NAB, Standard/Tegna Broadcasters Push Back on FCC Motion to Dismiss

The U.S. Court of Appeals for the D.C. Circuit should take up the Standard/Tegna broadcasters’ appeal of the FCC’s HDO, said NAB in an amicus filing Thursday. “This Court should treat this order according to its intent and effect—a de facto final denial of the license application—and hear the appeal,” NAB said in the brief filed late Thursday. Refusal to act is itself an agency final action, said the Standard/Tegna broadcast parties in a filing opposing the FCC’s motion asking the U.S. Court of Appeals for the D.C. Circuit to dismiss their appeal (see 2303280072). The FCC Media Bureau’s action “on gossamer evidence” injects “untenable unpredictability into license transfer applications,” NAB said.

NAB has historically held back from weighing in on specific deals, but CEO Curtis LeGeyt vocally condemned the HDO earlier this month. “Unappointed FCC staff have sent this proposed deal to regulatory purgatory, depriving the Commissioners the opportunity to participate in decisions that carry significant implications for broadcast stations and their viewers and listeners,” he said in a release Thursday. “Public interest review is not a mechanism for regulating licensee business contracts and employment practices,” the filing said. The Media Bureau’s “significant departure” from FCC precedent “means in practice that no party contemplating an investment in broadcast stations can, with any certainty, predict how the FCC will process its license transfer,” NAB said. “The broadcast industry cannot tolerate this kind of unpredictability.” The trade group also filed a motion Thursday seeking permission to file the amicus brief.

“An agency that lets a subordinate forbid any agency pronouncement until the private activity at issue becomes moot has necessarily said its piece,” said Standard General, Tegna and Cox Media Group. The broadcasters also pushed the court to consolidate their appeal proceeding with their petition for mandamus, while the FCC’s administrative law judge issued an order setting the case’s initial status conference for April 26. The broadcasters have said their deal will break up May 22 due to expiring financing.

"First principles of finance teach that no financing commitment in this world can endure until the eschaton,” said the Standard/Tegna broadcasters in their opposition filing. “Rational actors in the marketplace require a foreseeable horizon,” they said. The court should treat the FCC's hearing designation order as reviewable final order because the FCC is “frustrating judicial review by pretending that the matter is still under ongoing consideration.” The FCC told the court Thursday it won’t reply to the broadcaster opposition filing and the agency is “content to rest on the arguments” in the motion to dismiss.

Denying the applications through “strategic delay” instead of a formal denial doesn’t make the decision less final, the broadcasters said. “That the particular expedient the Commission has chosen to kill the broadcasters’ deal are covert, rather than overt, does not permit it to escape this Court’s review.”

The Standard/Tegna broadcasters also urged the court to consolidate the appeal and mandamus proceedings and apply an expedited briefing schedule to both over the FCC’s objections. If the court doesn’t allow an expedited briefing schedule for the appeal case, the timing restrictions will mean case can’t proceed, the broadcasters said. The court shouldn’t “artificially limit the options that will be available to it at the conclusion of the case,” the broadcasters said. The court should consider the issues in “a single streamlined proceeding” rather than “duplicative briefing tracks,” the broadcasters said.

Meanwhile, FCC ALJ Jane Halprin issued an initial case order Wednesday for the FCC hearing proceeding that's the subject of the D.C. Circuit appeals. The parties are required to submit proposed briefing schedules by April 19, with a status conference to establish the actual schedule to be held in person at the FCC April 26, the order said. The Standard/Tegna broadcasters told the D.C. Circuit the conference timing is an additional indicator the hearing process is intended to kill the deal. “The ALJ set an initial status conference for one month out,” said the broadcasters. “The ALJ hearing can serve no purpose other than delay.”