Reflections on broadcast license challenges, past and present

Posted by Mitchell - August 2, 2023 (entry 753)

Last month, July 2023, saw the filing of a high-profile challenge to an American television over-the-air broadcast license. The Media and Democracy Project filed a Petition to Deny with the Federal Communications Commission against WTXF-TV, the FOX Network affiliate in Philadelphia. The petition says that WTXF broadcast false information related to the 2020 Presidential Election in the United States.

In interest of disclosure, I should say that I knew about this filing before it became widely publicized, and also helped with a bit of the organizing behind it. I'm friends with some of the folks behind the challenge, and wish them well. They have a long slog ahead of them, and the challenge is bound to end in defeat.

I should know. In 2005, I was the named party-of-interest in a TV broadcast license challenge against eight Chicago-area television stations. The nature of our petition, like that for the Philadelphia petition, involved political election coverage -- specifically, that Chicago-area TV stations neglected coverage local elections while over-emphasizing the presidential election of 2004.

Our challenge drew a fair amount of attention, including, to my surprise, some pushback from some folks on the political left in Chicago who felt that the challenge was a waste of time (about which more below). The challenge went through a series of back-and-forth volleys where we submitted a filing, got a rejection from the FCC maybe a year later -- then we resubmitted a new filing, got another rejection back, and repeat no fewer than five times over the course of fourteen years, before we ultimately withdrew the petition in 2019.

I can understand the sentiment that the challenge would be a waste of time and energy -- in fact, we were informed before the challenge was filed by our counsel at the Media Access Project (which actually folded as an entity during our license challenge run) that the petition would have a "100% chance of failure". So why bother? Largely, it served as a great hook for discussion and attention for media issues and to discuss how the media worked -- or, in this case, don't work.

Broadcast licenses can be an enforcement mechanism for negligent broadcasters. The theory goes, if a station isn't living up to a standard to serve the public "interest, convenience, and necessity", the FCC can revoke the license and award it to another party better suited to do so. There are two problems with this approach: One, there's no formal definition or statute to clarify what serving the public "interest, convenience, and necessity" actually means. Two, the FCC grants tremendous latitude to incumbent broadcasters, to the point that petitions to deny are dismissed, outside of exceedingly rare instances. As a result, incumbent broadcasters feel little threat regarding the loss of their broadcast license.

The broadcast license regime in the United States is so entrenched that even the president of the United States faced pushback when publicly suggesting the idea. In October 2017, Donald Trump threatened to revoke the license of NBC over an embarrassing NBC News report. Let's put aside the irony that NBC gave Trump a late-career boost as host of The Apprentice, and the ensuing popularity helped catapult him into the White House. Many commentators pointed out the technicality that the FCC licenses individual stations, not networks, so there's strictly speaking no license for NBC to revoke.

I will say one more thing about this incident. With a single tweet and the flurry of follow-up commentary, Donald Trump raised more awareness about FCC broadcast licenses than probably every action and every challenge in the past thirty years combined. I wasn't able to find the reference online, but I did read that this tweet about broadcast licenses was the most commented-about tweet from Donald Trump in all of 2017.

In any event, the pushback, especially among FCC staff, was immediate, bipartisan, and uniform: It's not happening, and never will happen. That's not to say that broadcast stations and networks aren't invulnerable -- quite the contrary, it's possible that they may be facing their greatest point of vulnerability since the mid-1930s.

The status of broadcast television stations seems to be in serious flux, given the increasing prominence of the internet and media connected with the internet (streaming, YouTube, TikTok, and the like), in addition to current workers' strikes from the Writers Guild of America and the SAG-AFTRA actors' union. In early 2023 when CNBC asked for predictions about the future of television (and presumably by extension the future of broadcast licenses) from various movers and shakers in commercial television, the responses were uniformly muddled -- there was no consensus as to where things would go.

For decades, there was an easy way to determine if broadcast licenses were deemed important: check their value, and check to see if current license holders are keen on holding them or dumping them. Everyone, even opponents, agreed: The values of broadcast licenses continually increased, even greater than the value of inflation. The values, though small in comparsion to the new internet behemoths, are still formidable. There are brokers who can help you buy if you're ever in the market. :-/

What seems to be happening is a kind of morphing of broadcast television to second-banana status, much as television had done to radio in the 1950s and later, so now the internet and internet-connected video is now doing to over-the-air broadcast television. In fact, one analysis posits that broadcast television could realign itself as a cost-effective alternative for generating content, compared to the ungodly sums of money thrown around by the new internet behemoths. But while radio was relegated to some degree of inferiority, it never went away. So too could broadcast television see the same fate. It's rare to see a communications medium disappear entirely -- there seems to be an accretive effect, more and more media continue to pile up.

And unfortunately, another thing that doesn't go away is the dominant profit motive in relation to media. Markets, corporations, capitalism -- trying to dislodge these things also stand a "100% chance of failure" as that of trying to pry a license from an unworthy broadcaster, and the two are not unrelated. Even so, these economic institutions have also been facing increasing challenges to their own efficacy -- from the 2008 subprime mortgage crisis, to Occupy Wall Street, to the (however temporary) change in economic relations during the COVID-19 pandemic. (I'm switching more and more of my activism in recent years in this regard.) Could the Philadelphia license challenge mark a turn of the tide? History and the establishment say no, but we fight on, even when there's a "100% chance of failure", because you never know when a challenge may succeed.

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