In a development applauded by the broadcast industry, a three-judge panel of the D.C. Circuit Court of Appeals rejected a challenge to the FCC’s decision in 2017 to reinstate the “UHF discount,” ruling that the public interest group appellants lacked the standing to appeal the FCC order.
The UHF discount—which was repealed by the Tom Wheeler-led FCC in 2016 before being reinstated last year by the Ajit Pai-led Commission—allows licensees of commercial television stations in the UHF bands (Channels 14 through 51) to count half of their potential viewers in every market when calculating their compliance with the FCC’s 39% cap on national television audience reach. Declaring that the UHF discount and the 39% cap are “inextricably linked,” the FCC concluded last year that it had erred in handing down its previous decision to eliminate the UHF discount without “simultaneously considering whether the cap itself should be modified.”
Last December, the FCC launched a rulemaking proceeding to consider whether the 39% cap should be modified and whether the UHF discount should be retained permanently. That proceeding is currently in progress, and it remains to be seen when the FCC will issue its ruling. Meanwhile, petitioners against the 2017 FCC order which include Free Press, the Prometheus Radio Project, Common Cause and the Media Mobilizing Project questioned the FCC’s discretion to reinstate the UHF discount. In a two-page opinion issued Wednesday, however, the court rejected the petitioners’ appeal on grounds that they had failed to establish standing. As it declined to address the merits of the petitioners’ appeal, the court emphasized that “membership organizations may assert standing on behalf of their members, but, in order to do so, they must show that at least one member ‘would otherwise have standing to sue in [his or her] own right.’” Asserting that none of the petitioners had met that criteria, the panel therefore dismissed the appeal without further comment.
As FCC Chairman Pai proclaimed himself “pleased with the court’s decision to reject this challenge to the reinstatement of the UHF discount pending the completion of our comprehensive review of the national ownership cap,” the National Association of Broadcasters declared that Pai “deserves enormous credit for . . . providing an opportunity for local broadcasters to better serve our tens of millions of viewers.” Lamenting, “it’s especially unfortunate that the FCC and the big broadcasters the UHF discount favors chose to put the question of standing in front of the judges, rather than engaging directly on the merits,” a Free Press spokesman confirmed, “we’re consulting with our fellow petitioners and the lawyers who handled this case to explore what options we might have.”