In 2004, Congress delivered what seemed to be an unmistakable message about ownership limits in the TV broadcasting industry. It ordered the Federal Communications Commission to institute a new cap: No company could own stations that collectively broadcast into more than 39% of U.S. homes.
So why hasn't the FCC summarily rejected Sinclair Broadcast Group's proposed purchase of Tribune Media, which would allow Sinclair-owned stations to beam their programs to more than 70% of U.S. TV viewers? Because by the deliberately skewed calculations of the FCC's current Republican majority, those stations' broadcasts don't reach the households they really do reach.
Media mergers are routinely opposed by consumer groups concerned about the consolidation of power among a relatively small number of giant Hollywood studios and communications companies. This deal has drawn extra fire from left-of-center critics because Sinclair's owners have used their stations to advance their own (conservative) agenda — for example, by requiring local broadcasters to run political commentaries by a former aide to President Trump and promotions that echo Trump's "fake news" attacks on the media.
But Sinclair's political leanings are not the problem here. The real issue is whether any company — regardless of its politics — should be able to amass control over so much of the public airwaves.
For more than 80 years, Congress has offered broadcasters an incredibly sweet deal: They could obtain the exclusive rights to a slice of prime airwaves in exchange for operating in the public interest. Lawmakers left it to the FCC to define what that meant, and the definition has changed over time. Still, from the early days of TV, a key element has been offering programming of local interest. That local focus informs the TV ownership limits, which also promote diversity in programming and viewpoints.
After initially capping the number of stations a company could own, Congress shifted to capping the percentage of Americans that a company's TV stations could reach. But during the analog TV era, stations using Channel 14 and higher — those in the UHF band — had a more limited range than those on or below Channel 13 — the VHF band. So in 1985, the FCC declared that UHF stations would receive a "discount": Their signals would be deemed to reach only half the viewers in their market.
That discount should have been phased out by 2009, once broadcasters had completely shifted to digital transmissions that are just as far-reaching in UHF as in VHF. Instead, the commission didn't eliminate the UHF discount until September 2016, after a lengthy rule-making process.
The repeal, which prohibited any further mergers and acquisitions that would circumvent the 39% cap, was a much needed corrective. But shortly after Republicans took over the commission in 2017, they restored the UHF discount — even as they were tossing out other regulations right and left. Less than three weeks later, Sinclair — the largest broadcast group, owning or operating more than 170 stations in 81 markets — announced its $3.9 billion purchase of Tribune, which owns or operates 42 stations in 33 markets.
The transaction won't go through unless the Justice Department's antitrust division signs off on it and the FCC agrees to transfer the licenses held by Tribune's stations to Sinclair. To bring itself down to the 39% cap with the UHF discount, Sinclair has said it would sell stations in San Diego, New York City and Chicago. But it also plans to continue to operate the New York and Chicago stations after the sale, while maintaining an option to buy the stations back. So much for diversity and localism.
Top Republicans on the commission concede that the discount is technically indefensible. They decided to restore it, however, on the argument that it cannot be changed without altering the 39% cap. The commission is now formally exploring whether it has the authority to change the cap, despite Congress' instructions in 2004 not to do so. Rather than let Sinclair own stations reaching almost three-quarters of the U.S. audience, the commission needs to close the door it opened and respect the law as it was written.