D.C. Circuit Dismisses Challenge to FCC’s Obsolete UHF Discount

WASHINGTON — On Wednesday, the U.S. Court of Appeals for the D.C. Circuit ruled that Free Press and other petitioners seeking to overturn the FCC’s reinstated “UHF discount” had not established their standing in court to sue the agency over this rule change.

Free Press had filed a challenge, alongside Common Cause, Media Alliance, the Media Mobilizing Project, the National Hispanic Media Coalition, Prometheus Radio Project and the United Church of Christ Office of Communication, Inc., against the FCC’s April 2017 decision to reinstate the discount.

The groups, represented in court by the Institute for Public Representation at Georgetown University Law Center, argued that the UHF discount is a technically obsolete rule the FCC restored in defiance of the agency’s central mandate to promote diversity, competition and localism over the public airwaves.

FCC Chairman Ajit Pai promoted the return of the discount, an arcane loophole that allows broadcast-station conglomerates to evade ownership limits by counting just half of their UHF stations’ true audience reach toward the congressionally mandated 39 percent national ownership cap.

The court made its judgment today without considering supplemental filings by Free Press and Prometheus Radio Project showing clear standing in this case.

Free Press Deputy Director and Senior Counsel Jessica J. González made the following statement:

“We’re disappointed that this panel of judges refused to rule on the FCC’s phony math and poor excuses for the obsolete and harmful UHF discount.

“It’s important to remember that this decision does nothing to bless or approve the FCC’s unsupported policy changes and legal claims surrounding the reinstatement of the fossilized UHF loophole. It also offers no opinion on Pai’s proposal to unlawfully raise the national ownership cap in yet another rulemaking proceeding still pending at the agency.

“All today’s ruling suggests is that Free Press and the other petitioners in this case hadn’t shown our standing in our very first submissions to the court. We disagree with that decision. 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 strictly on the merits — or lack thereof — in the agency’s decision. We’re consulting with our fellow petitioners and the lawyers who handled the case to explore what options we might have in court.

“In light of the unexpected good news out of the FCC last week, when it moved to challenge and likely stop the Sinclair-Tribune merger, one of the worst and most immediate abuses of the UHF discount and other FCC mistakes has been averted for the moment. But we need to keep fighting at the FCC, in court and in Congress to promote real diversity, competition and localism in broadcasting.

“Local broadcast television remains the most important local news source for many people, particularly those in low-income and Spanish-speaking communities. The last thing communities need is fewer perspectives — and more nationally produced, cookie-cutter propaganda masquerading as local news. The UHF discount and other Pai policy decisions have opened the door to a wave of unprecedented consolidation that will harm people across the United States who deserve diverse and locally produced broadcast media.”