Between the holidays, and to minimal fanfare, the FCC released a decision in the 2018 Quadrennial Review of Media Ownership policy. The timing of the release was no surprise, as the agency had been ordered by the D.C. Circuit Court of Appeals to conclude the proceeding by December 27^th.

The FCC’s decision, which made only minor changes to the existing media ownership rules, is the latest dating back to Section 202(h) mandate from the 1996 Telecommunications Act to periodically review U.E. media ownership rules. The agency has struggled to meet this obligation, most recently by having the 2018 and 2022 Quadrennial review processes open at the same time.

Not doing much on media ownership policy has been the agency’s primary course of action since Congress set new limits on station ownership for the FCC. Those limits, which the FCC has decided again not to modify, if you’re old enough to remember were the ones that led to rampant consolidation of media especially on the radio side, like Clear Channel (now Iheartradio) which once owned more than 1300 radio stations.

In the first review in 1998, the agency chose to do nothing because the consolidation craze was still in progress, one I had a front row seat for working as a talk radio producer for Clear Channel. In 2000, the agency decided to “review itself” rather than make substantial changes to the rules. But things got interesting in June of 2003, when the FCC proposed the Diversity Index while burying evidence that its media ownership policy was actually counterproductive. 

The challenge to the 2003 decision, brought by a collection of citizen petitioners led by the Prometheus Radio Project, was the first of four legal defeats as the FCC’s ownership decisions were sent back to the agency in 2004, 2011, 2016 and 2017 by the Third Circuit Court of Appeals.

At the heart of these regulatory setbacks was the FCC’s inability or unwillingness (depending on when we’re talking about) to develop a coherent ownership policy that expanded ownership by minorities. During the Third Circuit’s four reviews, the court failed the agency for inaccurate statistics and even accused the FCC of “largely punting” on the minority ownership issue.

After the decision in Prometheus IV, the Supreme Court became involved in what had become a bitter three-way dispute between the FCC, the citizen petitioners and the National Association of Broadcasters (NAB). After hearing oral arguments on the last day of Ajit Pai’s led FCC over the agency’s 2017 Incubator “minority ownership” program (that didn’t include any provisions to increase minority ownership) and some associated rule changes released in 2018, the decision in “Prometheus V” granted the agency additional some additional deference on media ownership policy.  

Despite the win, the FCC has largely operated using the traditional spin its wheels approach to media ownership and industry consolidation. The Incubator minority ownership policy, that is strangely not about minorities, hasn’t had a single successful applicant, and the agency reopened the 2018 proceeding to more comments, resulting in the NAB going to court to force this release of this most recent decision.

To the FCC’s credit, the agency’s latest order does not permit any radical new consolidation of the kind the media industry and the NAB was looking for, at least not yet. But the failure to even change any of the existing rules almost guarantees the FCC heads back to court, and if the last five rounds of this legal and policy battle are any indication, it will be a lengthy judicial process.

Kicking the can down the road has been how the agency has been handling the entire issue for almost 30 years now, so that’s not going to be a shock to anyone who has been paying attention. 

Localism and diversity, two objectives of media ownership policy, have suffered while women and minorities control insignificant numbers of commercial broadcast stations. Consolidated radio companies have become increasingly reliant on syndicated programming in order to cut production costs. And although radio is old tech, talk radio is delivering content to five to ten times the primetime Fox News audience every day. Broadcasting is still important, and diverse ownership still matters.

Right or wrong, the Rosenworcel led FCC has been largely focused on digital divide and broadband issues. The agency will spend a solid chunk of its 2024 fighting to (re)implement Title II and Net Neutrality provisions to ISPs. While these are important issues, the FCC needs to find the bandwidth (pun intended) to deal with media ownership policy before concluding the (already open) 2022 Quadrennial process.

Christopher Terry is an Associate Professor of Media Law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota. A former radio producer, his research on media and minority ownership was cited in filings in Prometheus Radio Project v. FCC and his rulemaking comments were cited by the agency in the December 27^th order.

