For several years FCC Commissioner, and now chairman, Brendan Carr has aligned himself with the deregulatory policies of President Donald Trump. Indeed, then Commissioner Carr was the author of a chapter of the Heritage Foundation “Project 2025” where he detailed areas where the FCC needs to “change course” and “bring new urgency to achieving four main goals: Reining in Big Tech; Promoting national security; Unleashing economic prosperity; and Ensuring FCC accountability and good governance.”
Under Chairman Carr’s leadership, the FCC recently released a Public Notice entitled “IN RE: DELETE, DELETE, DELETE,” which is “seeking public input on identifying FCC Rules for the purpose of alleviating unnecessary regulatory burdens.” This notice brings the recent executive orders and DOGE efforts to reduce government regulation home to the communications industries.
The notice invites comment on “deregulatory initiatives” the commission can take to eliminate or modify its rules. It encourages commenters to consider the policy factors, set forth below, while also inviting “more general comment on rules that should be considered for elimination on other grounds.”
Carr has emphasized that the agency seeks to identify regulations that hinder innovation, create entry barriers, or impose costs that outweigh their benefits. It also seeks to identify rules that are no longer relevant due to technological and marketplace developments, disproportionately affect small businesses, or have been ineffective in achieving their intended objectives, including those that hinder innovation, create entry barriers or impose costs that outweigh their benefits.
More specifically, commenters are asked to consider these policy factors:
- Cost-Benefit Analysis: Whether certain regulations impose excessive costs compared to their benefits, and whether “if eliminated or modified, could result in greater benefits relative to the associated costs of the new regulatory framework.”
- Implementation Experience: Has experience with a rule shown it is unnecessary or inappropriate. For example, has the rule failed to achieve its intended objective, created unintended burdens, or led to frequent waivers or exemptions.
- Market and Technological Changes: Identify “what existing FCC Rules are unnecessary or inappropriate” due to advancements in technology and shifts in the telecommunications marketplace.
- Regulations as Barriers to Entry: Do any FCC regulations pose barriers to competitive entry, including whether they disproportionately burden or disadvantage small businesses and American-owned businesses.
- Regulatory Overlap and Redundancy: Have new federal or state regulations, industry standards, best practices, or other self-regulatory efforts made existing FCC Rules unnecessary.
- Legal and Constitutional Considerations: Do statutory changes, constitutional determinations, or other changes in the legal landscape since a rule was enacted mandate review its repeal. (e.g. the Loper Bright decision, where the Supreme Court overturned the previous legal principal known as the Chevron Doctrine granting deference to “expert agency” decisions)
- Other Considerations: The FCC seeks comment on “any other considerations relevant to [its] identification of existing rules that are unnecessary or inappropriate.” This includes rules that no longer have any operative effect, have outlived their intended purpose, or could be better enforced through case-by-case decisions rather than rigid regulations.
The question on everyone’s mind: what does this mean for broadcasters? While the notice itself does not provide a lot of insight into specific rules that the FCC is looking to eliminate, Chairman Carr’s prior statements and works do shed some light on what broadcasters might be able to expect from this proceeding.
For example, in his Project 2025 chapter at page 855, Carr wrote that FCC programs would benefit from a fresh look at eliminating outdated regulations that are doing more harm than good, stating that the FCC should eliminate many of the “heavy-handed FCC regulations that were adopted in an era where every agency operated in a silo” including “many of the FCC’s media ownership rules, which have the effect of restricting investment.”
A look at several of Carr’s dissents as a commissioner also provides insight into the areas where he is likely to move for regulatory reform.
- In a dissenting statement to an FCC NPRM on political programming and online public file requirements, Carr noted that, “The FCC can continue down the path of keeping legacy regulations on the books that are plainly doing more harm than good . . . [or] we can modernize our rules, we can eliminate the restraints on broadcasters that no longer make sense in today’s media marketplace, and we can unleash broadcasters to compete on [a] level playing field with their Big Tech competitors. Carr statement. (June 10, 2024).
- 2018 Quadrennial Review Order – Carr noted that the FCC must enact significant reforms to promote investment in trusted local news and information, as well as to promote competition and increase access to the local news and information that is so vital yet is too often out of reach for those in rural and other underserved communities. Carr statement. (Dec. 26, 2023).
