Cable lobby to sue Trump FCC over repeal of national TV ownership cap

The cable groups’ filing said the FCC repeal of the TV ownership cap violates the 2004 action by US lawmakers. The decision by Congress to set the cap at a precise numerical threshold was unambiguous, the filing said. “Congress established the National Cap at 39 percent in the 2004 CAA [Consolidated Appropriations Act] in direct response to the FCC’s attempt to aggressively raise the Cap to 45 percent and made repeated references to the 39 percent Cap in the statute,” the petition said. The petition to the FCC is mainly a procedural step as the commission isn’t likely to stay its own order. The cable groups said they intend to sue the commission in a US appeals court once the FCC order is published in the Federal Register. After the lawsuit is filed, they can ask the court to issue a preliminary injunction that would keep the TV ownership cap in place pending the outcome of litigation. The filing was submitted by cable industry groups that represent providers in Colorado, Florida, Indiana, Michigan, Minnesota, Mississippi, Pennsylvania, Virginia, Washington, and the six New England states. The state and regional groups represent large and small cable companies, including the nation’s biggest cable operators Comcast, Charter, and Cox. The cable groups’ petition said the FCC can’t change the cap because the 2004 law “references the 39 percent Cap as statutory, not regulatory.” A provision requiring divestiture of stations “specified that someone exceeding ‘the 39 percent national audience reach limitation in paragraph (1)(B)’ of ‘section 202(c)’ of ‘[t]he Telecommunications Act of 1996’ ‘shall have not more than 2 years to divest,’” the petition said. “Likewise, Congress singled out the Commission’s only mechanism for setting aside statutory requirements—the Commission’s forbearance authority under 47 U.S.C. § 160—and made clear that it ‘shall not apply to any person or entity that exceeds the 39 percent national audience reach limitation,’” the cable lobby petition said. The FCC order argued that the agency’s “ability to forbear from enforcement of its rules is distinct from its power to alter or eliminate those rules,” and that the FCC forbearance authority doesn’t apply to regulation of broadcasters. Cable lobby groups aren’t the only ones likely to sue the FCC. After the August FCC vote, media advocacy group Free Press said it plans to join with allies “to appeal this unlawful decision in court.” “Changing this limit requires congressional action, but Carr doesn’t care,” Free Press General Counsel Matt Wood said at the time. “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.” Even before repealing the TV ownership cap, the Carr FCC waived the rule when it approved the Nexstar Media Group purchase of Tegna. The Nexstar/Tegna combination would reach 80 percent of TV households in the US, or 54.5 percent when applying what’s known as the “UHF discount” in which only half of the households reached by a UHF station are counted toward the limit. A federal judge ordered Nexstar and Tegna to stop integrating their assets and operations while an antitrust lawsuit filed by DirecTV proceeds. The petition from cable groups said the judge “found that the Nexstar/Tegna transaction would result in higher retransmission consent fees, causing harm to consumers, and issued a preliminary injunction that keeps the companies separate to this day.” The groups said the harms from the Nexstar/Tegna deal are “merely a preview of the further massive broadcast industry consolidation and higher consumer prices that will follow if this Order [to repeal the national limit] is not stayed.” Disclosure: The Advance/Newhouse Partnership, which owns 14 percent of Charter, is part of Advance Publications, which owns Ars Technica parent Condé Nast.