One year ago today, the Supreme Court handed down a decision in FCC v. Prometheus Radio Project. The decision provided a reset to a seventeen year long legal dispute over the FCC’s media ownership rules that had its inception in the Third Circuit in 2004.

In 1996, the Telecommunications Act included substantial revisions to the FCC’s ownership rules for broadcast stations. These changes led to a massive round of consolidation, especially in radio, giving rise to massive radio companies like Clear Channel and Cumulus.

Included in the Telecommunications Act was an ongoing requirement that the agency periodically review its ownership rules. This requirement was initially on a two-year (biennial) cycle that was later expanded to a four-year (quadrennial) review. As part of this mandate the FCC reviewed ownership in 1998 and in 2000 but took almost no action as the broadcast industry was still going through a substantial upheaval caused by rapid consolidation in radio.

Then, after conducting the 2002 Biennial review, the agency released a new set of ownership guidelines called the Diversity Index in 2003. Several legal challenges were filed to the FCC’s actions, and those challenges were consolidated into Prometheus Radio Project v. FCC, heard by the Third Circuit, which released its decision in June of 2004.

The decision, and the three that followed in 2011, 2016 and 2019, were harsh rebuttals of the FCC’s decision-making and represented a substantial set-back for the agency. The criticisms of the agency’s processes were focused on two major issues. First, the FCC did not, and would not, consider the effect of the rules changes on station ownership by minorities and women, and second, the FCC was unable (and largely unwilling) to generate empirical evidence that the changes the agency was trying to implement were having the desired effects.

I’ve discussed this sequence of events in research in the Federal Communications Law Journal here and here, as well as in the Hastings Communications and Entertainment Law Journal, and in a series of podcasts with the folks at Radio Survivor.

With just one day remaining in the Trump administration, and his chairmanship of the FCC, Ajit Pai’s agency and the National Association of Broadcasters (NAB) argued in front of the Supreme Court that they should be freed from the ongoing (and still unanswered) remands from the 3^rd Circuit Court of Appeals. Release from the ongoing remand cycle was an important part of the petition made to the court, and to be fair, was argued for very eloquently by NAB Counsel Helgi Walker during oral arguments.

The decision, written by Justice Kavanaugh was narrow, but provided the relief that the industry and the FCC were seeking, primarily by focusing on the agency’s most recent action on media ownership from 2017 to the exclusion of the events of the other 13 years of the lengthy dispute. However, there was a lingering, and unresolved issue left on the table by the court’s opinion: Notably: how to handle the 2018 Quadrennial Review Process.

While the conflict over the FCC’s 2016 and 2017 decisions were pending in the Third Circuit, the agency launched, on the last possible day to do so, the 2018 Quadrennial Review, but functionally took no further action in the matter. Now, in early 2022, without a full Commission, the agency faces an unfinished review from 2018 and another review of its ownership rules mandated by the Telecommunications Act to be launched this year.

It bears mention, even as we celebrate another year without action by the agency… even in light of the Supreme Court’s decision, that the agency could have acted at multiple points itself to break the deadlock, but it chose not to. The agency did not complete the 2010 Quadrennial review, rolling it right into the 2014 review, and then not acting until ordered by the Third Circuit to do so in April of 2016.

Then, after releasing an order in response to the Third Circuit in August of 2016 that made no significant changes to the existing rules, in 2017 the agency, now led by Ajit Pai, issued a new set of ownership rules, based on the same administrative record, that fundamentally altered several of the existing regulations, and then even after a loss in court in 2019, decided to continue pursuing legal remedies rather than complete the open 2018 proceeding.

So, in the end, as the agency has squandered another year, we should remember that the FCC is doing so in a way that is basically a trifecta of policy failure. The Commission is making the broadcast industry miserable by not updating the rules, while not developing functional policies to promote diverse ownership by women and minorities. Then there’s that small detail where the existing rules are still allowing local stations to get swallowed up by conglomerates, often removing the important local aspects to their news and informational content and thus hurting local audiences. 

