D.C. Memo: Free State Foundation Says Loper Bright a Barrier to Lifting 39% TV Cap
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39% Cap: Warning to Nexstar Media Group and the National Association of Broadcasters: If the FCC can’t lift the 39% broadcast TV ownership cap, don’t blame Brendan Carr. Blame a guy named John Roberts. In a filing yesterday, the Free State Foundation strongly suggested that only Congress has the authority to adjust the 39% cap in the wake of the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo. The 6-2 opinion, written by Chief Justice John Roberts, jettisoned the FCC-friendly Chevron Doctrine. “In a post-Chevron appellate environment, however, the best reading of the congressional decision to remove the national television ownership cap from the Commission's quadrennial review of its ownership rules is that it was meant to prevent the agency from modifying (or eliminating altogether) the cap,” said Free State Foundation President Randolph May and Senior Fellow Andrew Long in a filing yesterday with the FCC. In an interview with Policyband in February, Carr said he recognize the new regulatory landscape under Loper Bright. “Are there cases where I think I'm right that I'm going to end up losing under Loper Bright that I might have won under Chevron? There's going to be some of those and that's just the way it goes,” he said. NAB, in its own filing yesterday, said the FCC should abolish the cap. “The record is clear that the Commission has statutory authority to repeal the national TV ownership rule in its entirety,” the trade group said. (More after paywall.)
