FCC Eliminates National Television Audience Reach Cap

On October 1, 2026, the Federal Communications Commission (FCC or Commission) released its highly anticipated Report and Order (Order) repealing the National Television Audience Reach Cap (the National Cap). The National Cap has limited entities from owning or controlling broadcast TV stations that, in the aggregate, reach more than 39% of TV audience households in the United States (applying a 50% discount for UHF stations).

The Order institutes a case-by-case public interest review of applications that would have exceeded the former National Cap.

Background

In July, we summarized the draft order repealing the National Cap (Draft Order) that the FCC released in advance of its August 6, 2026 Open Meeting. As expected, the Commission voted at that meeting to adopt the Order. The just-released Order represents the FCC’s decision in its final form and culminates nine years of proceedings to revisit the National Cap.

The Order

As proposed in the Draft Order, the Order repeals the National Cap in favor of transaction-specific review under the FCC’s existing public interest mandate. The Order reiterates that “a bright line, ex ante limitation, as opposed to a transaction-specific review, is not necessary in today’s media marketplace.” Accordingly, the Order implements a case-by-case review that enables the FCC to consider all factors in a transaction rather than presumptively rejecting transactions that do not satisfy the 39% metric.

While the Order largely parallels the Draft Order, it provides additional information regarding how the FCC is likely to approach case-by-case reviews of transactions that would have implicated the National Cap. The Order offers “initial guidance regarding the kind of information that would inform [its] review of any non-local effects of a television merger, particularly with respect to allegations of potential harm from such effects.” The FCC notes that the Order does “not seek to comprehensively identify every consideration that could be relevant in the future” but instead aims to “highlight certain implications particularly relevant in light of [its] analysis in this Order.” According to the Commission, the transactions reviewed under this case-by-case approach “will help to refine and further develop these guideposts and criteria.” For example:

• Local Programming Concerns: The Commission emphasized that it will consider “the transaction-specific nature of any alleged harms,” particularly with respect to concerns regarding decreases in local programming. Under this framework, the FCC advises that oppositions to transactions based on local news should analyze the market status quo and trajectory absent the transaction, “rather than some hypothetical ideal marketplace not grounded in practical realities.” Additionally, the FCC invites opponents to look to the history of the parties’ conduct and the experiences of viewers in the relevant communities to support their arguments.
• Retransmission Consent Concerns: The FCC provided similar guidance for transactions involving alleged concerns about retransmission consent-related harms. The Commission will consider “the transaction-specific nature of any alleged harms, particularly because the Commission historically has not identified a non-local market for retransmission consent” and has previously “found that, in general, the public is well served when marketplace mechanisms can be left to govern such negotiations as much as possible.” Oppositions raising retransmission consent concerns “could seek to justify a non-local market definition or would need to support another theory why the increased national reach at issue in a given transaction would cause the alleged harms.” For retransmission consent-related claims based on national reach, the FCC anticipates oppositions should “identify why the relative negotiating leverage of the broadcast group would be contrary to the public interest.”
• Loss of Journalists and Communications Workers Concerns: The Commission expects challenges to transactions based on claimed job losses of journalists and communications workers to show how the harms are transaction-specific and cognizable by the FCC under the Communications Act. The Order emphasizes the importance of “compar[ing] alleged post-merger harms against the pre-transaction status quo and trajectory that actually was likely absent the transaction.”

In short, the Order suggests that opponents of transactions will need to show harms that would result specifically from the transaction under review, rather than from prevailing conditions in the broadcast television industry. The Order highlights that “the ultimate question” in the FCC’s review “remains the overall effect on the viewing public.”

Commissioner Reaction and Looking Ahead

FCC Commissioners’ statements regarding the Order continue to reflect the contentiousness surrounding the National Cap’s elimination. In a statement applauding the Order at the time of the vote, Chairman Brendan Carr explained that the FCC is “replacing a blunt instrument with a much more granular, case-by-case approach.” According to the Chairman, this approach “lets the parties make their case, allows all stakeholders to be heard, and ensures that the agency will then decide, consistent with [the Commission’s] public interest review.” The Chairman also reiterated the FCC’s legal authority to modify the National Cap, aligning with precedent from the D.C. Circuit and perspective from “[a]n unbroken line of FCC Chairs going back more than a dozen years.” Commissioner Olivia Trusty also voted for the Order, emphasizing that this action “can help preserve a vital part of the nation’s media ecosystem and give local broadcasters the opportunity to remain strong, competitive, and capable of serving their communities.”

Commissioner Gomez dissented from the Order. In a statement, Commissioner Gomez argued that the FCC’s decision to repeal the National Cap “is unlawful” and exceeds the agency’s authority. Moreover, Commissioner Gomez warned that the Order “overlook[s] the real-world consequences for the public.”

The Order will become effective 60 days after publication in the Federal Register, although further challenges are likely, as foreshadowed in a petition for stay filed by several state cable associations on October 2.