DC Court Is Hearing Challenge to FCC UHF Discount Decision

The US Court of Appeals for the DC Circuit April 20 is hearing oral argument in the Free Press v. Federal Communications Commission challenge to the FCC's reinstatement of the UHF discount. A politically divided FCC under Chairman Ajit Pai voted back in April 2017 to reverse the previous Democratic majority's decision to eliminate the discount. That discount meant TV station group owners only had to count half of the audience to their UHF stations towards the 39% national audience reach cap. It dated from the days of analog TV when UHFs were weaker than VHFs, and its restoration paved the way for Sinclair to try and buy the Tribune stations.

A  coalition of nonprofit media consolidation critics including Free Press, Common Cause, the National Hispanic Media Coalition and Prometheus Radio Project, laid out the case to the D.C. appeals court in their opening brief last September for why the decision to reinstate the discount was arbitrary and capricious and not in the public interest. The coalition argues the decision violates the Administrative Procedure Act—because it is premised on a move—reconsidering the 39% cap—that the FCC does not have the authority to make because the 39% figure was established by Congress. The FCC responded in its brief that it was reasonable to reinstate the UHF discount immediately while it considers adjusting the national audience reach cap, that it has the authority to adjust that cap, and that the discount and the cap have to be considered together because the UHF discount is meaningless except in relation to the cap.