D.C. Memo: FCC Could Try to Bypass 39% TV Cap By Redefining 'National Audience Reach,' Analyst Says
Phoenix Center’s Lawrence Spiwak Called Such a Move a Regulatory ‘Hail Mary’ to Approve Nexstar-TEGNA Transaction
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39% Cap: Is there a previously undiscovered loophole in the 39% cap, the FCC rule that stands in the way of the Nexstar-TEGNA merger? Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, thinks he’s found one, though he’s suspicious it can work. “If FCC Chairman Brendan Carr ultimately decides to adopt a ‘damn the torpedoes’ approach to force [Nexstar-TEGNA] across the finish line (so far he has kept his cards close to his vest), there might be some regulatory ‘Hail Mary’ to avoid the cap: the FCC could seek to redefine the term ‘national audience reach,’” Spiwak said in a Jan. 4 article in the Yale Journal on Regulation. But Spiwak thinks the FCC would be on shaky ground. “To begin, the FCC cannot simply redefine ‘national audience reach’ on a whim,” he said. “Compounding the problem, the FCC would have to engage in some very creative economics to come up with a plausible formula that would allow the major broadcast license owners to merge and still satisfy the 39% cap.” (More after paywall.)
