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The U.S. court of appeals for the Third Circuit last week scheduled oral arguments in broadcasters’ challenge to the FCC’s decision to make most TV station joint sales agreements (JSAs) attributable as ownership interests.
The case in question is HowardStirk Holdings LLC v. FCC, et al.
Arguments will be held April 19, with broadcasters getting 20 minutes to make a case for the need for deregulation.
At stake is 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 recently grandfathered existing JSAs—via a rider on the budget bill that passed last December—so those won’t have to be unwound anytime soon. That was a huge victory for broadcasters, but this case is about more than just short-, or even medium-term gain.
“This is still an important lawsuit, despite the JSA relief that Congress granted,” says National Association of Broadcasters spokesman Dennis Wharton, “because the law passed by Congress grandfathered for 10 years existing JSAs but did not permit future JSAs, which the FCC intends to block. Perhaps more importantly, the lawsuit focuses on the fact that the FCC continues to ignore a Congressional statute requiring a quadrennial review of all media-ownership rules.”
The NAB (along with Howard Stirk Holdings and Nexstar) briefed the court back in April 2015 on their issues. They argued that the FCC evaded its obligation by rolling the unfinished 2010 congressionally mandated ownership review into a 2014 proceeding that won’t be done until this year, if then.
They argue the FCC had a statutory responsibility to make a decision on whether existing rules limiting station ownership were still necessary long before this.
As to the JSA decision, they pointed out that while the FCC said it could not reach any decisions about existing rules—and thus put off the quadrennial review—it managed to create a new ownership rule regarding JSAs.
Turns out that the Third Circuit’s April 19 date will fall in the middle of the NAB’s annual show in Las Vegas, giving attendees more than the latest tech gear or panel sessions to ponder as the court mulls an important fate point for broadcasters.
