amendment implications of doing that through increased regulation. The better remedy, as a majority of the Commission recognized in 2021, is to allow local TV stations and newspapers to combine in order to gain the economies of scale and scope they need to compete more effectively against these digital giants. We have to hope, therefore, that as the acting chairwoman, Commissioner Rosenworcel will reconsider her earlier views, and will not try to undo these long-needed regulatory reforms.

Guest blog authors William Kolasky and Philip A. Giordano are partners in the Washington, DC office of Hughes Hubbard & Reed LLP. Both Kolasky's and Giordano's areas of focus include antitrust & competition and litigation.

The National Association of Broadcasters has again told the FCC that the agency needs to extend the UHF discount from the 39% national audience reach cap to all VHF stations as well, saying even that overstates their actual audience reach.

But while it said the FCC should reject the pay TV industry's "self-serving arguments supporting the disparate regulation of TV broadcasters," it does not address many of its own members' call for disparate treatment in a separate filing.

In its reply comments on the FCC's inquiry into the cap and 50% UHF discount, the NAB focused on pay TV industry comments that the cap should be retained and the UHF discount eliminated, but did not address the broadcast TV affiliate associations' request that the FCC effectively double the cap for them, but not for network-owned stations. The last time affiliates and network-owned stations squared off over the cap, it fractured the association.

But the NAB has plenty of other targets -- cable operators, satellite operators -- and stuck with taking aim at various pay TV arguments.

The NAB said, for example, that the pay TV industry's allegations of excessive retrans bargaining power are misplaced, suggesting that highly concentrated MVPDs, with their dual control of the pay TV pipeline and broadband access, are the real power brokers.

"[R]ather than TV stations being able to play multiple distributors against one another, as Dish asserts, in reality TV stations prefer to -- indeed must –- reach retransmission agreements with all major pay TV providers to ensure their accessibility to as many viewers as possible," the NAB said.

And to the Writers Guild of America comment that consolidation equates to a decline in diversity of content, and that broadcasters are the dominant provider, the NAB said that is from an alternative universe.

The NAB said TV stations have limited effective reach and only a fraction of the potential audience. Given that changed landscape, even discounting half of the "theoretical 100% audience reach...overstates their effective audience," the organization added.

And while the NAB conceded local TV news is a trusted news source relied on by "many," it said that reliance has declined in the face of competition from many other news sources, particularly digital ones that other commenters failed even to take into account.

The FCC's Inspector General late last year agreed to open an investigation into FCC chair Ajit Pai's handling of the Sinclair Broadcasting-Tribune Media merger and related media ownership deregulatory decisions.

That is according to Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee, who sought the IG investigation last fall.

Pallone was concerned that Pai had improperly pushed for various deregulatory moves, such as restoring the UHF discount and loosening local ownership restrictions, to benefit Sinclair, whose Tribune purchase was a big beneficiary. He said the IG is also investigating whether the dereg was "coordinated" with Sinclair.

Related | broadcastingcable.com: FCC Seeks More Evidence of Sinclair Deal Claims

Pai has said the review has been by the book, and he has long argued for deregulating broadcasting and that the UHF discount should be looked at in tandem with the 39% ownership cap, including whether an analog discount should replace it, though he has also suggested the UHF discount was an anachronism.

"For months I have been trying to get to the bottom of the allegations about chairman Pai’s relationship with Sinclair Broadcasting,” Pallone said in a statement and to The New York Times, which first reported of his confirmation of the investigation. “I am particularly concerned about reports that Chairman Pai may have coordinated with Sinclair to time a series of Commission actions to benefit the company. I am grateful to the FCC’s Inspector General that he has decided to take up this important investigation.”

Related: Demand Progress Wants FCC IG to Investigate Pai Over Sinclair Deal

FCC spokespeople were not available to comment on the status of that investigation or what the threshold for investigating a complaint is, though the FCC website outlines the factors the IG considers in agreeing to investigate.

Back in November, joined by Overnight and Government Reform Ranking Member Elijah Cummings (D-Md.), Pallone asked FCC inspector general David Hunt to investigate whether Pai had "taken improper actions to benefit Sinclair Broadcast Group."

At the time, an FCC spokesperson called the request part of an effort by Democrats to target Sinclair over its perceived conservative political views, and branded the allegations a baseless attempt to distract from the merits of the deal.

It is something of a chicken and egg issue. Did Pai help Sinclair by deregulating as expected, or did Sinclair anticipate that deregulation and time its Tribune deal to capitalize on it?

