FCC Defends Media Ownership Rules Before Eighth Circuit

WASHINGTON, March 19, 2025 – The Federal Communications Commission defended its media ownership rules in federal appeals court in Minnesota on Wednesday. FCC Chairman Brendan Carr, a commissioner at the time, had dissented from the 2023 order being challenged.   

Broadcast companies have asked the court to strike down FCC rules that prevent mergers among the top four broadcasters in a given market, on the grounds that competition from other industries is fierce enough that local TV and radio stations need to consolidate to survive. 

“The economics in TV don’t support having more than three independent newsrooms in the vast majority of markets,” Andrew Kilberg, the attorney for the broadcasters, said. “But if they were able to access economies of scale,” he said, “they would have more resources to invest in that.”

Despite the new chairman’s opposition to the rules on similar grounds to the broadcasters – Carr wrote in his dissent that the agency “continues to advance the fiction that broadcast radio and broadcast television stations exist in markets unto themselves” – FCC attorneys defended them.

“The broadcasters have been making the same argument for the last 20 years,” said James Carr, counsel for the FCC. “And if he had accepted their argument 20 years ago, it would not have served the public interest.”

Under the Telecom Act, the agency conducts a review of media ownership rules every four years and assesses whether they need to be repealed or changed to promote the public interest, and it chose to uphold the “top-four” prohibition after a review that started in 2018. The top-four rule bans ownership of more than one of the four most highly rated stations in a local market – usually, but not always, the ABC, CBS, NBC or Fox affiliates. 

The FCC also made it more difficult for a TV station to use low power stations and digital multicast streams to circumvent the rule – a tightening supported by cable and satellite TV operators concerned that TV station consolidation would raise the fees they pay to Big Four stations for distribution rights.

The Eighth Circuit Court of Appeals judges who heard the case were all President George W. Bush appointees: Raymond Gruender, Duane Benton, and Bobby Shepherd. Judges pressed the FCC on whether retaining the top-four prohibition really served the public interest, but also asked some pointed questions of the broadcasters.

“The argument was not as easy for the broadcasters as it could have been, but we still believe the Court will likely remand the 2023 order to the FCC with instructions to redo the rules considering current market conditions,” Blair Levin, New Street Research policy advisor and former FCC chief of staff, wrote in an investor note after the argument.

Carr has long supported relaxing media ownership rules and is expected to roll back the 2023 order regardless. It appears he’ll soon have the majority he needs to do that, with Democratic Commissioner Geoffrey Starks planning to step down “this spring.” That will leave two Republicans and one Democrat at the agency.

Olivia Trusty, a longtime communications staffer on Capitol Hill, was nominated by President Donald Trump to fill the fifth commissioner spot, but hasn’t been confirmed. By law, the FCC can't have more than three commissioners of the same party, and the president usually nominates whoever the opposing party’s Senate leadership picks for an open minority spot.

It’s not clear Trump will observe the norm – he’s moved to bring independent agencies like the FCC under his control, including firing Democrats on the Federal Trade Commission in a move that experts said violated Supreme Court precedent.