Trump FCC kills TV ownership cap, claiming authority over limit set by Congress

For courts, the main question will be whether the FCC can change the cap at all. Congress directed the FCC to set the cap at 39 percent in 2004, overriding a 2003 FCC decision to raise the limit from 35 to 45 percent. The 2004 law change also said the FCC cannot repeal or modify the cap during its quadrennial reviews of media rules. Media advocacy group Free Press said it will sue the FCC in an attempt to block the change. “Changing this limit requires congressional action, but Carr doesn’t care,” Free Press General Counsel Matt Wood said. “He’ll do whatever it takes to clear the way for Trump-aligned billionaires to swallow up stations wherever and whenever they please. The result would be just one or two dominant broadcasters in every market, deep job cuts for journalists, and an influx of bargain-basement content disguised as local news.” Carr previously waived the TV ownership rule when the FCC approved Nexstar Media Group’s purchase of Tegna that let it reach over half of TV households, and the merger is being challenged in court. A federal judge ordered the companies to stop integrating their assets and operations while an antitrust lawsuit filed by DirecTV proceeds. Nexstar sided with Carr last year when he threatened ABC station licenses and urged stations to stop carrying Jimmy Kimmel’s show. “It’s worth noting that Republicans with deep firsthand knowledge of this issue also agree the commission cannot do what it is attempting today,” Gomez said. “Former FCC Commissioner Mike O’Rielly has been unequivocal that the FCC lacks authority to change the cap. Former House Majority Leader Tom DeLay, who negotiated the 39 percent compromise, has stressed that Congress intentionally wrote the cap into law to prevent FCC revision. And Senate Commerce Chair Ted Cruz has said he is ‘skeptical a change can be made absent an act of Congress.’ Their consensus reinforces a simple point: Congress set the cap, and only Congress can change it.” In his statement at today’s meeting, Carr said that “the DC Circuit has already rejected the argument that Congress’s decision to pass a statute directing the FCC to set the cap at a specific percentage prevents the FCC from later modifying the cap. The court stated that Congress’s statutory instruction to the Commission to set the cap at a specific percentage determined ‘only the starting point from which the Commission was to assess the need for further change.’” Carr left out some details. He was referring to a 2002 DC Circuit appeals court decision in which judges wrote that Congress’s 1996 “choice of 35 percent rather than any other number determined only the starting point from which the Commission was to assess the need for further change.” That 2002 ruling was issued before Congress set the cap at 39 percent and imposed limits on the FCC’s ability to change it. Another problem for Carr is the 2024 Supreme Court ruling that overturned the 40-year-old Chevron precedent, which gave federal agencies leeway to interpret ambiguous laws as long as the agency’s conclusion was reasonable. Without Chevron, courts have more power to decide what Congress meant in a statute and don’t have to give deference to a regulatory agency’s judgment. Both Democratic and Republican FCC leaders have claimed authority to change the cap as long as the FCC doesn’t do so during the quadrennial review. Under Democratic Chairman Tom Wheeler, the FCC asserted authority to change any aspect of the cap. The Wheeler FCC tried to make the cap stricter by eliminating an exception that counts only half of the households reached by UHF stations. The change didn’t last long because Republican Chairman Ajit Pai led a vote to reinstate the UHF exception the next year. While Carr is the first chairman to test whether the FCC can eliminate the cap entirely, he said his legal argument is supported by conclusions made by previous FCC chairs. “An unbroken line of FCC chairs going back more than a dozen years all agreed that the FCC has the authority to modify the cap,” Carr said today. Gomez, in addition to arguing that “Congress deliberately enshrined the cap in statute and removed it from the Commission’s review process,” said removing the cap will hurt local broadcasters. “Digital giants compete for their most valuable programming and advertising, while consolidation pressures at the national level threaten the local reporting and public‑safety functions on which communities rely,” Gomez said. “But eliminating the cap does not free local broadcasters from that strain. It just changes who is doing the squeezing. A handful of station-group giants does not represent the wishes of local broadcasters. They are large national companies that own local stations and increasingly dictate what airs on them without much local input. Trading a squeeze from Big Tech for a squeeze from Big Media does nothing to protect the communities this cap was designed to serve.”