FCC Continues To Punt On The Hard Questions Surrounding Media Ownership
Between the holidays, and to minimal fanfare, the FCC released a decision in the 2018 Quadrennial Review of Media Ownership policy. The timing of the release was no surprise, as the agency had been ordered by the D.C. Circuit Court of Appeals to conclude the proceeding by December 27th.
The FCC's decision, which made only minor changes to the existing media ownership rules, is the latest dating back to Section 202(h) mandate from the 1996 Telecommunications Act to periodically review U.E. media ownership rules. The agency has struggled to meet this obligation, most recently by having the 2018 and 2022 Quadrennial review processes open at the same time.
Not doing much on media ownership policy has been the agency's primary course of action since Congress set new limits on station ownership for the FCC. Those limits, which the FCChas decided again not to modify, if you're old enough to remember were the ones that led to rampant consolidation of media especially on the radio side, like Clear Channel (now Iheartradio) which once owned more than 1300 radio stations.
In the first review in 1998, the agency chose to do nothing because the consolidation craze was still in progress, one I had a front row seat for working as a talk radio producer for Clear Channel. In 2000, the agency decided to review itself" rather than make substantial changes to the rules. But things got interesting in June of 2003, when the FCC proposed the Diversity Index while burying evidence that its media ownership policy was actually counterproductive.
The challenge to the 2003 decision, brought by a collection of citizen petitioners led by the Prometheus Radio Project, was the first of four legal defeats as the FCC's ownership decisions were sent back to the agency in 2004, 2011, 2016 and 2017 by the Third Circuit Court of Appeals.
At the heart of these regulatory setbacks was the FCC's inability or unwillingness (depending on when we're talking about) to develop a coherent ownership policy that expanded ownership by minorities. During the Third Circuit's four reviews, the court failed the agency for inaccurate statistics and even accused the FCC of largely punting" on the minority ownership issue.
After the decision in Prometheus IV, the Supreme Court became involved in what had become a bitter three-way dispute between the FCC, the citizen petitioners and the National Association of Broadcasters (NAB). After hearing oral arguments on the last day of Ajit Pai's led FCC over the agency's 2017 Incubator minority ownership" program (that didn't include any provisions to increase minority ownership) and some associated rule changes released in 2018, the decision in Prometheus V" granted the agency additional some additional deference on media ownership policy.
Despite the win, the FCC has largely operated using the traditional spin its wheels approach to media ownership and industry consolidation. The Incubator minority ownership policy, that is strangely not about minorities, hasn't had a single successful applicant, and the agency reopened the 2018 proceeding to more comments, resulting in the NAB going to court to force this release of this most recent decision.
To the FCC's credit, the agency's latest order does not permit any radical new consolidation of the kind the media industry and the NAB was looking for, at least not yet. But the failure to even change any of the existing rules almost guarantees the FCC heads back to court, and if the last five rounds of this legal and policy battle are any indication, it will be a lengthy judicial process.
Kicking the can down the road has been how the agency has been handling the entire issue for almost 30 years now, so that's not going to be a shock to anyone who has been paying attention.
Localism and diversity, two objectives of media ownership policy, have suffered while women and minorities control insignificant numbers of commercial broadcast stations. Consolidated radio companies have become increasingly reliant on syndicated programming in order to cut production costs. And although radio is old tech, talk radio is delivering content to five to ten times the primetime Fox News audience every day. Broadcasting is still important, and diverse ownership still matters.
Right or wrong, the Rosenworcel led FCC has been largely focused on digital divide and broadband issues. The agency will spend a solid chunk of its 2024 fighting to (re)implement Title II and Net Neutrality provisions to ISPs. While these are important issues, the FCC needs to find the bandwidth (pun intended) to deal with media ownership policy before concluding the (already open) 2022 Quadrennial process.
Christopher Terry is an Associate Professor of Media Law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota. A former radio producer, his research on media and minority ownership was cited in filings in Prometheus Radio Project v. FCC and his rulemaking comments were cited by the agency in the December 27th order.