The U.S. Court of Appeals for the D.C. Circuit should reverse the FCC’s hearing designation order (HDO) and require the agency to grant the Standard/Tegna applications rather than remand the matter to the commission, said the broadcast parties to the deal in an appellant brief filed in docket 10-83 Thursday. “Given that only 53 days remain to complete the transaction, there is reason to fear that the FCC could run out the clock on remand to consummate its pocket veto of the applications,” said Standard General, Tegna, and Cox Media Group. The evidence in favor of granting the deal is “overwhelming,” so there's “thus no reason to hold a hearing,” the broadcasters said. “There is no further factfinding or deliberation the agency could conduct that would shed additional light on the transactions.” The brief again raises the broadcasters’ previous arguments on the FCC outreaching its authority by issuing the HDO based on questions concerning retransmission consent and job losses, and on the constitutionality of administrative law judges. ALJ Jane Halprin failed to comply with the HDO because she hasn’t set a schedule with a set date for the resolution of the FCC hearing proceeding, the broadcasters said. A status conference to determine the schedule is set for April 26. “The proper remedy is reversal, not mere remand,” the broadcasters said.

The FCC unanimously approved an NPRM seeking comment on proposals for the agency to implement the Low Power Protection Act, which would create a window during which select low-power TV stations could convert to Class A (see 2303240052). The proposals largely align with the LPPA, which restricted the window to stations that carry three hours per week of local programming in markets of 95,000 households or fewer. The NPRM tentatively concludes that translators won’t be eligible for the window, and neither will be the small number of LPTV stations that haven’t shifted to digital. The NPRM also seeks comment on possible alternatives to the Nielsen definition of a TV market, the designated market area, such as the metropolitan statistical areas (MSAs) and rural service areas (RSAs) proposed by the LPTV Broadcasters’ Association. “These classifications, which are based on population, appear to have nothing to do with market assignment information or determining television broadcast station markets, unlike Nielsen DMAs,” the NPRM says. “We seek comment on LPTVBA’s position and on any alternative means of delineating DMAs using a system of dividing television broadcast station licensees into local markets.”

Comments on the FCC’s proposed expansion of audio description requirements are due in docket 11-43 April 28, replies May 15, said a public notice Thursday. The NPRM, unanimously approved earlier this month, seeks comment on requiring audio description in all 210 U.S. broadcast markets (see 2303100043). The proposal would maximize the amount of audio description the FCC can require under the 21st Century Communications and Video Accessibility Act.

The U.S. Court of Appeals for the D.C. Circuit should dismiss the Standard/Tegna appeal because it doesn’t have jurisdiction over the case, the FCC said in a motion to dismiss and response filed Thursday. “This Court lacks jurisdiction over the Hearing Designation Order because it does not constitute final Commission action,” the agency said. Similar arguments were made by the deal's union and public interest group opponents. The court on Thursday approved those opponents as intervenors in the case. The lack of jurisdiction is also why “there is no good reason for the Court to consolidate or expedite the appeal,” the FCC said. The HDO isn’t a final order because it was issued at the bureau level rather than after a commissioners' vote, the FCC said. The HDO also doesn’t come to any conclusions -- unlike most HDOs, the Standard/Tegna order doesn’t require the FCC’s administrative law judge to issue a decision, it only directs the ALJ to hold an inquiry and then report back to the Media Bureau. “Such ‘merely investigatory’ agency action is ‘not final agency action’ because ‘the agency has not yet made any determination or issued any order imposing any obligation,’” said the FCC. The broadcasters haven’t provided any evidence as to why they can’t extend the financing on their transaction past the May 22 final extension date, said intervenors Common Cause, the United Church of Christ Media Justice Ministry, and the Communications Workers of America's NewsGuild and National Association of Broadcast Engineers and Technicians sectors. The court should “disregard” the argument that financing will be lost because allowing it could set a “dangerous precedent,” the intervenors said. “Going forward, applicants before the FCC and other agencies could simply set arbitrary deadlines for agency action.” May 22 “is a deadline of appellants’ own making,” said the FCC. “At this juncture, any decision by appellants not to proceed with the proposed transaction would be their own private business decision, not the result of a regulatory directive from the agency.” The intervenors also faulted Standard/Tegna for hurrying the court and FCC to act while asking the FCC to block union attorneys from accessing information on the case. "Appellants have not come to Court with clean hands,” said the intervenor filing.

FCC Administrative Law Judge Jane Halprin rejected an Enforcement Bureau motion seeking to limit radio broadcaster Arm & Rage from mentioning its principal Joseph Armstrong’s good behavior since his felony conviction in the company’s license hearing proceeding, said an order posted Tuesday in docket 22-122. Arm & Rage’s license to own WJBE(AM) Powell, Tennessee, was designated for hearing in March 2022 (see 2203210047). Halprin ruled earlier this month that EB inquiries into Armstrong’s tax filings and on whether he had violated other FCC rules were outside the scope of the hearing proceeding, which concerns Armstrong’s fitness to hold a license after being convicted of making a false statement on a 2008 tax form. After that ruling, the EB asked Halprin to bar Armstrong from claiming the conviction was an aberration or that Arm &Rage had a good record of FCC compliance. “The fact that it is acceptable to consider whether Mr. Armstrong has been rehabilitated does not open up discovery as to whether he may have engaged in other, unadjudicated criminal activity,” ruled Halprin. “It would have been acceptable to ask whether Mr. Armstrong had ever been convicted of other felonies, but the Bureau’s inquiry is about matters far outside that.”

