Thayer: FCC Has Authority to Alter National TV Cap
The FCC has the authority to lift or eliminate the national ownership cap, wrote Digital Progress Institute President Joel Thayer in a blog post Wednesday for the Yale Journal on Regulation. The Phoenix Center’s Lawrence Spiwak made the opposite argument in a post on the same site Sunday (see 2601060049).
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Language in the 1996 Communications Act instructing the FCC to set the cap at 35% of nationwide households and in 2004 adjusting it to 39% doesn’t mean that Congress intended “to freeze it in place indefinitely,” Thayer wrote. “After all, Congress did not adopt a cap but instead directed the FCC to ‘modify its rules.’ And when Congress intended to cap ownership of a particular medium without allowing later FCC modification, it has done so explicitly.”
Thayer also noted that the U.S. Court of Appeals for the D.C. Circuit has previously ruled that the statute doesn’t enshrine a particular cap. Congress’ removal of the national cap from the FCC’s quadrennial review process doesn’t equate to barring agency action on the cap, he added. The FCC “has clear authority” to modify the cap if it believes doing so is in the public interest. Thayer pointed to the 5th Circuit’s ruling in May striking down the FCC’s broadcaster workforce diversity data requirements as affirming the agency's “broad authority” to take actions in the public interest. In that decision (see 2505190044), the 5th Circuit said the commission's broad public interest authority “must be linked ‘to a distinct grant of authority’ contained in its statutes.”