But hey, I mean, what’s another year between friends, right?

Christopher Terry is an assistant professor of media law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota and a research fellow for the Center for Quantum Networks.

Today is the 12th anniversary of the release FCC’s National Broadband Plan (NBP).

In March of 2010, the FCC responded to Congress’s direction to develop a plan for broadband with the intent to ensure every American has “access to broadband capability.” This proposal was assembled with input across 36 public workshops, 31 public notices, 9 public hearings, and approximately 23,000 comments from more than 700 parties.

The NBP was ambitious, and first among its six stated objectives was the metric that, “at least 100 million U.S. homes should have affordable access to actual download speeds of at least 100 megabits per second and actual upload speeds of at least 50 megabits per second.”

As I have written about previously, both on day 3500 and again on day 3900 of the plan, the agency’s objectives for broadband deployment remain unfilled to this day. In fact, it is arguable that the FCC has been unable to achieve any of the stated objectives during the 4383 days since the plan was launched.

The Biden administration recently suggested some may not be achieved until 2030. You don’t take my word for it, in a process scheduled to run until September, the FCC celebrated the anniversary of the NBP last year by getting “A Running Start on New Broadband Maps.” 12 years later and the agency still lacks accurate data on broadband availability. Yes, really.

There are a range of theories about why the National Broadband Plan has been such a colossal policy disaster. Some of these theories involve the back and forth in ideology of the commission across three presidential administrations. Others have suggested the plan was far too ambitious to be successful. There’s also the traditional criticism of the FCC using the “capture thesis” that the FCC is too cozy with the cable companies and ISP’s it is charged with regulating.

I offer an alternative theory. The FCC’s loss of the initial net neutrality case, Comcast v. FCC derailed the implementation of the National Broadband Plan just 21 days after it was released. In the immediate aftermath of the Comcast decision, the FCC spent months trying to find a new “third way” to way to assert regulatory authority to the internet. But again, you don’t have to take my word for it, this “hostage video” from then Chairman Julius Genachowski speaks even louder than the opinion of the FCC’s General Counsel at the time.

As the FCC struggled to recover from the loss in Comcast, its “third way” approach would lead to another jurisdictional loss in Verizon v. FCC in 2014. By the time the FCC made the choice to apply Title II regulation in 2015, the mandates of the FCC’s National Broadband Plan were lost to the five years of the fight over the agency’s authority. The lengthy dispute derailed any significant effort by the FCC to implement the plan in way to make its goals achievable, a reality that continues today.

With the nomination of Gigi Sohn stalled in the Senate, and lacking accurate data on the local availability of broadband, the FCC is now trying to accelerate the process for developing a new map ahead of spending the $46 billion allocated for broadband in the Bipartisan Infrastructure Bill.

Notably, having accurate information on where to spend these funds becomes critically important, as the FCC’s use of grants to supplement commercial broadband infrastructure remains an expensive proposition, with cost per connections running as high as $3631 each. With the data collection scheduled to be completed in September, even if this map is better than its predecessors, we’re still many months out from meaningful action to reach metrics on objectives, including universal access, that were intended to be achieved by March of 2020.

So, for now, Happy Anniversary. I will see you again next year.

Christopher Terry is an assistant professor of media law in the Hubbard School of Journalism and Mass Communication at the University of Minnesota and a research fellow for the Center for Quantum Networks.

November 18^th, 2020 marked 3900 days since the Federal Communications Commission launched its heavily-hyped “National Broadband Plan.” 400 days ago, I penned an op-ed for the Benton Foundation which assessed how the FCC had been unable to achieve any of the benchmarks or meet any of the six stated goals of the plan. You probably won’t be surprised to hear that another year didn’t fix very much of the shortcomings I identified then.

