The rule that stops any single broadcaster from reaching more than 39 percent of U.S. TV households is headed for repeal. That rule, the National Television Ownership Rule, was set by Congress. The Federal Communications Commission's plan to erase it is likely to produce a court challenge over whether the agency has the power to override a limit Congress established.
What the repeal would do
FCC Chairman Brendan Carr announced the plan in an op-ed published on Breitbart. Under the proposal, the fixed 39 percent ceiling would be replaced by a "case-by-case review" of each proposed merger. A discretionary process of that kind lets the commission approve deals for some broadcasters while blocking the same type of deal for others. The change, by design, makes it easier for the FCC to pick which station groups get to grow beyond the existing cap.
The legal friction is plain: the National Television Ownership Rule was established by Congress, and the Carr FCC's argument is that Congress gave it the authority to modify or waive the rule. Repealing it outright is a bigger step than a waiver. That is the argument expected to end up in court.
The Nexstar-Tegna deal, already above the cap
Before any formal repeal vote, Carr's FCC showed its hand. In March, the commission granted a waiver allowing Nexstar Media Group to acquire Tegna, a deal that pushed Nexstar's reach above half of all U.S. TV households. That is well above the 39 percent ceiling. The FCC's rationale was that issuing a waiver fell within its existing authority. Repeal would remove the need to grant individual waivers at all.
Who gains under a discretionary system
Swapping a fixed number for case-by-case review puts more power in whoever runs the commission. Under Carr, the FCC has signaled it intends to use that power to benefit broadcasters that provide favorable coverage of President Trump. Companies whose coverage the commission views differently would face more uncertainty in any future merger process.
Congress set the 39 percent threshold to keep any one broadcaster from reaching a dominant share of the national audience. Whether the FCC can wipe out that threshold without congressional action is the question now headed for the courts.