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A Look At The Regulatory Road Ahead For 2025 & Beyond - With David Oxenford

Tim Hanlon

Local television is not immune to the existential challenges facing the media industry writ large, and next month’s transition to a new Presidential administration will only add to the intrigue. To help us divine just what kind of changes might lie ahead for broadcasters on the regulatory and legislative fronts, we asked veteran Washington, DC communications industry attorney David Oxenford — Partner at Wilkinson Barker Knauer LLP, and author of the highly informative and influential Broadcast Law Blog — for his initial reading of the inside-the-Beltway tea leaves for 2025 and beyond.

TVREV: Could you describe, for the layperson, a little bit about what the FCC does — its oversight, what it can and cannot do. I think there's a lot of confusion about the FCC's actual authority, what it oversees, or even just nominally influences.

David Oxenford, Partner, Wilkinson Barker Knauer LLP: The FCC has been around since 1934 and is essentially the regulator of all telecommunications in the United States. Its principal role in broadcasting is spectrum allocation — ensuring that stations don't interfere with each other and provide service to all of the country. Over time, Congress has given the FCC additional responsibilities and areas of oversight. Sometimes, Congress has not been explicit in defining these delegations of authority, so the FCC has made rules interpreting its obligation to regulate broadcasters in the public interest.

There are certain areas where the FCC is required to oversee programming content or ownership issues. For instance, the FCC ensures there is a certain amount of children's programming on the air and that obscenity is not broadcast. There are also limitations on indecency, and issues like lotteries and tobacco advertising have, at various times, fallen under FCC enforcement. Political broadcasting is regulated.  Additionally, there are ownership rules designed to ensure that broadcasters serve the public, compete fairly, and provide diverse viewpoints. Congress has also imposed restrictions on the foreign ownership of broadcast stations, which the FCC enforces. 

Other issues of how a station serves the public interest can come up either through complaints or during the routine eight-year license renewal process. There are many other areas in which the FCC has some role in broadcast regulation.

TVREV: Given where modern media sits today, broadcasting over-the-air is now just a minimal part of a much broader content landscape that includes streaming, social media, cable, satellite, mobile, etc. How far does the FCC's oversight extend when we get into areas like broadcast stations streaming content or cable operators’ activities? Clearly, there are lines of demarcation, but I'm sure they’re quite complex.

Oxenford: Yes. Broadcast is the most regulated of all these services. Generally, the FCC has no authority over internet content. Cable falls in a middle ground; the FCC does have specific authority over certain aspects of local cable services, like advertising sales, which are subject to sponsorship identification and political advertising rules similar to broadcasters. Many of these rules don’t apply to the cable networks, including the indecency rules.  So it is mostly the cable local operators and their inserted programming that the FCC regulates.

Satellite is similar to cable. The FCC's authority covers political advertising, sponsorship identification, and carriage of local signals, but network services provided by satellite, like those from cable networks, are generally not subject to FCC regulation.

TVREV: And regarding the carriage of local signals?

Oxenford: Yes, carriage of local television signals is required for both cable and satellite operators. However, the networks' content itself generally remains unregulated by the FCC.

TVREV: The Supreme Court's overturning of the Chevron doctrine last year shifted more interpretive power to the judicial branch regarding regulatory bodies. Could you explain how that affects the FCC? Does it strengthen, weaken, or complicate the FCC’s authority?

Oxenford: The Chevron doctrine required courts to defer to a federal agency’s interpretation of congressional delegations of regulatory authority if the agency's explanation of their interpretation was reasonable. Courts would only overturn an agency’s decision about the meaning of a statute if there was no reasonable way to interpret the statute as the agency did, or if the agency’s decision lacked any supporting evidence in the record the agency compiled when it considered its decision.

Now that Chevron has been overturned, courts can substitute their own judgment when interpreting ambiguous statutes. They no longer have to defer to the agency's interpretation. This doesn’t mean the FCC will lose its regulatory power, but it does give courts more latitude to overturn FCC decisions if they disagree with the agency’s interpretation of the law.

TVREV: So this overturning upsets decades of precedent.

Oxenford: Right. The Chevron doctrine was adopted in the 1980s, so that's 40 years of precedent. Now, appealing an FCC interpretation of an ambiguous statute means the court can apply its own judgment. Courts will still consider the agency’s reasoning, especially if it's persuasive and supported by evidence. The main change is that courts won’t have to defer to the FCC’s interpretation of the statute itself.

This doesn’t mean the FCC will stop regulating; existing rules remain in place. It just means courts have more opportunities to overturn agency decisions.   There were FCC decisions that were upheld before Chevron, and other decisions that were overturned while the doctrine was in place.  In fact, in recent years, courts have become more active in reviewing administrative agency decisions, especially given conservative skepticism about delegation of authority to the “administrative state.”   So, while we'll likely see more decisions overturned, it’s not going to completely undo FCC regulation — it will affect things on the margins.

