House Democrats want some answers from the FCC on a decision they say appeared to "ignore" a federal court's rejection of some of the commission's media ownership deregulation efforts.
In a letter to FCC chair Ajit Pai, Energy & Commerce Committee chairman Frank Pallone, Jr. (D-N.J.) and Communications Subcommittee chairman Mike Doyle (D-Pa.) cited the FCC's decision one day after a court struck down its rule dereg to allow the combination of KDFY-TV and KDLT-TV, both Sioux Falls, the number two and three rated stations in the market, respectively.
FCC rules prohibit an entity from owning two of the top four TV stations in a market, but under the FCC's deregulatory Media Ownership decision,
Both NCTA-The Internet & Television Association and the American Television Alliance (ATVA) had opposed the sale, saying it would raise retransmission consent rates, but the FCC said those were speculative and unsubstantiated harms.
The U.S. Court of Appeals for the Third Circuit last month threw out, or at least threw back to the FCC, some of Pai's efforts to deregulate broadcast ownership, saying the agency "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities."
The FCC said that granting the top-four combo--via a waiver of the top-four prohibition--"would be appropriate even under the Commission’s pre-2017 rule..." having concluded that the combination "is likely to produce definite, verifiable, and transaction-specific public interest benefits," including making the two stations stronger competitors to top station KELO-TV, which gets the lion's share of the ad revenue. That argument mirrors the FCC's approval of the T-Mobile-Sprint combo among two of the top four wireless carriers as providing a stronger competitor to Verizon and AT&T.
The legislators disagreed.
“In allowing this transaction to go forward, the FCC undermines the rule of law and the decision of the Third Circuit,” Reps. Pallone and Doyle wrote. “The FCC’s technical arguments about why it doesn’t have to comply with the Court’s decision seem highly suspect, at best, and an intentional flouting of the rule of law at worst.”
They want answers to the following questions by Dec. 12:
1. "Will the FCC reconsider the acquisition of KDLT-TV once the Court’s mandate has been issued?
2. "Did the FCC seek the opinion of the Court, or the Office of General Counsel, regarding the legality of relying on the FCC rules that have been struck down by the Prometheus Radio Project v. FCC Decision? If so, please provide all written communications to that effect in the FCC’s possession.
3. Is the FCC currently reviewing transactions that are seeking waivers of the broadcast ownership rules? If so, please provide the Committee the details of those transactions.
4. Is the FCC currently reviewing transactions that would require a waiver to comply with the broadcast ownership rules in place either prior to or after the Prometheus Radio Project v. FCC Decision? If so, please provide the Committee the details of those transactions."
"The Bureau’s decision regarding the Sioux Falls transaction was in full compliance with the law," said an FCC spokesperson. "Indeed, the Bureau’s decision made clear that the transaction would be granted under either the old rules or the new rules. Also, the local television ownership rule adopted by the Commission in 2017 remains in effect unless and until the Third Circuit issues its mandate."
