It looks like FCC chairman Julius Genachowski wants at least some same-market joint sales agreements (JSAs) between TV stations -- likely ones that meet some minimum threshold of sales -- to count toward local ownership caps for the stations providing those services.
Multiple sources confirmed that attribution for "certain JSAs" was part of the quadrennial review order circulated by Genachowski among the other commissioners for a vote, though those officials had not done a deep dive into the details. Not being counted against ownership totals are shared services agreements, according to a highly placed FCC source. Some commenters, including cable operators, had pushed the commission to include those as well.
The FCC in 2003 voted to make radio JSAs attributable, but did not extend that to TV. The following year, it tentatively concluded that it should. In releasing its Notice of Proposed Rulemaking on the quadrennial review in December of last year, the commission again asked whether it was time to extend it to TV, but said it had reached no conclusion.
Even some opponents of adding TV JSAs to the attribution roster have wondered why the FCC hadn't dropped that other shoe before now.
The FCC currently limits local TV station owners to no more than two stations in a market (a duopoly) so long as one of the stations is not among the top for stations in the market based on market share and at least eight independently owned stations remain in the market. Now, selling ad time on another TV station in the market could trigger those limits.
The FCC already counts certain local marketing agreements (LMAs) toward its local limits. Those are deals in which a broker buys blocks on time on a station, supplies the programming and sells the ad time.
While FCC sources had seen the summary of the order, they had not gotten into the details of the extensive document at press time. That may have been because staffers were working on vetting the Tribune waiver decision, which the Media Bureau's wants to release Friday.
As a result, those sources did not know whether existing JSAs would be grandfathered under the proposal, and if so, for how long. In the case of radio, stations had two years to come into compliance, according to an attorney familiar with the rules.
According to sources, the "certain JSAs" meant those selling 15% or more of the other station's ad time, the same threshhold it applied to radio JSAs. And however the FCC slices it, the National Association of Broadcasters, which opposes the move, won't be happy if that part of the order survives edits from the commissioners now vetting the item. NAB declined comment at presstime.
Most likely that part of the order will have the three Democrat votes it needs to survive any pushback from Republicans on the commission.
Cable operators, broadcast unions and others have complained that JSAs and other joint sales and services agreements constitute de facto control by the brokering stations and are simply a way to skirt local market caps and give the combined stations more leverage in joint retrans negotiations.
Broadcasters have argued that many multichannel video providers have "substantially larger" shares of a local market than TV stations, even broadcasters with joint sales or services agreements for more than one station in a market. They say that trying to achieve carriage negotiation "symmetry" by limiting broadcasters' local market scale would be bound to fail.