Update, May 12, 2014: The National Association of Broadcasters announced that it did indeed file a suit in the US Court of Appeals for the DC Circuit.
Original Story, April 2: The National Association of Broadcasters is hinting that it might sue to block Federal Communications Commission rules approved earlier this week that bar broadcasters from owning multiple television stations in the same market. The threat comes as congressional Republicans push legislation that would prevent the FCC from taking action against such arrangements.
The moves to stop a crackdown on conglomerates would make it more difficult for the FCC to do its job of regulating the public airwaves; press advocates say both efforts are dead on arrival.
“The NAB can threaten to sue all they want, but the truth is the FCC’s action is based on a record more than a decade old. They [the NAB] don’t have a leg to stand on here,” said Derek Turner, researcher with the Washington, DC-based media advocacy organization Free Press. He called a provision designed to impede the FCC “nothing more than saber rattling at the behest of industry giants.”
Joint Service Agreements or Shared Service Agreements exist in about 94 local television markets across the country, almost half of the 210 local TV markets nationwide, and up from 55 in 2011, according to the Pew Research Center. Media advocates say such agreements circumvent longstanding FCC rules against monopolizing public airwaves. Accordingly, many Democrats and press advocates oppose shared service agreements, while media conglomerates argue that the agreements have kept struggling local television stations on the air. Broadcast television is still Americans’ main source for news and information.
Those who oppose joint operating agreements also point to them as being partly responsible for driving down diversity inside television newsrooms. About 10 years ago, there were 21 full-power commercial television stations licensed to African American controlled companies; today there are three, according to the National Association of Black Owned Broadcasters. Former conservative pundit Armstrong Williams owns two of them–one in Flint, MI, and the other in Myrtle Beach, SC. Women own just 5 percent of the 1,400 commercial broadcast television stations in the US.
Williams, who was initially against the anti-media consolidation rule when it was proposed because he said it would force him to shut down his television stations, now says he is “encouraged” by the fact that the FCC will offer waivers for joint service agreements that honor diversity. The specific language for the waivers has yet to be decided.
Richard Prince of the Maynard Institute reported Tuesday that Williams’ lawyer said he plans to seek waivers for stations he currently owns as well as those he plans to buy in Charleston, SC, Harrisburg, PA, and Birmingham, AL.
Even if the Republican-controlled House of Representatives passes legislation that prevents the FCC from regulating these joint agreements, it is unlikely a bill would make it through the US Senate.
Calling the FCC’s decision to end the practice of shared service such agreements “arbitrary” and “capricious,” the broadcasters association warns that commissioners didn’t give enough notice of the rule change, which limited public participation in the process. A spokesman for the association said that a final decision has not been made regarding a possible suit.
“[Anti-FCC] efforts are better spent trying to exploit other loopholes,” Free Press’ Turner said. “With this decision, the FCC is sending a signal that it’s not going to stand by and let companies ignore the rule of law, that it’s not going to look the other way while companies exploit these rules at the expense of consumers, particularly women and people of color.”
Tracie Powell writes about the media and media policy, specifically on issues regarding piracy, media ownership, government transparency and the business of journalism. A graduate of Georgetown University Law Center, she lives in Washington, DC. She has contributed to Poynter, NPR, and Publica, the first nonprofit investigative journalism center in Brazil.