FCC Goes with Temp Cross-Ownership Waiver For WOR-TV

The Federal Communications Commission Friday announced that its Media Bureau has denied a permanent waiver request of the newspaper/broadcast cross-ownership rule sought by Fox Corp regarding the continued common ownership of WWOR-TV, Secaucus, New Jersey and the New York Post. Instead, the Bureau has granted a temporary waiver to preserve the status quo while the fate of the newspaper/broadcast cross-ownership rule is resolved.

Absent a waiver, the current rule prohibits common ownership of a daily newspaper and a broadcast station serving the same geographic market, in this case, New York, NY. However, as a result of the long-running dispute over whether the newspaper-broadcast cross-ownership rule remains lawful and justified, the Commission previously granted or extended temporary waivers for the WWOR/New York Post combination in 2001, 2006, and 2014. Subsequently, the Commission eliminated the newspaper/broadcast cross-ownership rule in 2017, and the combination of WWOR and the Post was authorized by operation of law for nearly two years with no need for a waiver. Following an appeal, a divided panel of the U.S. Court of Appeals for the Third Circuit by a 2-1 vote reversed and remanded the Commission’s decision, thus reinstating the rule. However, the U.S. Supreme Court has agreed to review the Third Circuit’s decision and will hear oral arguments on January 19, 2021.

The media marketplace has changed significantly since the adoption of the newspaper broadcast cross-ownership rule in 1975, resulting in repeated Commission efforts to modernize the rule. Given the pending Supreme Court review of this rule, and the Commission’s 2017 determination, which was unchallenged in the Third Circuit litigation, that the newspaper broadcast cross-ownership rule is no longer necessary to preserve competition or viewpoint diversity, the Commission determined that it was appropriate to grant a temporary waiver as opposed to a permanent one, until the status of the rule has been resolved.

As a result of Friday’s Order, Fox may continue to own collectively WWOR and the Post—as well as WNYW(TV), New York, New York, for which Fox had received a permanent waiver in 1993—pending the outcome of the current litigation and, in the event that the newspaperbroadcast cross-ownership rule survives that litigation, until 180 days following the date that a Commission order making a determination reaffirming that the newspaper-broadcast crossownership rule remains in the public interest becomes final and unappealable.

The action in this Order preserves the status quo and avoids the prospect of either hastily requiring a divestiture that might prove unnecessary or authorizing a permanent combination  while regulatory uncertainty remains over the status of the newspaper/broadcast crossownership rule.