Based on these and other general policy aims articulated by the Chairman, it seems likely the FCC may take a hard look at the following:
Multiple Ownership
Everyone seems to agree that it is time for a fresh look at the FCC’s Multiple Ownership Rules, §73.3555.
As recently outlined by NAB President Curtis LeGeyt, FCC Rules have treated radio and television broadcasting as isolated media of news and information that have no competition for their audiences or financial support. This is consistent with the standard applied by the Antitrust Division of the U.S. Department of Justice which uses a calculation known as the Herfindahl-Hirschman Index (HHI) to measure market concentration and competitiveness.
The DOJ has traditionally found broadcast advertising to be a highly concentrated market, in part because it fails to consider competition arising from other forms of media, including digital media. So, its conclusion is always skewed against broadcast advertising being a competitive marketplace. However, nearly all recent studies conclude that the dissipation of broadcast advertising market concentration is directly tied to the growth of digital media.
As LeGeyt has stated, new competitors like Netflix, YouTube and Spotify do not face the same regulatory burdens, public interest obligations or ownership limits and can reach similarly large, if not larger, audiences than the heavily regulated broadcast industry. Many analysts believe that broadcasters must be allowed to scale up to compete and to continue to provide essential journalism, local news and public safety services.
A new report from the Interactive Advertising Bureau (IAB) and prepared by PwC (PricewaterhouseCoopers) has found that internet ad revenues have surpassed those of broadcast television. The PEW Research Center reports that digital advertising revenue across all digital entities (beyond just news) continues to grow, with technology companies playing a large role in the flow of both news and revenue.
Indeed, this is not a new topic. The FCC ownership rules have been a major topic in the last two quadrennial review proceedings. In both proceedings, the FCC has sought comment on whether its broadcasting multiple ownership regulations remain “necessary in the public interest as the result of competition,” specifically seeking comment on three rules: the Local Radio Ownership Rule, the Local Television Ownership Rule and the Dual Network Rule.
Given the broad recognition that both radio and television are faced with strong competitive pressures from personal use digital technologies not imagined when the multiple ownership rules were adopted we can expect this to be a high priority and highly visible Delete, Delete, Delete topic.
FCC EEO Rules
The FCC’s equal employment opportunity rules emphasize broad outreach and recruitment. Previous EEO rules attempted to assess a station’s specific hiring process and the proportion of minorities and women in station staff, but those approaches were invalidated as unconstitutional.
The commission’s present method couples a ban on discrimination with specific outreach, record-keeping and reporting requirements. Its premise is that employment opportunities will result from filling full-time jobs only after soliciting candidates from the full community with a plan for broad outreach. The commission’s EEO rules prohibit discrimination on the basis of race, color, religion, national origin or gender.
With only two recognized exceptions, broadcasters must recruit for nearly all full-time vacancies and promote outreach with supplemental activities. The rules also require annual random EEO audits of five percent of all licensees. Over time, however, many broadcasters report difficulty in recruiting, despite exceptional efforts, and that many recruitment sources are no longer responsive. Given the increasing difficulty to attract new hires, alongside the administration’s policies on diversity, equity and inclusion initiatives, it seems likely that the commission’s EEO rules will be a prime target for review.
In particular, we may see changes to the commission’s stance on form 395-B. Under the prior administration, the FCC voted to reinstate the form 395-B which had been suspended for more than two decades and added a new “non-binary” gender category. There is an ongoing challenge to the form in the 5th Circuit, where the FCC has now asserted that “non-binary” will not appear on the form but has otherwise defended the use of the form.
This is a slight departure from the DOJ’s position, which is claiming the form now conflicts with President Trump’s executive order defining gender as male or female only. There are also petitions pending at the FCC seeking reconsideration of the decision reinstating Form 395-B and in oral argument, the 5th Circuit judges asked FCC counsel whether the FCC might be reconsidering and reversing the reinstatement of the form.
These are but a few of the FCC Rules that might be considered in the “Delete, Delete, Delete” Initiative. Given the scope of the DOGE efforts to reduce government regulation, we can expect many more. Interested parties should prepare to participate in this proceeding, whether to defend existing regulations or to propose changes.
The “Delete, Delete, Delete” Initiative is GN Docket No. 25-133. Comments are due April 11, 2025 and reply comments are due April 28, 2025.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.
This article originally appeared on TV Tech sister brand, Radio World.
