This guest column is by broadcast law attorney and frequent guest contributor David Oxenford. The article was originally published on his Broadcast Law Blog.
After months of speculation, Chairman Wheeler today announced that he will step down from the FCC on Inauguration Day. Together with the Senate not confirming the renomination of Commissioner Rosenworcel (as the Senate is effectively on recess and not expected to return before the end of the term, her renomination will almost certainly not be approved in this session of Congress, meaning that she must step down when the Congress adjourns on January 3), that leaves three Commissioners on the FCC. Two are the current Republican commissioners – Pai and O’Rielly – and Democratic Commissioner Mignon Clyburn. What will that mean for broadcasters?
First, it is expected that one of the two Republicans will be named as Acting Chairman to set the agenda for the first few months of the Trump administration, until a permanent Chair is announced (and confirmed by the Senate, if that Chair is not one of the two current Republicans). These commissioners have been vocal in their dissents on several big issues for broadcasters – including the repeal of the UHF discount (about which we wrote earlier this week) and on other issues dealing with the ownership of television stations – including the decision to not repeal the newspaper-broadcast cross-ownership rules, and the decision to reinstate the FCC’s ban on Joint Sales Agreements in TV unless they are done between stations that can be co-owned. We already speculated about these issues being on the Republican agenda soon after the election. What other issues are likely to be considered?
Certainly, the abolition of the requirement that commercial broadcasters maintain in its public file copies of all letters and emails from the public about station operations is already on the table (see our article here), and could easily be adopted quickly. It is also possible that a formal petition for rulemaking on ATSC 3.0 would be released, as some TV operators have been pushing to move the next-generation of television closer to becoming a reality. Commissioner O’Rielly has also suggested that EEO recruiting be moved online (which, thus far, the FCC has not recognized as alone being sufficient to meet the EEO requirements that job opening information be widely disseminated to all groups within a station’s service area – see our article here). I recently filed a petition on behalf of a client seeking that relief (see the petition here), so the FCC could move on that issue. Commissioner Pai has also been a big advocate for AM broadcasters so further action on the revitalization of AM now before the FCC (see our post here) could also be given higher priority by the FCC. Commissioner O’Rielly has also suggested tougher enforcement actions against pirate radio operators.
In a broader sense, there may be reform of how the FCC does business. Both Republican Commissioners have suggested process reform – to make the actions of the FCC more transparent so that interested parties know what issues are on the table and what rules are being considered – before they are adopted. This is clearly important so that the rules, before they are adopted by the FCC, can be vetted by those affected to be sure that no inadvertent “gotchas” result from imprecise language in the rule. Timing of FCC decisions is also important, so that the FCC expeditiously moves on matters that can affect the businesses of broadcasters and other regulated entities. It would also be expected that these Commissioners will be concerned with the costs of implementing regulations that are adopted – and especially how regulations affect the small companies to which they apply. So often rules are adopted that may make sense, or may be feasibly implemented, in large markets, but which are a real burden to those stations in smaller markets.
Of course, many hopes can be projected whenever there is a change in control of any entity – whether it be a business or a government agency. As with so much else in life, only time will tell what actually happens. But both of the Republican commissioners and Commissioner Clyburn as well (under whose acting Chairmanship the AM revitalization proposals were first advanced), have shown real interest in broadcast regulation. So broadcasters can hope that the new FCC will take actions that will allow them to concentrate their efforts on serving their communities through great programming and other public service efforts.