Opponents of Sinclair Broadcast Group Inc.'s pending $3.91 billion purchase of Tribune Media Co. are attempting to block the deal by arguing it's against the public interest. But legal and industry experts say changing views on public interest make this argument unlikely to succeed.
In a letter addressed to the chairmen of the Senate Commerce and Judiciary committees, eight Senate democrats recently called for hearings on the Sinclair/Tribune deal. They pointed to the reach of the combined company, which together "would be the largest television broadcast company in the United States covering 72% of U.S. homes across 108 markets," according to the letter. In their calculations on reach, the senators did not apply the UHF discount, which allows stations broadcasting in the UHF spectrum — or on channels 14 to 51 — to attribute only 50% of TV households in their designated market areas toward the overall national ownership cap.
The senators said the nearly national reach of a combined entity raises concerns about localism and public interest reporting, with localism part of "the bargain that broadcasters strike in order to get a license — their programming must be responsive to the interests and needs of their communities."
Additionally, advocacy groups that oppose the deal have argued that Sinclair management has a history of dictating a top-down, partisan approach to news coverage. A commonly referred to example is the short commentary program "Behind the Headlines with Mark Hyman," which airs on dozens of Sinclair television news stations. Recent program titles include "IRS Secret Court," "Anonymous Sources," "Meeting the President," "Clinton Threat" and "Dishonest New York Times."
Sinclair has denied accusations of bias.
Still, given these allegations, Mark Grabowski, media law professor at Adelphi University on Long Island, said he is not surprised about the opposition to the Sinclair/Tribune transaction.
"These companies have been accused of being Trump-friendly. Anything involving Trump and the media is going to be a huge controversy," Grabowski said in an interview.
In terms of the public interest standard, Grabowski said the FCC has the power to "reject communications mergers it judges antithetical to the public interest," a determination made on myriad factors, including programming diversity, political discourse and localism. But he noted it is unlikely the FCC will use that power in the case of Sinclair and Tribune.
"While there will be a lot of noise from pundits and Democrat politicians over this merger, I'd be shocked if the FCC tries to block it," he said, adding that he believes "the public interest standard has been significantly watered down over time."
Other industry observers agree. Stuart Brotman, a nonresident senior fellow in the Brookings Institution's Center for Technology Innovation, noted in a Brookings report there are "decades of uncertainty and ambiguity" around the public interest standard.
Moreover, the FCC generally does not look at stations' content when considering the standard or deciding whether a station group should hold a broadcast license, Brotman said in an interview.
He recalled only one case in which the FCC stripped a station owner of a license based on a public interest concern with the station's content and programming. It involved a station in Mississippi in the late 1960s that was accused of excluding coverage of the local black community and the civil rights movement. The complaint against the station was made based on the Fairness Doctrine, an FCC policy that required broadcasters to present opposing views on controversial issues of public importance in a way that was equitable and balanced.
Brotman noted there are a number of major differences between the 1960s case and the concerns over partisan coverage in the current Sinclair/Tribune deal, but he pointed to the earlier case as an example of how rare it is for the FCC to examine a station's programming choices. From a legal and regulatory perspective, Brotman said the most important difference is there is no longer a Fairness Doctrine. "So there is no mechanism for the commission to look at content balance issues," he said.
Kagan analyst Justin Nielson agreed. "In terms of the regulations currently, there's nothing that requires equal views for programming," he said.
Nielson further noted that the local news coverage of a station group represents "a very small segment of their programming," the bulk of which is comprised of network shows and syndicated programming.
For Sinclair's part, the company said it appreciated lawmakers' interest in the Tribune deal and indicated it was ready to make a case for the benefits of the transaction.
"At a time of rapidly accelerating competition from the nation's largest cable, satellite, wireless and internet companies, the combined Sinclair-Tribune will have the wherewithal to compete through innovation," said Rebecca Hanson, Sinclair senior vice president of strategy and policy, in a statement.