Nominally, the U.S. National Broadband Plan was designed to run for 10 years. The mandates expired, unfulfilled, back in mid-March, just as the Covid-19 Pandemic was beginning. Now, eight months later, concerns over the digital divide have only grown louder, while the FCC commissioners crow about statistics on broadband deployment and hand out additional subsidies for telehealth.

While the National Broadband’s Plan included a goal for universal access, (Goal 3: “Every American should have affordable access to robust broadband service, and the means and skills to subscribe if they so choose.”) the FCC employs creative math to cover up the fact that 10 years of broadband policy has been a colossal failure.

As 2020 has unfolded, the agency continues to tout anecdotal successes in broadband “growth” using measurements of the subsidies being handed out to connect homes left behind by the FCC’s economic centric theories of regulatory implementation. Just over a month ago, Commissioner Carr went on the road to tout a subsidy for rural broadband in Pennsylvania to the tune of $690 Million dollars:

While anything that actually solves the gaps in broadband coverage that have resulted from the FCC’s negligent policy approach over the last decade is good, and even setting aside the potentially partisan electoral implications of handing out this subsidy in a critical battleground state just weeks before the Presidential election, the lack of scrutiny given to these routine subsidy announcements can be found in the cost. In this recent example, $690 Million to hook up 190 thousand new customers breaks down to a real bargain, at a mere cost of $3631 per household.

At that inflated price point, a subsidy to connect the roughly 125 Million homes in the country to broadband would have cost a bit North of $4.5 trillion.

Yet, even in the face of these targeted subsidies, we continue to see a large gap in access to broadband in many places in the U.S. Despite the fact the FCC adopted a slower broadband speed definition of 25 Mbps downstream, 3 Mbps upstream, when it was clear the 100 Mbps downstream, 50 Mbps upstream target for 100 Million Homes in the National Broadband Plan could not be met. So not only has the FCC missed it targets for access, it even had to reduce what counted as access to get to the numbers it is now routinely writing press releases about.

To be fair, the FCC is correct when it says that the fact that only 14.5 Million people remain without access to broadband is an improvement (though third party organizations estimate this is a massive underestimate), but that’s like a football team who is being shut-out while down by four touchdowns late in the game takes time to celebrate that meaningless field goal they just kicked. It is an improvement, sure, but nowhere close to getting the job done, and frankly on broadband deployment we should be well past the end of the game.

While we can debate metrics when assessing successes and failures of the FCC’s policymaking, the events of the last eight months have put a spotlight on how important the FCC’s failure to achieve its goals has been. As millions of Americans were forced to go virtual for work and school the clear requirement for affordable universal broadband access has never been clearer.

Gaps in coverage and the cost of broadband have put kids in parking lots outside of fast food places so they can do their school work on open Wi-Fi because the availability of broadband in an area does not guarantee one’s actually ability to access it. Broadband is expensive, and even in the areas where broadband is widely available, people suffering the economic strains of the last eight months may not have the resources to have broadband at home. So, at the same time we’re handing out hundreds of millions of dollars in subsidies to cover up a problem that was supposed to be fixed already, we’re leaving even more people on the wrong side of the digital divide. Unfortunately, the current leadership of the FCC seems more interested in trying to invent ways to regulate internet speech that they object to.

With the indications that COVID-19 is going to be sticking around like an unwanted houseguest, the new incoming leadership at the FCC has to redouble the efforts to cover the gaps in the broadband maps. Universal access to broadband was not an unreasonable goal, and the FCC has had more than 10 years to make it happen. Kids on the wrong side of the divide have found ways to get their homework in on time, maybe we should hold the FCC to the same standard?

Christopher Terry spent 15 years as a producer in broadcast radio and six years as a lecturer at the University of Wisconsin-Milwaukee before becoming an assistant professor of Media Law at the University of Minnesota’s Hubbard School of Journalism and Mass Communication. His research includes policy, regulatory and legal analysis of media ownership, media content and political advertising.