This story was produced as part of the Colorado Capitol News Alliance. It first appeared at cpr.org.
The Federal Communications Commission is set to meet Thursday to vote on a change that could impact local television newsrooms in Colorado and across the country.
The FCC is expected to repeal a long-standing cap, currently set at 39%, that limits how many local TV stations a single company can own. While the FCC chairman that has proposed the move has cast it as helping local news, many disagree. The vote sets up a fight over who has the ultimate authority to make the move: the regulatory agency or Congress.
“This 39% rule that was meant to constrain the power of the national program has been doing the exact opposite,” FCC Chair Brendan Carr said at the Hill National Summit on July 15, when he announced plans for this vote. “It's really been holding back local broadcasters from reaching the scale necessary to invest in local news and journalism reporting. I think we need a change from the status quo.”
Carr argued the cap has kept local broadcasters, and thereby local newsrooms, small. He’s not alone. At a Senate hearing in February on media ownership rules, Curtis LeGeyt with the National Association of Broadcasters also advocated for modifying the cap.
“Ownership restrictions that apply only to broadcasters are no longer rational or sustainable,” LeGeyt said, noting these restrictions aren’t placed on tech companies like YouTube or streaming services or cable television stations. “Without modernizing these ownership rules, local television news, the last bastion of truly local journalism in many communities, will suffer the same fate as thousands of local newspapers.”
Anna Gomez, the lone Democratic FCC commissioner, is opposed to the move.
“This unlawful effort to hand control of the public airwaves to billionaire buddies of this administration will destroy local newsrooms, silence community reporting, and drive-up costs for the American families who depend on local stations for news and emergency alerts,” Gomez said in a statement in mid-July after the meeting to change the cap was announced.
“A free and diverse media landscape depends on real limits on how much of the public airwaves any one company can control, and this FCC is now poised to allow local broadcasters to sell those airwaves off to the highest bidder.”
Carr and the other Republican commissioner, Olivia Trusty, are expected to support doing away with the cap, while Gomez is not.
Gomez does not believe the FCC has the authority to do away with the cap unilaterally.
Does Congress have a say?
If recent history is any guide, Gomez may have a point.
The FCC tried to raise the cap to 45% in 2003. Congress, however, quickly stepped in to stop it. A compromise was reached, with Congress setting the cap at the current 39% into law in 2004. Congress went a step further to say the ownership cap would no longer be part of the FCC’s quadrennial review.
Democratic Sen. Michael Bennet called the FCC’s move “blatantly political.”
“Lifting the 39 percent cap will drive further consolidation of the broadcast news market and deprive local communities of outlets that focus on the issues important to them,” Bennet said in a statement to CPR News. “FCC Chairman Brendan Carr must not be allowed to ignore clear rules that Congress set in statute in favor of an ad hoc review process that opens the door to industry capture and undue political influence.”
Over on the House side, Democratic Rep. Frank Pallone of New Jersey, wrote to Carr earlier this year reminding him the FCC does not have the authority to eliminate the cap.
“The limit on how much of the national television audience any one broadcast station ownership group is allowed to reach is enshrined in law, and therefore cannot be changed without congressional action,” Pallone, who’s the ranking member of the House Energy and Commerce committee wrote in February.
“The actions you are considering are not only unlawful, but they would also lead to unprecedented media consolidation both in local markets and at a national scale, benefiting only the largest station owners. This would all come at the expense of competition, localism, and diversity of voices in broadcasting.”
Denver area Rep. Diana DeGette said it’s “disturbing” that Carr is going around Congress.
She said getting rid of the cap, “would be a death sentence for independent local news in Colorado. It allows out-of-state monopolies to buy up our stations, slash journalism jobs, and replace Colorado stories with nationalized propaganda."
The question of whether the FCC has the authority is being raised on both sides of the aisle.
“I’ve raised serious concerns about their authority to do so,” GOP Sen. Ted Cruz told CPR News. He chairs the Senate Commerce, Science, and Transportation committee, which has oversight over the FCC.
This concern isn’t necessarily shared throughout Congress.
Early this year, GOP Rep. Richard Hudson, who chairs the subcommittee on Communications and Technology for the House Energy & Commerce committee, said at an oversight hearing that the “FCC still has significant work ahead, including modernizing outdated media ownership rules.”
“Current ownership caps prevent broadcasters from combining or expanding operations, constraining their ability to invest in local journalism. Updating these caps would help ensure broadcasters remain viable and competitive without creating monopolies,” Hudson said. “I urge the Commission to keep these realities in mind as it continues its deregulatory agenda.”
He also led a letter last year to Carr, predominantly signed by Republican lawmakers, encouraging the FCC to modernize the ownership rules.
“By modernizing these regulations, the FCC can empower broadcasters to better serve their communities, promote local journalism, and compete in the modern media marketplace. Updating these rules is not just an urgent economic necessity, it is a public service imperative,” the letter stated. Colorado GOP Reps. Gabe Evans, Jeff Crank and Jeff Hurd signed onto the letter.
Still the debate over what authority the FCC does or does not have has not stopped Carr.
The same 2004 law also prohibited the FCC from waiving the cap, something the agency did when approving the Tegna-Nexstar merger, which would allow Nexstar to reach 80% of U.S. households.
It’s currently the subject of an antitrust lawsuit brought by a bipartisan coalition of state attorneys general, including Colorado Attorney General Phil Weiser. If the merger is allowed to go through, it would combine Denver’s KDVR Fox31 and 9News.
Many experts expect 9News would be merged into Fox31, resulting in layoffs, including in the newsroom.
Josh Shepperd, as social professor of media studies, at the University of Colorado, thinks the cap is currently too big and said increasing it or getting rid of it will not help local newsrooms.
“If that happens, we’re looking at corporate capture in smaller markets where there is only one voice,” he explained.
He noted that corporations are focused on profits and sometimes the most profitable thing is beaming in a canned national broadcast.
“It actually is — ironically — a lowering of viewpoint diversity and who will be producing stories and who will have access to produce stories for local audiences,” he said.
