Free Press and the other challengers to the FCC's decision to reinstate the UHF discount have told a federal court that it makes no sense for the FCC to reinstate a rule it concedes is obsolete "based on the mere possibility that the Commission will, in the future, open a proceeding to consider something that, as of now, a majority of the Commission believes it cannot or should not do."
That came in their filing in support of a request for an emergency stay of the implementation of the UHF discount, which was scheduled to happen June 5 but was delayed by the U.S. Court of Appeals for the D.C. Circuit to allow more time to consider the stay request and the FCC's response. The filing was also in response to Sinclair's intervention in support of the FCC and in opposition to Free Press' motion for the stay.
The discount means that a station group only has to count half the audience of its UHFs toward the 39% ownership cap, which dates from the pre-digital TV days when UHFs were the weaker signals. Staying the FCC decision would put a crimp in Sinclair's proposal to buy Tribune, which without the discount would push Sinclair's national reach past 70%.
In defending the stay to the court, Free Press attorneys pointed out that even in voting for returning the discount, Republican commissioner Michael O'Rielly said he did not think the FCC had the authority to adjust the statutorily-set 39% cap on a TV station group owner's national audience reach, the reconsideration of which FCC chair Ajit Pai had given as a reason for reinstating the discount he conceded was likely obsolete and instead reviewing the discount along with the 39% cap.
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With Democrat Mignon Clyburn voting against restoring the discount, that made the two of three commissioners the Free Press filing referred to, and potentially changing the cap was the thing Free Press is saying the FCC could or should not do, according to O'Rielly and Clyburn.
Sinclair argued that eliminating the discount did not guarantee the FCC would approve its transaction or other future deals, but Free Press said Sinclair did not point to a single example "this century." Free Press also said that while Sinclair said that if the court were to reverse the commission it could mean the divestiture of stations bought "during the pendency" of the case's outcome, that flew "in the face of the reality that no mandated television divestiture has been effectuated in decades."
"Reinstating the discount now, rather than awaiting the outcome of this hypothetical future proceeding, will usher in a wave of media consolidation that undermines the agency’s core statutory objectives," Free Press said. "This consolidation will harm the public by reducing the diversity of voices in the national marketplace of ideas and limiting competition in program production and procurement, thereby lowering the quality and quantity of programming available to the public.
"Unless this Court stays the FCC’s order, the nation’s television ownership structure will be significantly and irreparably altered well before this Court will have time to reach a determination on the merits," Free Press continued. "Granting a stay would maintain the status quo pending judicial review, would not harm broadcasters, and would protect the public interest during the course of this proceeding."
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.
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