DeLay explains how Congress decided on 39% cap

Courts reviewing whether an agency decision is lawful often try to determine what members of Congress intended when they passed a law, particularly when the law is vague. According to DeLay, the intent of Congress was clear when it mandated the 39 percent cap.

Although Republicans controlled the House, Senate, and White House in 2003, “Congress was at an impasse” over a budget bill because of a proposal by Sen. Ted Stevens (R-Alaska), DeLay wrote. Stevens “was an ally of the broadcast affiliates,” and he proposed “to codify in law the Federal Communications Commission’s rule that no broadcast group could reach more than 35 percent of American households,” DeLay wrote.

DeLay supported the Bush-era FCC’s deregulatory agenda and refused to back any budget bill that contained the Stevens proposal. DeLay said this week that he also worried about the potential impact on then-recent media mergers. After the FCC raised the cap to 45 percent, “CBS and Fox had acquired stations that had them reaching nearly 39 percent of the nation’s households,” DeLay wrote.

DeLay said he didn’t want to require those networks to divest stations they had lawfully purchased, and he made a compromise with Stevens to pass the budget bill and keep funding the federal government. “In the end, Stevens and I agreed to legislation that set the cap at 39 percent and prohibited the FCC from changing the cap in its biennial review of media ownership rules. The FCC was not allowed to waive the requirement, except to help companies come into compliance,” DeLay wrote.

The budget bill changed the FCC’s biennial reviews to quadrennial and said the FCC authority to repeal or change regulations during its quadrennial reviews does not apply to the 39 percent TV ownership cap. During each quadrennial review, “The Commission shall repeal or modify any regulation it determines to be no longer in the public interest,” the US law says. “This subsection does not apply to any rules relating to the 39 percent national audience reach limitation in subsection (c)(1)(B).”