Public Interest Groups Get in Last Word Before Expected UHF Discount Stay Ruling
Restoration of the UHF ownership cap discount would be cause irreparable harm because the FCC almost never denies transactions or later requires their unwinding, said a combined reply (Pacer) from public interest groups seeking a stay of the discount’s return.…
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The U.S. Court of Appeals for the D.C. Circuit issued an administrative stay of the discount’s restoration (see 1706020058) and is expected to rule on the actual merits of the stay after receiving the groups’ filing. The precise timing of that ruling isn’t clear, attorneys told us. Though Sinclair and other opponents of the stay said restoring the discount isn’t irreparable because the deals it makes possible could be denied or walked back later, Common Cause, Free Press and the other groups said in practice either move would be rare. “They cannot point to a single example of such disapproval in this century,” the groups said of the broadcasters. “Similarly, their suggestion that if the Court were to reverse the Commission, the Commission might require divestiture of stations acquired during the pendency of this litigation also flies in the face of the reality that no mandated television divestiture has been effectuated in decades.” The groups used similar logic to attack the FCC argument for restoring the discount, that it would be reconsidered alongside the national ownership cap later this year. Two sitting commissioners have said the agency lacks authority to change the cap, the groups said. The rulemaking is arbitrary because it's conditioned “on the mere possibility that the Commission will, in the future, open a proceeding to consider something that, as of now, a majority of the Commission believes it cannot or should not do,” the filing said. Without the stay, “the nation’s television ownership structure will be significantly and irreparably altered well before this Court will have time to reach a determination on the merits,” the groups said. “Granting a stay would maintain the status quo pending judicial review, would not harm broadcasters.”