Legislative Update January 2025: News from Trenton & Washington, DC – Changes in the FCC

by Dave Garb, Legislative Committee Chair

Happy New Year Everyone!!

In December, we were given a lot to think about as the new administration took charge of our nation’s capital. One of the main focuses we had been following is where the FCC might be directing their attentions. The digital divide (BEAD), big tech scrutiny, national security (TikTok), DEI, and net neutrality, are tops on their list.

From The FCC

At the beginning of January, net neutrality rules began to take one of these directions. The Sixth Circuit overturned the Federal Communications Commission’s net neutrality rules. They found that commercial broadband providers cannot be regulated as telecommunications common carriers. They proclaimed that the FCC “lacks the statutory authority” to impose its net neutrality policies, which are designed to prevent slowing or blocking web traffic.

The appeals court further ruled that internet service providers offer only an “information service” under federal law, “and therefore, the FCC lacks the authority to impose its desired net-neutrality policies through the ‘telecommunications service provision of the Communications Act.”

FCC Chair Jessica Rosenworcel, in response to this decision, said lawmakers need to finally resolve the issue. The FCC has argued on how to classify broadband under federal law since the early 2000s. “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair. It is clear that Congress now needs to take up the charge for net neutrality and put open internet principles into federal law.” The FCC will be unable to classify broadband providers under the act’s Title II, which covers telecommunications services like phone companies. Instead, they will remain as much more lightly regulated Title I information services.

Andrew Jay Schwartzman, who represented the Benton Institute for Broadband & Society and the Media Alliance as intervenors supporting the FCC, said the panel’s decision “misreads” the act and “deprives the FCC of the power to protect national security, ensure that competitive broadband suppliers can have access to necessary distribution outlets, and endangers wireless access programs for low-income consumers. This is bad for consumers, for businesses that rely on the internet, and for protecting broadband networks from intrusions by nation states.”

From NATOA

On December 31st, the FCC’s Report and Order adopted new rules requiring cable operators and DBS providers to report to the FCC any blackouts of TV stations on their systems that *last more than 24 hours and *are caused by an impasse in retransmission consent negotiations. This also creates a centralized, Commission-hosted database of basic blackout information that can increase the public’s transparency and insight into the frequency and duration of broadcast station blackouts.

Need for the Rules:

Blackouts are the unfortunate result of failed retransmission consent negotiations. We conclude that a reporting requirement is necessary to provide information that will enable the Commission to assess the functioning of the retransmission consent process, including the effects of blackouts on competition and consumers and inform Congress. At the outset, we note that the incidence of and number of subscribers affected by retransmission-consent-related blackouts appear to be increasing. As discussed in the NPRM, over the past decade and a half, anecdotal data suggests that the number of blackouts resulting from unsuccessful retransmission consent negotiations has increased dramatically, and the impact of each individual blackout has increased as more stations are taken off the air for longer periods of time.18 Even in recent years, as broadcast station group mergers and COVID-19- related delays have led to fewer retransmission consent agreements coming up for renewal in any given year, “the impact on subscribers has remained high.”19 S&P Capital IQ reports that “[retransmission consent] agreements impact more video subscribers than ever before, making blackouts a tough pill to swallow for those involved,” and that “[s]ports like NFL football are usually major contention points in negotiations, and many retrans deals are struck before NFL game days or even [before the Super Bowl].”20 For example, in 2023, the dispute Page 4 between Nexstar and DirecTV resulted in a blackout for millions of DirecTV subscribers of “more than 170 local stations across 120 metropolitan areas such as L.A., Chicago, Philadelphia, San Francisco and Denver.”21 DirecTV subscribers in markets with Nexstar owned broadcast stations (which includes stations airing ABC, CBS, Fox, NBC, and CW network programming) lost access to those stations ’local and national broadcast programming for 76 days.22 The blackout ended “when the two sides agreed to terms just two weeks after the NFL season had begun.

From The ACM:

On January 6, 2025, The Free State Foundation published an article from one of their Adjunct Senior Fellows and former FCC Commissioner, Michael O’Rielly. It is titled “DOGE Shouldn’t’t Overlook the Outdated Video Regulations” DOGE is the new Department of Government Efficiency. Here are some excerpts from this worrisome article:

  • Comparing today’s video environment to its predecessor is like comparing space travel to a donkey ride. Consumers now have at their fingertips a vast array of video programming choices. Traditional programming includes hundreds upon hundreds of cable channels, over-the-air broadcasters with multiple sub-channels, and the addition of two more television networks. But this pales in comparison to the immeasurable video content available for streaming or downloading.
  • Part of the reason for the acceleration away from traditional video distribution models of cable or satellite is attributable to the government. Certainly, the ease of technology and Gen Z ’s viewing habits are major culprits, but old government burdens in law and regulation governed by my previous institution, the Federal Communications Commission, make it economically smart to ditch the “cable provider” morass. That ’s why DOGE should focus a target on burning most of this deadwood.
  • Despite any pushback by narrow constituencies, there can be no justification for keeping current burdens when providers can and should escape to new business models in response. And it would be ridiculous to impose these tedious and expensive burdens on new video offerings. Can anyone imagine policymakers arguing that the space-wasteful and unwatched public access programming must be included on YouTube or Meta’s Reels?

For those of you who are beginning to get agitated by this, the ACM continued by reminding us of three interesting facts about former Commissioner O’Rielly.

  1. He was not renominated by Donald Trump. So it’s not like he’s favored by the Trump administration or by Trump himself.
  2. He got in some trouble, specifically, in 2019 and 2020 for violating the Hatch Act by endorsing Trump during the course of an FCC proceeding.
  3. He’s probably most well known in our field for being one of the key leaders of the 621 order itself that happened in 2019.

It appears that O’Rielly doesn’t like local government at all! Please click on this link to read this article in its entirety: “DOGE Shouldn’t’t Overlook the Outdated Video Regulations

Time will tell if anything will ever come of this. But it pays for all of us to keep an eye out for future articles

JAG (Jersey Access Group) is an organization that advocates, promotes, and preserves the right to media production, distribution, civic engagement, and education in support of diverse community voices, through Public, Educational and Government access facilities and other forms of media.