NAB Files Brief In Ownership Rules Case

Taking Ownership Of The Issue

The NAB has filed its brief in the PROMETHEUS RADIO PROJECT, et al. v. FCC ownership rules challenge case in the Third Circuit Court of Appeals TODAY, arguing that the FCC's readoption of the local television ownership cap was "arbitrary and capricious" but that the Commission's retaining the status quo for radio ownership was justified, as was relaxing the cross-ownership ban.

The comments, filed in conjunction with the COALITION OF SMALLER MARKET TELEVISION STATIONS and RAYCOM MEDIA, took aim at the Commission's retention of the duopoly rule that restricts ownership of more than one station unless the second station to be commonly owned is not among the top four rated in the market and eight independent full-power stations would remain post-merger.  

"This Court cannot uphold the Commission’s failure to meaningfully review its outdated broadcast ownership restrictions," wrote the NAB. "The Commission has made conclusory assertions, contradicted itself, changed course without explanation, failed to consider important aspects of the problem it faced, failed to respond to significant comments, and acted contrary to the evidence."  

The NAB cited the Commission's decision to treat broadcast TV stations as competing only against other broadcast stations as an example of an arbitrary and capricious rule that had been blocked in SINCLAIR BROADCAST GROUP V. FCC in 2002.

Regarding radio, the retention of the numerical limits within markets met with the NAB's general approval; the NAB said that the agency's "conclusions with respect to diversity were supported by substantial evidence."  "The Commission’s conclusions are consistent not only with the evidence before it, but also with common sense," wrote the NAB. "It is not logical for an owner of multiple stations in the same market to 'double up' on formats, artists, playlists, or viewpoints, and thus see its stations cannibalize each other’s market shares." 

In addition, said the NAB, "the Commission was correct to conclude that 'the evidence does not show that consolidation in local markets has harmed localism,'" but the NAB added that "the record in this proceeding reaffirmed the need to give local radio broadcasters more leeway for making efficient ownership arrangements to allow them to compete in today’s digital, multichannel marketplace."

The brief also supported the relaxation of the newspaper-broadcast cross-ownership ban, but while the Commission now presumes that certain cross-ownership situations are in the public interest, the NAB proposed eliminating the rule altogether and said that retaining the radio-television cross-ownership ban was arbitrary and capricious, based on a presumption that "diversity of ownership promotes diversity of viewpoints."

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