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Scalia Legal Scholar: FCC Has ‘No Authority’ to Lift…
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| Scalia Legal Scholar: FCC Has ‘No Authority’ to Lift TV Ownership CapIn a sharply worded legal opinion filed Monday with the Federal Communications Commission, respected conservative legal scholar Brian T. Fitzpatrick declared that the FCC has no lawful authority to alter the nation’s television ownership cap — a limit set directly by Congress at 39%.Fitzpatrick’s ex parte filing indicates that any attempt by the Commission to raise the cap, resurrect mechanisms like the UHF discount, or approve mergers that would exceed the limit — including the proposed Nexstar acquisition of Tegna — would violate existing federal law.Fitzpatrick, the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School, is one of the nation’s most prominent textualist legal scholars.A former law clerk to the late Justice Antonin Scalia, Fitzpatrick’s views are expected to carry substantial weight among Congressional Republicans, courts, and future judicial challenges.His opinion, submitted as an ex parte filing in FCC Docket for the National Television Multiple Ownership Rule, takes aim at growing speculation that the FCC may revisit ownership limits or approve the broadcast Nexstar-Tegna merger that would push national reach above Congress’ ceiling.The FCC under President Ronald Reagan first started the cap in the 1980s as a way to limit the power of big TV networks.At the time, the FCC limited any network like ABC, CBS, or NBC from directly owning stations that reached more than 25% of the U.S. TV marketplace. Over time, the cap was increased, and stands at 39% today, as set by law.But FCC Chair Brendan Carr, bowing to TV industry pressure, has begun a commission procedure to review the existing rule as part of a plan to do away with the cap or dramatically increase it.Carr has argued that TV broadcasters need to compete with Big Tech power and consolidation.”The answer to Big Tech consolidation is not to give left-wing TV broadcasters massive consolidation and power too,” Christopher Ruddy, CEO of Newsmax, said. “We don’t need anti-Trump media controlling everything.”Ruddy noted that almost the entire TV broadcasting industry opposed President Donald Trump’s reelection.”It shocks me President Trump’s FCC chairman has made his main priority giving the TV broadcasters more power and control, especially over local news,” Ruddy said.Newsmax has opposed changes to the national cap and says the change would put local TV news into the control of a handful of players, giving them control of most local news in the nation.Several studies show Americans get almost all their local news from TV broadcasters, despite the rise of digital media.The FCC’s move is opposed by other conservative groups, including CPAC and OAN, a Trump-friendly cable network.Fitzpatrick’s argument is rooted firmly in statutory history.Before 1996, the FCC maintained broad discretion to set its own ownership caps.But the Telecommunications Act of 1996 — and especially the 2004 amendments — changed that, he says.”The Commission is contemplating doing something that would be anathema to textualism: lifting the 39% cap despite a clear textual command from Congress otherwise,” Fitzpatrick wrote.He notes that Congress first increased the cap from 25% to 35% in 1996 and instructed the FCC to periodically review whether it should go higher.But in 2004, Congress reversed course, lowering the limit to 39% and eliminating the cap from future quadrennial reviews.Congress also mandated that any broadcaster exceeding the cap must divest within two years, except in cases of population growth.According to Fitzpatrick, this change left the FCC with no discretion whatsoever over the ownership cap.”We are still living under the 2004 regime. As such, the Commission is foreclosed from considering whether Congress’ 39% cap should be higher.”Much of Fitzpatrick’s filing attacks what he calls “back-door mechanisms” the FCC has historically used to reshape ownership limits — particularly the UHF discount, which allows broadcasters to count UHF stations as reaching only half their actual audience.”The Commission cannot indirectly rewrite the national ownership cap through manipulations of audience-reach calculations,” he wrote.He argues that reinstating or modifying the UHF discount — or approving sidecar deals or shared-services agreements that effectively expand ownership — would violate Congress’ binding 39% limit.Citing judicial precedent, Fitzpatrick notes that courts have already recognized that altering the discount effectively alters the cap itself.”Agencies are subordinate to Congress, not the other way around,” he wrote.Fitzpatrick’s opinion has immediate consequences for the television industry.The FCC is currently reviewing the proposed Nexstar–Tegna merger, which would create the nation’s largest broadcaster if approved, with an expected reach of more than 80% of U.S. homes.Analysts agree that the merged entity would exceed the 39% limit unless the FCC reinstates the UHF discount or approves sidecar arrangements — exactly the actions Fitzpatrick says would violate federal law.Fitzpatrick notes that the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which overturned Chevron deference, has narrowed agency interpretive authority.Without Chevron, the courts no longer defer to agencies on ambiguous statutes — making it far more difficult for the FCC to argue it retains implicit authority to change the cap.Fitzpatrick acknowledges that “there may or may not be good policy reasons for lifting the ownership cap.”Noting he is not a policy expert, Fitzpatrick writes, “But I am a scholar of law, and I know that even the best policy reasons cannot override textual commands from Congress. Statutes should be changed by the democratic process . . .”In closing, Fitzpatrick warns the FCC should “not repeat the freewheeling, law-by-administrative-fiat approach of the Obama Administration.”He urged the Commission to ask Congress to make the change because “that’s what it means to live in a democracy rather than in a bureaucracy.”Important: Let your Congressman and Senator know you oppose massive TV broadcast reach and consolidation, that you oppose lifting the TV ownership caps! Call U.S. Capitol switchboard at 202-224-3121.Also call offices of Speaker Mike Johnson and Senate Leader John Thune you oppose Brendan Carr’s FCC plan to end the TV ownership cap! |
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