A newly released legal analysis by two prominent appellate scholars concludes that the Federal Communications Commission does not have the authority to raise, eliminate, or waive the long-standing 39% national television ownership cap, arguing that only Congress has the power to alter the limit.
The study, "The FCC Lacks Statutory Authority to Revise the Telecommunications Act's 39% National Ownership Cap for Television," was published this week amid renewed debate at the FCC over whether the cap should be revisited.
The authors conclude that the Telecommunications Act of 1996, as amended in 2004, "unambiguously" fixes the cap at 39% and strips the FCC of any discretion to change it.
The findings pose a significant problem for FCC Chairman Brendan Carr, who has openly supported the idea that the TV cap should be lifted and seems friendly to the $6.2 billion merger of Nexstar and Tegna — a deal that, if approved, would create the largest TV group in the nation.
The merger has come under fierce criticism from conservative groups, including the Conservative Political Action Conference, Newsmax, the Zionist Organization of America, and others, who note the merged company would reach over 80% of U.S. households — a clear violation of the 39% cap.
Conservative critics of the merger and any increase in the TV ownership cap have warned of growing influence and reach of major TV networks and station groups, a threat to viewpoint diversity, especially at the local news level.
The new legal paper was written by Kannon Shanmugam, chair of the Supreme Court and appellate litigation practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP, and William Marks, a partner in the same practice group.
Shanmugam previously served as an assistant to the U.S. solicitor general from 2004 to 2008 and clerked for the late Supreme Court Justice Antonin Scalia.
Marks is an experienced appellate litigator who has argued significant statutory and administrative law cases in federal courts.
According to the authors, Congress deliberately set the national television ownership cap at 39% when it amended the Telecommunications Act in 2004 after years of regulatory instability and litigation surrounding FCC ownership rules.
The statute directs the FCC to "modify its rules" to reflect a precise 39% cap and, crucially, removes the cap from the FCC's regular review of media ownership regulations.
"The statutory text, structure, and history all point in the same direction," the paper states.
"Congress intentionally fixed the national ownership cap at 39[%] and denied the FCC authority to revise, eliminate, or waive it."
The authors emphasize that Congress not only set the cap but also reinforced its permanence by prohibiting the FCC from forbearing enforcement, requiring divestiture by companies that exceed the limit, and repeatedly referencing the "39[%] national audience reach limitation" throughout the statute.
Those provisions, they argue, would be rendered meaningless if the FCC could later alter the cap on its own.
The analysis also relies heavily on recent Supreme Court precedent limiting agency power. In particular, the authors point to the court's 2024 decision in Loper Bright Enterprises v. Raimondo, which ended judicial deference to agency interpretations of ambiguous statutes.
Under that ruling, courts must independently determine whether an agency has acted within its statutory authority. Applied here, the authors argue, the FCC's position would receive no deference and would likely fail judicial scrutiny.
The study's conclusions align closely with a separate legal submission filed earlier this year by Brian T. Fitzpatrick, a former Supreme Court clerk and Vanderbilt law professor.
In a November ex parte filing with the FCC, Fitzpatrick similarly concluded that the 39% cap is mandatory and can be changed only by Congress, not by administrative action.
Fitzpatrick's analysis focused on the same statutory features highlighted in the new white paper, including Congress' removal of the ownership cap from the FCC's biennial review process and the statute's explicit divestiture and enforcement provisions.
He argued that even if the FCC attempted to revise the cap through rulemaking, regulated entities would still remain bound by the statutory 39% limit, creating legal contradictions and inevitable court challenges.
Both Fitzpatrick and the Paul Weiss authors note that Congress intervened in 2004 after repeated court rulings invalidated FCC ownership decisions and after commissioners themselves warned lawmakers that constant regulatory reviews were destabilizing the broadcast market.
Legislative history cited in the new paper shows that members of Congress explicitly described the 39% cap as "permanent" during floor debate.
The FCC reopened the issue in July, seeking public comment on whether it has authority to revisit the cap.
But the new study warns that any attempt by the agency to act unilaterally would almost certainly trigger litigation and face steep odds in federal court.
"Congress has spoken clearly," the authors conclude, "that the debate over national television ownership limits must be resolved by the people's elected representatives, not by administrative fiat."
As pressure builds from industry groups on both sides of the issue, the report adds fresh legal weight to the argument that the next move on the 39% cap belongs on Capitol Hill — not at the FCC.
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