Pai's spokesperson said back in November of the request for an investigation: “Unfortunately, this request appears to be part of many Democrats’ attempt to target one particular company because of its perceived political views, an effort that dates all the way back to 2004 when Ranking Member Pallone, Ranking Member Cummings, and other Democrats demanded that the FCC investigate Sinclair based solely on the content of a documentary they didn’t like and that hadn’t even aired. Any claim that chairman Pai is modifying the rules now to benefit one particular company is completely baseless. For many years, chairman Pai has called on the FCC to update its media ownership regulations -- one of which dates back to 1975. The Chairman is sticking to his long-held views, and given the strong case for modernizing these rules, it's not surprising that those who disagree with him would prefer to do whatever they can to distract from the merits of his proposals.”

Related: Wheeler Says FCC Bent Rules to Help Sinclair

Pai has rolled back a number of decisions of his predecessor, Tom Wheeler, that he opposed and criticized at the time they were approved, including 2014 guidance on how the FCC would treat joint sales agreements and sharing arrangements between noncommonly owned stations; restoring the FCC's UHF discount; and two proposals scheduled for a vote this week (Nov. 16) -- potentially eliminating or loosening some media ownership limits, and allowing for the rollout of ATSC 3.0 transmissions. The FCC also recently eliminated the main studio rule, which required broadcasters to maintain a studio in their community of license.

Pallone and Cummings pointed to the timing of decisions that impact Sinclair deals (such as its purchase of Bonten stations) and proposed deals (the Tribune acquisition), and said they wanted some answers.

Meanwhile, the FCC has stopped the informal shot clock on its vetting of the proposed Sinclair-Tribune merger while it awaits action by the Department of Justice. Sinclair has modified the deal in light of the FCC's deregulatory moves and in an effort to retain more stations. Likely if and when Justice signs off on that, or its modification of Sinclair's modification, it will need to be refiled with the FCC and put out for public comment.

NCTA-The Internet & Television Association, has told the FCC that Sinclair's response to the commission's request for more information on how it would comply with its rules in the Tribune merger was insufficient and that without that added info the deal must be denied.

That came in comments to the FCC filed Nov. 2.

"Unless and until Sinclair presents a definitive plan for complying with the rules and the public has had an adequate opportunity to review and comment on that plan," NCTA said, "the Commission cannot approve this transaction and should immediately cease conducting its review."

Sinclair suggested to analysts in an earnings call this week that it may do some station swaps rather than divestitures in some markets, and that it was premature to talk about divesting any stations.

NCTA said the FCC can't properly vet the deal until Sinclair says exactly how it will comply with the existing rules, not as they might be modified in the proposed media ownership deregulation item, though that deregulation is expected to be voted on and approved at the FCC's Nov. 16 meeting.

"Sinclair should be required to show that it will comply with existing ownership rules without surreptitiously divesting stations to sidecars that they manage and control in all respects except on paper, or by carrying multiple “top four” affiliate signals on the same broadcast station as multicast signals," NCTA said.

If the FCC does approve the ownership rule changes, which would allow for smaller market duopolies and, at least potentially, owning two of the top four-rated stations in a market, and Sinclair amends the application to reflect that, NCTA also says that is the kind of substantial change that should prompt the FCC to re-notice the application, seek comment, and start a new shot clock. "Anything less would be a violation of the Administrative Procedures Act and the Commission’s public interest standard," NCTA said.

In in earlier comments, the FCC said Sinclair needed to provide more details, something the FCC also asked for.

The FCC's informal clock on the deal is at day 104, having restarted Nov. 2 after the commission paused it to give commenters, like NCTA, a chance to weigh in on Sinclair's response to the request for those details.

FCC chair Ajit Pai said he has circulated for a vote at the November meeting a media ownership item that would achieve major broadcast deregulation.

It would eliminate the newspaper-broadcast crossownership rules, the radio-TV crossownership rule, the eight-voices test for duopolies, the attribution rules for joint sales agreements (by concluding they serve the public interest), and "finally, finally," Pai said, establish an incubator program for new, diverse entrants.

Pai outlined the item at a House Communications Subcommittee hearing Wednesday (Oct. 25). The committee was prepared for the bombshell.

"It’s curious that this hearing is scheduled for today in particular — just one day before Chairman Pai is expected to make public at least one proposal that enriches a single company above others, and that would clear out any last obstacles to Sinclair Broadcasting’s purchase of Tribune Media Company," said ranking member Rep. Frank Pallone (D-N.J.).

Pai has long signaled such deregulation was coming, likely before the end of the year, and broadcasters have long pushed for such deregulation, arguing it was designed for a marketplace without MVPD and online competition.

Commissioner Mignon Clyburn, who was also at the witness table, said the proposal was to get rid of the best of broadcast regulations.

House Democrats on the panel suggested the dereg was yet another thumb on the scale for the Sinclair-Tribune deal.

A determined, almost combative, Pai said that the text of the decision would be published Thursday, calling it "news that's fit to print."

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."