NAB and Xperi's proposal for higher digital FM power levels (see 2301130053) would lead to increased interference on the already burdened FM band, said New Jersey radio broadcaster Press Communications in an ex parte letter posted Friday in docket 22-405. “The public interest in this matter can best be served” by the FCC “doing nothing,” Press said. NAB and Xperi’s petition has gone through the public comment process, but the agency hasn’t otherwise acted on it. Through the waiver process, the FCC can authorize some changes in the proposal, Press said. “Blanket increases of digital signal levels” will “destroy long established and proven listening patterns to existing analog FM stations,” said Press: “This will be especially damning to lower power Class A broadcasters, AM operators with FM translators” and low-power FMs. The FCC should instead look to help Class A FM and AM stations, or exempt the crowded FM band in New Jersey from the rule, Press said. The broadcaster condemned the increasing use of FM translators by HD radio stations, and said the impact of the proposal on AM stations using FM translators should have been studied. Press said: “Contrary to what the Petitioners would like everyone to believe, in a situation where the FM band has already been overwhelmed and saturated with additional services, there is no such thing as benign added interference.”

The FCC isn’t required to act on the Standard General/Tegna deal before the May 22 final extension date, said the union and public interest group opponents to the transaction in a joint opposition filing posted Monday in docket 22-162 (see 2303240064). “Selecting that date was the Applicants’ mistake,” said the joint filing from Common Cause, the United Church of Christ Media Justice Ministry, and the NewsGuild and National Association of Broadcast Engineers and Technicians unions. The FCC “is under no obligation to solve their problem,” the filing said, urging the agency to dismiss the Standard/Tegna application for review “for that reason alone.” Forcing the FCC to decide the issue by May 22 ignores the rights of the other parties in the case to participate in a hearing, the filing said. The broadcaster's constitutional claims against the administrative law judge hearing aren’t valid here because the hearing was limited in scope and FCC rules allow the hearing to be conducted without an ALJ, the groups said. “If there is one truly unprecedented aspect of how the Media Bureau treated the Applicants, it is that the staff afforded them extraordinary opportunities to put more information into the record to resolve possible factual issues,” the filing said. Standard General didn’t comment. The broadcasters said they would seek relief from the courts if the FCC didn’t vote on the transaction by Monday.

Three channel substitutions granted by the FCC Media Bureau took effect Monday, said that day’s Federal Register. Gray Television station KTRE Lufkin, Texas, will switch from Channel 9 to 24, and Gray’s KOSA–TV Odessa, Texas, will shift from 7 to 31. WVEC Television’s WVEC Hampton, Virginia, will switch from 11 to 35, the FR said.

The Standard General/Tegna broadcasters’ filings urging an FCC vote on the deal blatantly disregard all the procedural boundaries in the agency’s rules and should be stricken from the record, said the Enforcement Bureau Thursday and Friday in a motion to strike, a motion opposing the broadcaster waiver request, and a filing on confidential documents in docket 22-162. The filings raise similar arguments to those made by unions last week (see 2303220072). Broadcast industry officials told us they don’t expect the FCC take up the broadcaster appeal, and court filings are likely this week. Though the FCC administrative law judge’s decision on a motion to certify is unappealable according to agency rules, the broadcasters asked the FCC to “simply conclude that this rule does not apply to them,” the EB said Thursday. The broadcaster insistence the FCC must rule on the deal by Monday or face a court challenge isn’t backed up by precedent and would deny other parties in the proceeding due process by not allowing them time for a response, the EB said. “It is striking that, after complaining the Commission has denied them due process, Applicants seem to have no issue with denying due process to the other parties named in the hearing,” the EB filings said. The broadcaster application for review should also be rejected because it ignored the five-page limit on such documents specifically laid out in the regulations, the EB said. The broadcasters asked for a waiver of that requirement, then filed their 25-page AFR. “There is nothing in the Rules that legitimizes a pleading that exceeds the page limits simply because a party has requested a waiver of that limit,” the EB said. The bureau also took issue with Standard’s request the FCC not share confidential filings in the proceeding with new attorneys for Communications Workers of America's NewsGuild and the National Association of Broadcast Engineers and Technicians sectors. Both Standard’s request to block the document sharing and the attorney requests for access were premature, the EB said. Standard is incorrect in its arguments access isn’t needed because the hearing is likely to be either blocked by legal action or mooted when the deal collapses, said the bureau. The “mere filing” of pleadings with the FCC or courts “does not suspend the hearing proceeding,” the EB said. “The obligations of any of the parties -- including Applicants -- to participate in that proceeding remain on-going.” Standard didn’t comment.

Possible FCC action on a Florida Association of Broadcasters petition on lowest unit rate advertisements could lead to an increase in political ads, said Wilkinson Barker broadcast attorney David Oxenford in a blog post Wednesday. The Florida broadcasters asked the agency for a declaratory ruling on whether political committees authorized by a political candidate are entitled to lowest unit ad rates, as the candidates themselves are. “This is a very confusing area of the law and, if not interpreted narrowly, could open the door to LUR overwhelming the current political advertising landscape,” Oxenford said. FAB asked the FCC to use Federal Election Campaign Act definition of such committees, which requires them to be affiliated with a single candidate and receive contributions on behalf of that candidate. However, the rules for coordination between candidates and other groups are looser in many states, and that could have consequences depending on what the FCC does in response to the FAB request, Oxenford said. The FCC “has not yet officially indicated that it will ask for public comment on this petition,” he said.