The debate over the FCC's (Federal Communications Commission) power to adjust the national broadcast ownership cap has shifted from policy arguments to questions of legal jurisdiction, according to the National Association of Broadcasters (NAB). Rick Kaplan, the NAB's chief legal officer and executive vice president of legal and regulatory affairs, addressed the matter in a recent blog post.
Kaplan defended the FCC’s authority to change or remove the cap, which currently prevents television broadcasters from owning stations that reach more than 39% of U.S. households. “We’re now at the predictable moment in a Washington fight when the losing side abandons policy arguments and retreats to the last refuge of the desperate: ‘Well, it doesn’t matter anyway, the agency doesn’t have the authority to do this,'” Kaplan stated.
He suggested that opponents have changed their strategy after failing to win on policy grounds. Kaplan described legal challenges to the FCC’s authority as procedural maneuvers. “Right now, TV broadcasters are uniquely handcuffed by a national ownership cap that blocks them from reaching more than 39% of Americans,” Kaplan wrote. “Never mind the fact that every other broadcast TV competitor—streamers, cable channels, online platforms, Big Tech video services—face no such restrictions.”
Kaplan argued that larger broadcast companies would be better equipped financially to support local programming. “You don’t get more local journalism by forcing broadcasters to stay small and financially constrained,” he wrote. “You get more local news when broadcasters have the scale to afford it.”
Kaplan addressed arguments that the FCC lacks statutory authority to modify the cap. He dismissed this objection as “the administrative-law Hail Mary, thrown only when you know you’re out of real plays.” “The FCC has always maintained, under both Republicans and Democrats, that it has authority over the national cap,” Kaplan wrote.
He cited a 2004 congressional action that modified the cap and exempted it from immediate quadrennial review requirements. “Ending a routine review cycle is not remotely the same thing as banning the FCC from ever touching the rule again,” he wrote. “The statute doesn’t say that. It doesn’t hint at that.”
Kaplan also singled out Newsmax for opposing the cap elimination. “Newsmax isn’t worried about local journalism; it’s worried about competition,” he wrote. “And it fears a stronger broadcast industry because a stronger broadcast industry could lead to additional conservative voices with larger audiences—voices with whom Newsmax would have to actually compete.”
In its July filing, Newsmax, led by Chris Ruddy, expressed concerns about reduced competition and viewpoint diversity. They argued the FCC lacks authority to modify ownership limits without congressional authorization, citing the Supreme Court’s Major Questions Doctrine.
“Although Congress between 1996 and 2004 directed the FCC to review the Horizontal Cap, and explicitly gave the Commission permission to change it, in 2004 Congress unequivocally set the national audience reach limit at 39 percent and removed any authority for the Commission to adjust it,” Newsmax stated in its filing.
The FCC's most recent media ownership review, initiated in 2022, is still pending, and no timeline for action on the ownership cap has been announced.