Free Press, others urge court to stay return of the FCC’s UHF discount

FCC headquarters
FCC headquarters.

A group of petitioners is asking for an emergency stay of the FCC’s planned reinstatement of the UHF discount for TV broadcasters.

The Institute for Public Representation filed an emergency motion on behalf of Free Press, Media Mobilizing Project, Prometheus Radio Project, National Hispanic Media Coalition and Common Cause. Over the weekend, a motions panel of the DC Circuit issued an order directing the FCC to file a response by 10:00 a.m. on June 1.

The DC court’s response comes after the groups earlier this month filed with the FCC, asking the commission to block the return of the UHF discount, which allows broadcasters to count UHF stations as 50% toward the national ownership cap.

The groups argued that the technical logic for the UHF discount is no longer valid.

“It is arbitrary and capricious to adopt a provision that lacks any independent technical or policy support, and which contravenes the statutory limit on national television ownership,” the groups wrote in the filing.

The groups also argued that news of the reinstatement is effectively triggering a new wave of broadcast industry M&A and allowing deals like Sinclair’s $3.9 billion bid for Tribune to move forward. The groups also said that a stay will benefit the public interest by maintaining more diversity in broadcasting.

RELATED: FCC reinstates UHF discount, likely opening broadcast TV M&A floodgates

In April, the FCC voted to reinstate the UHF discount after the previous commission had discontinued the rule in 2016.

The commission determined that last year’s action had the “effect of substantially tightening the national cap for companies without any analysis of whether this tightening was warranted given current marketplace conditions.” With today’s vote, the FCC will return to the “pre-August 2016 status quo in the marketplace” for broadcasters.

Later this year, the FCC pledges to take a more holistic approach to re-examining both the UHF discount and the 39% ownership cap placed on broadcasters. Back under the rules of the discount, broadcasters using UHF spectrum are allowed to count 50% of television households in their market when gauging compliance with the national cap.

Opponents to the rule being reinstated argued that doing so would cause irreparable harm to consumers.

“Fewer than 10% of broadcast licenses are held by people of color at a time when over a third of Americans are people of color. That doesn’t happen by accident, that happens when policymakers bend the rules for media conglomerates to continue to amass greater power over what we see and hear,” said Carmen Scurato, director of policy and legal affairs for the National Hispanic Media Coalition, in a statement. "Our last resort is accountability and the FCC today has again chipped away at broadcast requirements that would give the public any glimpse at why platforms owned by women and people of color are disappearing. The FCC must find more ways for the public to access timely data and analysis on media diversity with a meaningful opportunity to weigh in on these distressing changes.”