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Federal Court Stays FCC UHF Discount Decision, for Now

A D.C. federal appeals court has stayed the FCC's decision to reinstate the UHF discount, but it is only an administrative stay to give the court time to review the arguments it asked both the FCC and Free Press et. al to file by Thursday, June 1, and Friday, June 2, respectively, in the latter’s request for a longer emergency stay.

The administrative stay gives the court more time to review those filings.

It does mean that the UHF discount does not return on June 5, which was its effective date and which would have signaled that deals such as the Sinclair/Tribune merger could be cleared for takeoff if the FCC saw fit.

Related: NAB Asks to Intervene for FCC in UHF Discount Court Case

The UHF discount meant that UHF station owners only had to count half of their audience toward the 39% national cap.

Free Press, Prometheus and others have sought an emergency stay of the decision.
"[T]he April 20, 2017 Order reinstating the 'UHF discount' be administratively stayed pending further order of the court,” said the U.S. Court of Appeals for the D.C. Circuit, according to a copy or the notice supplied by one of the parties. “The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for stay pending review and should not be construed in any way as a ruling on the merits of that motion."

And rather than giving Free Press et al. only a day to respond, they now have until June 7 to respond both to the FCC and to the intervenors for the FCC, which a source said includes a number of individual broadcasters as well as the National Association of Broadcasters.

There is a high bar for emergency stays, but Free Press attorneys suggest it has been met in this case.

They say they are likely to prevail on the merits of their appeal because the FCC was arbitrary and capricious to reinstate a rule it conceded is obsolete and does not serve the public interest; the FCC was arbitrary and capricious to reinstate the discount assuming it will conduct a future proceeding to consider raising the 39% cap on national audience reach and modifying the discount at the same time, particularly given that it says the FCC lacks the authority to modify the 39% cap, which was set by statute. They also say viewers will face irreparable harm because if the cap is reinstated the FCC will approve mergers and broadcasters will not be harmed because staying the return of the discount is preserving the status quo.

The petition for emergency stay was filed by Free Press, Media Mobilizing Project, Prometheus Radio Project, National Hispanic Media Coalition and Common Cause.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.