Free Press, United Church of Christ, and the almost half dozen others who are challenging the FCC's decision to reinstate the UHF discount, have told a federal court that nothing in the arguments from the government and broadcasters has changed the relevant facts.
That came in its reply brief to the U.S. Court of Appeals for the D.C. Circuit.
A divided FCC in April voted to restore the discount.
The main thrust of their argument is that 1) the court has jurisdiction, 2) that the Pai FCC's reinstatement of the UHF discount was arbitrary and capricious, which makes it illegal; 3) that the decision to reinstate it for an indefinite period was arbitrary and capricious; 4) that even if the FCC has authority to modify the cap, decision to reinstate the discount "pending the outcome of a rulemaking that may never be complete" is arbitrary and capricious."
"Neither the governmental Respondents nor the broadcast industry Intervenors effectively respond to Petitioners’ demonstration that it was arbitrary and capricious to reinstate the UHF discount for an indefinite period," they told the court. "It is not hard to see that reinstatement of the concededly obsolete discount is a shrewd, but indefensible, mechanism to circumvent the Congressionally-mandated limit on national TV ownership."
In September, the coalition of nonprofit media consolidation critics, laid out their case for why the decision to reinstate the discount was arbitrary and capricious and not in the public interest.
The previous Democratic-led FCC had eliminated the discount as an outmoded artifact of the analog TV era.
The discount means that a TV station group owner has to count only half a UHF stations audience toward the 39% national audience reach cap. It dates from the analog era when UHF stations were the weaker signals, which is the reverse in digital. Chairman Pai argued that, while the discount may indeed need to go, the FCC should have considered that move in concert with rethinking the 39% cap with which it was inextricably linked, he argued.
The groups say the FCC did not err in treating the discount as a separate item because the decision did not "tighten" the cap, but furthered its purpose. Without the discount, a station could reach up to 78% of the country, they point out.
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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.