By: David Oxenford, Wilkinson Barker Knauer LLP
On August 5, the FCC acted to resolve the proceeding begun a year ago (see our article here) to eliminate the rule that prevented an FM or TV broadcaster from denying space to a competing broadcaster on a broadcast tower that it controls. As expected, that rule was eliminated by an order to become effective when it is published in the Federal Register (as it adopts no new paperwork requirements, review under the Paperwork Reduction Act which so often delays the effective date of FCC actions is not required). This rule was initially adopted 75 years ago and, in the past, it had been seen as a way to ensure that a broadcaster could not, by withholding access to a unique tower site that the existing broadcaster controlled, foreclose a new competing station from coming on the air.
The FCC justified its abolition of the rule by finding that there are many more towers now available to broadcasters than were available when this rule was first adopted, and most of these new towers are owned by companies that do not own broadcast stations and have no incentive to stop a new broadcast station from leasing space on their facilities. Also, the FCC noted that it is not the lack of access to tower space that limits the ability of potential broadcasters to launch new competitive stations in a market, but instead the lack of available spectrum in any community on which to operate a new FM or TV station.
The rule was always very narrow in scope, and thus had never been successfully used. The rule only prohibited the renewal of the license of a radio or TV station that did not provide access to a unique tower site to a potential competitor. The FCC could never force a broadcaster to provide access to a competitor – it could only wait to the next renewal and decide not to renew a station license if the competitor was denied access. Moreover, the competitor had to prove that the site to which it was denied access was unique – that there was no other suitable site from which the competitor could operate. As there were always arguments that some new tower could be built to accommodate the competitor, or some building might exist where its antenna could be mounted, that uniqueness requirement limited the applicability of the rule.
Many years ago, I represented a new broadcaster who had tried to use that rule to gain access to a tower site that appeared to be the only one from which it could launch its new TV station. While in initial orders the FCC declined to order the licensee to make the site available (as its renewal was pending), the complaint based on this rule did eventually result in the new TV station getting access to the tower. But that was a different time, when there were few towers and many more new entrants to the broadcast industry. Now, when towers have become much more plentiful with the explosion of wireless companies that demand tower space, and so few new broadcast stations, the rule appears to have outlived its usefulness. So, as the FCC noted, no broadcaster supported its retention. Now it is one less rule broadcasters have to remember.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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