Concluding that a group of public interest and minority broadcast petitioners had failed to satisfy the court’s stringent requirements for a long-term emergency stay, a three-judge panel of the DC Circuit Court of Appeals decided yesterday to lift an administrative stay of the FCC’s April 20 decision to reinstate the “UHF discount.”
Late last month, Free Press, Common Cause, the Prometheus Radio Project, the Media Mobilizing Project and the National Hispanic Media Coalition had asked the DC Circuit to impose an emergency stay of the June 5 effective date of the FCC’s decision to reinstate the UHF discount, which allows TV stations broadcasting in the UHF spectrum bands to count half of the TV households in their markets when determining compliance with the FCC’s 39% cap on national audience reach. On June 1, the court issued a temporary, administrative stay of the June 5 effective date to give the appellate panel additional time to review documents that were to be submitted by the FCC and the petitioners on June 1 and June 2, respectively. Arguing against an emergency stay, the FCC maintained that its April 20 ruling was justified, as the FCC—in voting to eliminate the UHF discount last August—had erred in repealing the discount without also considering whether the 39% audience cap should be modified. The petitioners reiterated their argument that a refusal of their request for stay would cause “irreparable harm” by unleashing a new wave of broadcast industry consolidation, evidenced, in part, by Sinclair Broadcasting’s recently-announced $3.9 billion acquisition of Tribune Media.
Ultimately, the petitioners’ arguments failed to sway the court, which decided yesterday to allow the UHF discount to take effect while the court continues to consider the petitioners’ underlying appeal of the FCC ruling. Declaring, “we are pleased that the court denied the motion for an emergency stay of a rule that had been in effect for decades,” a Sinclair spokesman said, “we remain confident that the court will conclude on the merits that the UHF discount should remain in place.” While voicing dismay with the court’s ruling, Free Press Policy Counsel Gaurav Laroia told reporters: “[we] still plan to show the unlawful nature of the FCC’s arbitrary and capricious decision under review in this case.”