What the FCC Cannot Unilaterally Do — and What Eliminating the TV Ownership Cap Reveals

The Federal Communications Commission voted 2–1 on August 13, 2026, to eliminate the National Television Ownership Rule. For over two decades, that rule barred any single entity from owning TV stations reaching more than 39 percent of American households. Chairman Brendan Carr replaced the cap with a case-by-case review process, arguing that broadcasters need flexibility to compete against streaming services.

The vote matters less for what it changes immediately than for what it reveals about the boundaries of agency authority, the trajectory of media consolidation, and the gap between regulatory rhetoric and market reality.

What the rule was and how it got there

The 39 percent national cap has a history that stretches back through multiple administrations and Congresses. The Telecommunications Act of 1996 began easing media ownership restrictions, eliminating the radio station cap and allowing larger firms to accumulate broadcast properties. The FCC itself attempted to raise the TV ownership limit in 2003, during a Republican-controlled Congress, proposing to increase it from 35 percent to 45 percent.

Congress intervened. In 2004, lawmakers attached language to an appropriations bill that set the national television ownership cap at 39 percent and prohibited the FCC from modifying it during its mandatory quadrennial regulatory reviews. The legislative record shows that both Democratic and Republican leaders supported this approach. Former Republican Representatives Tom DeLay and Mike O’Rielly agreed that the FCC lacked unilateral authority to change a percentage Congress had set by statute.

The cap was not a perfect solution. It allowed significant consolidation while drawing a line at total market dominance. But it represented a deliberate choice: Congress would set the boundary, and the FCC would enforce it.

What Carr’s legal theory claims

Chairman Carr’s justification rests on three arguments. First, he claims that repealing the cap provides “essential relief for local broadcasters” by allowing them to attract capital and advertising revenue needed to sustain local news operations. Second, he argues that the case-by-case review process offers more targeted oversight than a blunt percentage limit. Third, he cites a 2002 DC Circuit decision, asserting it showed that Congress’s percentage choice was only a “starting point” for future regulatory adjustments.

The legal theory has structural problems. The 2002 court ruling predates the 2004 statute that both set the 39 percent figure and restricted FCC modification authority during quadrennial reviews. Carr’s strategy appears to rely on acting outside that review cycle, which raises questions about whether timing can circumvent a statutory constraint.

More significantly, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo overturned Chevron deference, holding that courts must exercise independent judgment on statutory ambiguities rather than deferring to federal agencies. Existing regulations remain valid, but future agency interpretations face stricter judicial scrutiny. An FCC chairman claiming authority to override a Congressional percentage faces a legal environment where courts are explicitly instructed not to defer to agency readings of ambiguous statutes.

What the dissent says

Democratic Commissioner Anna Gomez dissented from the vote, stating that only Congress can change the cap. She noted that former Republican leaders agreed the FCC lacks this authority, and warned that eliminating the cap trades pressure from Big Tech for a “squeeze from Big Media” that will harm local reporting.

Gomez’s dissent points to a tension in the regulatory landscape. The broadcast industry has faced genuine economic pressure from streaming platforms, social media, and shifting advertising markets. Local news coverage has declined as stations consolidate and shared services agreements reduce editorial independence. But removing an ownership cap does not address the structural challenges of broadcast economics — it removes a constraint on who can accumulate market power while those challenges persist.

What consolidation already looks like

The practical effect of eliminating the cap depends on which mergers it enables. Nexstar Media Group, the largest television broadcasting company in the United States, owns 265 stations and announced a $6.2 billion acquisition of Tegna that would bring its reach to approximately 80 percent of American households. The deal already exceeded the 39 percent limit under a waiver, suggesting that the cap’s enforcement has been flexible even before its formal elimination.

An Eighth Circuit ruling struck down FCC duopoly rules that prevented a single entity from owning two stations in the same market. With both the national cap and local duopoly protections weakened, the path toward concentrated ownership is clearer than it has been in decades.

Media advocacy group Free Press announced plans to sue, arguing that the change requires congressional action. They warned it would allow politically aligned billionaires to consolidate stations, leading to dominant broadcasters and job cuts. Whether these concerns materialize depends on market conditions, regulatory enforcement of the case-by-case review process, and how courts evaluate Carr’s statutory authority.

What the case-by-case alternative offers

Carr’s replacement — a case-by-case merger review — is not inherently worse than a percentage cap. In theory, it allows the FCC to evaluate each proposed transaction against competitive conditions, public interest obligations, and market-specific factors. A flexible standard can account for differences between local markets that a national percentage cannot.

In practice, case-by-case review depends on the commission that conducts it. A future FCC with different priorities could approve or reject mergers based on political considerations rather than competitive analysis. A percentage cap, by contrast, provides a fixed boundary that survives changes in agency leadership. The trade-off is between flexibility and predictability — and the choice between them has consequences for how much market power any single broadcaster can accumulate.

What the broader pattern shows

The FCC’s action fits a larger pattern of regulatory retreat from media ownership constraints. The Telecommunications Act of 1996 began the process. Subsequent FCC actions expanded cross-ownership rules, relaxed same-market restrictions, and allowed shared services agreements that reduced editorial independence without changing formal ownership. The 2004 Congressional cap was one of the last remaining bright lines.

Eliminating it does not automatically produce worse local news or more concentrated media power. But it removes a constraint that existed for a reason, replaces it with a process whose outcomes depend on whoever sits at the FCC, and does so in a legal environment where courts are less likely to defer to agency interpretations of statutory authority.

The Free Press lawsuit will test whether Carr’s reading of the statute survives judicial scrutiny post-Chevron. The outcome will clarify how much authority the FCC retains to modify ownership rules that Congress has set — and whether the case-by-case review process provides meaningful protection against concentration, or merely removes the cap while keeping the paperwork.

What the vote reveals is not simply that one FCC chairman disagrees with a percentage limit. It shows how regulatory authority shifts when agencies act within statutory gaps, when courts stop deferring to agency interpretations, and when the economic pressures on an industry create political cover for deregulation. The 39 percent number was arbitrary in origin but deliberate in placement. Removing it changes who decides where the line goes next.