The petition was filed by Georgetown University Law Center Institute for Public Representation lawyers Angela Campbell, Andrew J. Schwartzman and Drew Shimsaw on behalf of the Office of Communication of the United Church of Christ, Prometheus Radio Project, Media Mobilizing Project, Media Alliance, National Hispanic Media Coalition and Common Cause.
By a 2–1 vote along political lines, the FCC restored the discount pending a wider review of media ownership regulations, which eased the way for more media deals, including Sinclair’s proposed $3.9 billion purchase of Tribune.
The FCC under Democratic Chairman Tom Wheeler had eliminated the discount as part of his review of ownership regulations, the latest review under a quadrennial schedule and also in response to a remand from the Third Circuit Court of Appeals that dates back to 2003, when that court blocked deregulatory media ownership reg changes.
The discount means the FCC only counts half of a UHF station’s coverage toward the FCC’s 39% cap on national audience reach.
The Wheeler FCC eliminated the discount in September 2016 given that it dated from the pre-DTV days when the UHF signal in analog was inferior to VHF, which was the reverse for digital broadcasts.
The petition argues that absent a stay, viewers will suffer “immediate and irreparable harm” because 30 days after the decision is published station owners can start buying stations that will give them an “actual” audience reach beyond 39%.
It argues that the petitioners are likely to prevail on the merits of their challenge, that a stay won’t hurt because it leaves the status quo, and that it would promote the public interest by maintaining diversity of voices.
Though the FCC’s earlier vote to repeal the discount did grandfather existing groups that would have exceeded the cap, it did not allow those to be sold with the grandfathered percentage intact.
FCC Chairman Ajit Pai has said the discount may indeed be an anachronism — it dates from analog TV days when the UHF signal was the less desirable one, which is not the case in digital — but has said that should likely not happen without raising the 39% cap or perhaps applying the discount to VHFs.
Petitioner attorneys filed the petition by hand because they said the FCC’s online filing system did not work.
— Broadcasting & Cable