FCC Proposes New Application Prioritization Rule

Posted on January 31st, 2024 by

In a 3-2 vote, with both Republican-appointed Commissioners objecting, the FCC has approved a Notice of Proposed Rulemaking to implement an application prioritization rule based upon applicants certifying that they air certain amounts of local programming.

The FCC’s announced goal with the proposed rule is to incentivize stations to support “local journalism” and provide programming that responds to the needs and interests of the communities they are licensed to serve. Part of the majority’s justification for incentivizing local programming with an application prioritization scheme stemmed from its view that an objective of the FCC’s 2017 decision eliminating the main studio requirement was increasing local programming, which has not occurred. We recall that the primary purpose of that proceeding was to reduce regulatory burdens on broadcasters in a new technological world where a brick and mortar building was no longer necessary.  Nevertheless, the majority criticized the 2017 decision as it proposed application processing priority as a new local programming incentive.

That raises the other interesting aspect of the proposed rule — it might well be unlikely to incentivize local programming at all.  The rule would only apply to “non-routine” or “complex” renewal, assignment and transfer of control applications (though the item asks for whether it should apply to more than those).  A “complex” application with a local programming certification would be prioritized over a “complex” application without one.  The proposal is somewhat vague on what would make an application “non-routine” but things like petitions to deny, or renewal certifications that report rule violations, would certainly add a non-routine aspect to an application.

Most renewal, assignment and transfer of control applications are routine in nature, so certifying to providing local programming – which would be optional to the applicant anyway – does not seem well-designed to accomplish a boost in local programming.  What is clear is that processing of a renewal, assignment or transfer of control application without a local programming certification would only come after routine or “complex” applications that do include a programming certification.  An increase in processing time for those stations choosing not to provide a local programming certification is therefore practically certain. We’ve squinted at this long enough to wonder just how “voluntary” the certification really is in the end, and it is worrisome to have no indication of how long it might take to process these important types of applications.

The NPRM asks several questions about how to define local programming, which opens up another pandora’s box of issues.  Also up for decision is how much local programming would have to be aired before a certification can be made.  We certainly see slippery slopes and careful rule interpretations as a trademark of any adopted application processing rule.

The dissenting Republican-appointed Commissioners each noted that the NPRM seems like more of an attack on the 2017 main studio rule elimination, or an oblique attempt to reinstate some part of the rule.  After you peruse the NPRM, you might want to see what Commissioners Carr and Simington had to say.

Comment deadlines will follow publication of the NPRM in the Federal Register.