Spiwak: FCC Shouldn't Redefine TV Cap Audience Reach
The FCC doesn’t have the authority to alter or waive the national TV ownership cap, and trying to work around that by redefining the term “national audience reach” to approve the Nexstar/Tegna deal would be “fraught with peril,” said the Phoenix Center’s Lawrence Spiwak in a blog post Sunday for the Yale Journal on Regulation. The ownership cap prevents a single TV broadcaster from owning stations with a combined national audience reach of more than 39% of U.S. households. The FCC “would have to engage in some very creative economics to come up with a plausible formula that would allow the major broadcast license owners to merge and still satisfy the 39% cap,” Spiwak wrote.
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Redefining audience reach would also require a rulemaking, which would likely take too long for the merging companies, he said. Waiving the cap would go against clear statutory language and legal precedent, Spiwak added. “The fact that we are even having this debate to permit these mergers is a waste of everybody’s time and scarce FCC (and, should the FCC go through with any waiver, ultimately judicial) resources.”
Spiwak also took aim at arguments that doing away with the cap would empower local broadcasters, calling them “the great policy oxymoron” of the push for broadcast consolidation. “How does increasing concentration on the national level lead to increased localism in individual markets? It is difficult to square that analytical circle.”