David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

Kentucky Senator Rand Paul has introduced a bill to repeal all broadcast ownership limitations including the radio and television local ownership rules (see the draft bill, the Local News and Broadcast Media Preservation Act, here, and the Senator’s press release, here).  As we have noted before (see, for instance, our article here), the FCC is currently considering changes to the radio ownership rules but the proposals, first advanced in late 2018, remain stalled in the current FCC seemingly because of its current political deadlock with two Republicans and two Democrats.  The current pending proposal at the FCC (see our summary here) is also considering allowing combinations of two of the top 4 TV stations in a market based on certain defined parameters (such combinations being allowed now only when justified based on an ill-defined case by case public interest analysis).  The Paul legislation would essentially pre-empt this review by abolishing the FCC’s ownership rules.  Of course, being introduced so late in the Congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress.

The Paul legislation is designed to allow broadcasters to compete with big tech companies that have seriously eroded the advertising and audience shares of broadcast stations over the last decade (see our article here).  According to Paul’s press release, his bill “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.”  As the broadcast media is the only media subject to such ownership restrictions, many have argued that, for a truly level playing field in today’s media landscape, a significant relaxation of the rules is warranted.

The bill goes further, preventing the Department of Justice and other antitrust authorities in any review of a broadcast merger or acquisition, from considering broadcasting to be a unique market.  This has long been a concern that the DOJ has looked at broadcasting as being unique and a different market from the broader media market that includes many other diverse players including, most significantly, the big tech platforms (see our articles here and here).  This bill would recognize that tech companies provide many of the same services as broadcasters and are increasingly becoming competitors with broadcasters, by requiring that broadcast mergers be assessed in the broader media marketplace, rather than in isolation by looking solely at broadcasting as a stand-alone market that is immune from broader marketplace competition.

Finally, the bill would allow broadcasters and other “news content creators” to jointly negotiate with big tech companies over the use of their material by these companies.  This provision is similar to the provisions of the Journalism Competition and Preservation Act (see our articles here and here) that recently stalled in Congress over issues as to whether censorship and content moderation by tech platforms should be considered in the context of the bill.  We will discuss the status of the JCPA in a separate article in the near future.  The Paul bill is a very simplified version of the JCPA draft that was recently considered by a Senate committee.

Given the timing, this bill likely will not move in the current Congress, but it does put the issues on the table for consideration in the future.  Watch for these debates to continue in the coming years.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.