NAB Says DOJ JSA Comments Are Based on False and Dated Assumptions

The National Association of Broadcasters has taken aim at the Department of Justice comments supporting an FCC proposal to make some TV joint sales agreements attributable as ownership interests, as the commission does in radio.

DOJ told the FCC last month that the commission should treat TV joint sales agreements (JSAs) as attributable ownership interests, and that shared sales agreements should be looked at on a case-by-case basis. The FCC has only proposed making JSAs of more than 15% of another station's ad sales attributable--as do TV programming agreements for more than 15% of airtime. But DOJ said any JSA should be attributable.

In a submission to the FCC's various ownership dockets, NAB said DOJ's policy recommendation is based on both false and dated assumptions that broadcasting is the relevant antitrust market, rather than acknowledging competition from non-broadcast competitors like cable and other MVPDs.

The association argues that DOJ is trying to further its own antitrust interests at the expense of the public interest standard.

"What the Department plainly wants is for the Commission to prioritize the narrow focus of the antitrust laws (in this case, to benefit large corporate advertisers and cable companies) and deemphasize the Commission's broader charge to protect the public interest. And the Department is overtly aware that its advice is in tension with core Commission policies and responsibilities," says the NAB.

"In its submission, [DOJ] explains that it 'recognizes that the Commission's ownership rules are also motivated in part by the need to promote localism and diversity, and that those concerns may call for somewhat different analysis than the approach the Department favors," says the NAB. "On this point, the Department is correct – its proposed rule change would reduce the Commission's ability to fulfill central components of its mission."

NAB said that according to Bond & Pecaro, cable ops earned more than $1.7 billion in local ad revenues in the top 10 Nielsen DMAs. That, says the NAB, is the equivalent of the ad take from three additional TV stations in the top 10 markets.

Then there are cable operators and telcos and satellite operators who sell ads via interconnects and online competitors.

"The bottom line is that the Department's entire submission hinges on the false and implausible premise that advertising on local broadcast stations has no close substitutes," wrote the NAB.

FCC Chairman Tom Wheeler has signaled the commission will vote March 31 to limit those TV JSAs, while providing a case-by-case waiver process for JSAs that broadcasters can prove serve the public interest.

John Eggerton

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.