Substantive 2020 QR Action Considered Unlikely
Broadcasters and their attorneys don’t expect substantive action on the 2018 quadrennial review this year, they said in interviews. The Supreme Court isn’t expected to announce a decision on the FCC’s cert petition appealing the 3rd U.S. Circuit Court of Appeals Prometheus decision until early October, and then the presidential election will be imminent. In past election years, that meant an FCC was unlikely to take up controversial or complicated topics. Chairman Ajit Pai is also believed to be eyeing an exit no matter the election results, numerous industry officials said. “Given the timing, with the court considering cert and the pending election, there’s not likely to be action before the end of the year,” said Lerman Senter's Sally Buckman.
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“The quadrennial review is dead,” said Gray Television Deputy General Counsel Robert Folliard. If SCOTUS takes up the case, arguments won’t take place until well into 2021, and the FCC is considered unlikely to act until the case is resolved. The cert petition is seen as having mixed chances (see 2001220049).
If the court doesn’t take the case, any action the regulator takes is destined to go right back to the 3rd Circuit, and Pai could view that as a pointless exercise, Folliard said. The agency’s hands are tied because the 3rd Circuit left an “impossible” bar to meet, a broadcast attorney said. “The FCC hasn’t made any attempt to engage with the 3rd Circuit’s ruling,” said United Church of Christ attorney Cheryl Leanza, who successfully argued Prometheus petitioners’ case before that court. The commission declined to comment.
Alpha Media CEO Bob Proffitt agreed movement on the QR and ownership rules is unlikely this year, saying “it’s a shame” because of COVID-19’s effect on radio stations. An FCC move to relax radio subcap rules would be a big help to the industry, Proffitt said.
The agency already issued an NPRM for the 2018 QR, but the comment cycle happened before the agency’s loss in Prometheus IV and the subsequent rollback of many of the Pai FCC’s relaxations of broadcast ownership rules (see 1911180053). Most broadcast attorneys said the agency would likely have to issue a Further NPRM to account for the changed circumstances before it could put out a new order.
The presidential election likely affects that process, executives and industry lawyers said. Some said putting out an FNPRM would allow Pai to say he didn’t leave the QR process unfinished and to influence whatever order is released by his successor. A change in the White House would likely mean such efforts would be quickly reversed, though, said Fletcher Heald's Dan Kirkpatrick. He noted Pai’s own actions after taking the chairman’s seat, when he reversed numerous policies from later in his predecessor’s administration (see 1702100015).
If SCOTUS doesn’t accept the FCC’s cert petition, broadcasters are unlikely to focus much on an upcoming QR, Folliard said. The industry would then view future losses on ownership at the 3rd Circuit as inevitable, and direct its energies toward congressional action, Folliard said. “Then the only remedy is through Congress.”