TVREV: With this weakened deference, it seems like there's now more potential for politically motivated oversight. That’s just my opinion, but what’s your take on Brendan Carr’s likely ascension to the FCC chairmanship? There’s a lot of political charge around his rise. While some regard him as effective, he's also taken a more public stance compared to typical FCC chairs. How do you interpret this potential shift, and what are the implications?

Oxenford: Nobody, except Brendan Carr, knows exactly what’s in store. But we can talk about specific issues. For broadcasters, changes to ownership rules are top of mind. In December 2023, the FCC decided not to relax existing ownership rules, maintaining that TV broadcasters compete only with other TV broadcasters and not with digital platforms. Brendan Carr dissented vigorously, arguing that this is an outdated view and that broadcasters need to consolidate to compete with the digital giants in today’s media marketplace.

TVREV: So, consolidation — or deregulation — seems to be the expectation among broadcast TV CEOs, right?

Oxenford: Yes. Carr contributed to Project 2025, the Heritage Foundation’s blueprint for the next Trump administration, where he advocated for eliminating outdated ownership rules. He’s also mentioned this issue in interviews since being designated chair. So, ownership deregulation will likely be high on his agenda.

However, even if Carr wants to push this through, it's not a quick process. He’d need to issue a Notice of Proposed Rulemaking, take public comments, and draft a decision that could be subject to court appeals. That process alone could take until 2026. Additionally, there's a pending appeal of the FCC’s 2023 ownership decision, and even if the court rules quickly on that appeal, that decision, even if favorable to broadcasters, may not immediately result in a change in the rules – the court could just tell the FCC to revise the rules taking into account all the competition that is in the marketplace.  Thus, finalizing any court-ordered change will still take time.

Congress is another wildcard. Legislative changes could bypass the usual FCC process, but even Congress takes time. There are several FCC-related issues pending before Congress that may require them to pass FCC-related legislation – issues dealing with spectrum allocation, auction authority, and broadband funding. Changes to broadcast ownership rules could get attached to broader telecom legislation, which is how the current rules were put in place in 1996.

TVREV: Let’s talk about Congress. The FCC interprets what Congress legislates, but major acts like the Communications Act of 1934 and the Cable Act of 1992 set the foundation for entire eras of media. I recently suggested in a previous TVREV column it might be time for a comprehensive new act to reflect the massive changes since the 1990s. Is that naïve? And isn’t the quadrennial review process supposed to help inform Congress on such updates?

Oxenford: It’s not naïve — both Republicans and Democrats have expressed concerns about big tech, but there’s no consensus on how to regulate them. That’s why progress has stalled. Other countries regulate online content more than we do, but whether that's a good idea is up for debate. And even if Congress acted, they might not delegate that regulation to the FCC.

The current FCC quadrennial review process is narrowly focused on local broadcast ownership rules — how many TV or radio stations one owner can control in one market. It doesn’t address broader issues like the national audience cap or digital competition.

TVREV: Right now, the mood in the media industry, especially local broadcasting, isn’t great. There’s a sense of managing decline, newsroom consolidation, and softening advertising value. From a regulatory perspective, could the new FCC leadership offer any optimism for broadcasters?

Oxenford: Yes. We might see ownership deregulation that allows greater consolidation. The FCC could also quickly approve top-four station mergers on a case-by-case basis, which the current administration has been reluctant to do. Other quick changes might include easing rules on joint sales and shared services agreements and reducing paperwork burdens.

However, there could be challenges. Carr has talked about putting more emphasis on broadcasters’ public interest obligations, which haven't been clearly defined since 1934. Trying to define those obligations could complicate things, as opinions on what serves the public interest vary widely.

TVREV: Some might argue that localism has declined due to consolidation, with more syndicated programming and less unique local content. Could redefining “public interest” to emphasize localism be both a regulatory requirement and a business opportunity?

Oxenford: Both Republican and Democratic administrations have considered strengthening public interest obligations. But defining “public interest” is tough because what matters to one person may not matter to another. The FCC can’t dictate specific types of programming without running into First Amendment issues. If public interest obligations are to be redefined, Congress should provide clearer guidance. But achieving consensus on such a definition is difficult.

TVREV: But might “public interest” also relate to [overall broadcast] spectrum usage? ATSC 3.0, currently a voluntary standard, allows broadcasters to use spectrum for more than just programming — like data services for smart cities, etc. Could the shift to ATSC 3.0 change how public interest is defined, and might the new FCC potentially mandate this standard?

Oxenford: ATSC 3.0’s potential for non-broadcast services, like datacasting, is separate from traditional public interest obligations for broadcasters. Mandating ATSC 3.0 could happen under a new FCC, but that’s a broader regulatory issue. Whether broadcasters should be regulated like telecoms or wireless providers, and vice versa, is something that could be addressed in a rewrite of the Communications Act. But that won’t happen overnight.

(Transcript edited for clarity and brevity)

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