The 11th U.S. Circuit Court of Appeals on Monday denied a Gray Television motion asking it be allowed to file a supplemental briefing in light of the U.S. Supreme Court's Jarkesy decision (see 2408140057) (docket 22-14274). Gray is appealing a $518,000 FCC forfeiture order.

The FCC hasn’t shown why the 11th U.S. Circuit Court of Appeals shouldn’t consider the U.S. Supreme Court’s SEC v. Jarkesy in ruling on Gray’s appeal of a $518,000 FCC forfeiture order (see 2408270053), Gray said in a reply filing Tuesday. “The FCC objects that -- although the Supreme Court decided Jarkesy after oral argument in this appeal -- Gray should have raised Jarkesy in its opening brief and in the forfeiture proceeding,” Gray said. “The FCC is incorrect, and it offers no valid argument to deny supplemental briefing.” In the SEC v. Jarkesy opinion, SCOTUS ruled that the SEC couldn't impose monetary fines for some offenses without holding a jury trial. Jarkesy “is an intervening Supreme Court decision whose reasoning has provided Gray with a new theory to challenge the Forfeiture Order,” and can be raised in the case under court precedent, Gray said. Accounting for Jarkesy in the case wouldn’t be prejudiced against the FCC because the case has already been raised in AT&T’s challenge of an FCC forfeiture (see 2408060035), Gray said. “It would be unjust to deny supplemental briefing.”

The FCC should reverse course on its proposed $150,000 penalty against Mission Broadcasting (see 2401120069) in light of recent U.S. Supreme Court decisions on agency enforcement and Chevron deference, Mission said in a supplemental filing posted Tuesday in docket 22-443. The proposed penalty is from a January notice of apparent liability over accusations from Comcast that Mission violated the FCC’s rules on good faith retransmission consent negotiation by allowing Nexstar -- which operates all of Mission’s stations – to negotiate on Mission’s behalf for WPIX New York. “Just as courts should no longer defer to agency interpretations of statutes, neither should they defer to agency interpretations of regulation” after SCOTUS’ Loper Bright v. Raimondo decision, Mission said. The FCC’s NAL is based on “irrational interpretations” of FCC rules and precedent and the agency hasn’t shown that Mission’s violations were willful and continuous, Mission said. “Common sense demands that the presentation of a contract proposal is a ‘discrete act,’ not a continuing violation, and the NAL’s contrary reading of the statutory term is inconsistent with FCC and judicial precedent,” Mission said. Under the high court’s SEC v. Jarkesy ruling, the FCC’s proposed forfeiture would violate the Seventh Amendment right to a jury trial, Mission said. Jarkesy “confirms that the FCC’s enforcement regime suffers from constitutional deficiencies,” Mission said. Attorneys have widely predicted that the Loper Bright and Jarkesy decisions will be raised in nearly every FCC enforcement proceeding going forward (see 2407250030). Mission and Nexstar are also facing a second, $1.8 million NAL connected with Mission’s operation of WPIX (see 2403220067).

The FCC won’t require broadcasters to submit workforce diversity data on Sept. 30, a public notice said Friday. Workforce data submission is a new requirement that stems from the FCC's February equal employment opportunity order, which is being challenged in the courts and at the FCC (see 2408290045). Broadcast attorneys had expected the submission to be due at the end of September. The Media Bureau has said it would issue a public notice ahead of the due date for the new Form 395-B with details of the filing process. “Because the Bureau has not yet released that Public Notice, the data collection will not be due on September 30th this year,” the PN said. “The Bureau will provide broadcasters ample time to put into place whatever data collection processes they require prior to the first filing deadline.”

The FCC Enforcement Bureau has renewed arguments that broadcast attorney Dan Alpert has conflicts of interest and can’t represent multiple parties in the hearing proceeding on the TV and radio licenses of Antonio Guel and the Hispanic Christian Community Network, according to a transcript released Wednesday of an Aug.14 status hearing (see 2407290030). “I cannot figure out how he could both defend Mr. Guel at a deposition, and represent witnesses at the deposition,” said EB Special Counsel Michael Engel. “That's unheard of.” Alpert said that he has represented HCCN and other companies affiliated with Guel for many years, and the staff of those companies consider him their lawyer, including many of the witnesses in the case, which include Guel’s daughter Maria Guel and niece Jennifer Juarez. Alpert said all those involved have consented to him representing them. The hearing proceeding is based in part on allegations that Guel pretended to sell his stations to Juarez while actually retaining control of them. At the hearing, Engel said that in an interview with the EB, Juarez told them she had never spoken with Alpert, though he represented her before the FCC for ten years. “How was he able to discern her desires if he had never spoken to her? That's an extremely curious representation to make to Your Honor,” Engel said. “Very troubling.” Alpert said that he and Juarez communicated in writing and that Engel’s questions showed that he knew little about how LPTV stations function. Generally, they require very infrequent interactions with their attorneys, even across a decade, Alpert said. “All it requires is basically 'Hey, your annual regulatory fees are due.' Email once a year, every other year, an ownership report is due,” Alpert said. “I mean for him to be incredulous about that sort of thing, is he foolish or stupid, is what I'm asking at this point here,” Alpert said. FCC Administrative Law Judge Jane Halprin said she would weigh whether to require the witnesses to get new counsel and that such a requirement could severely delay the resolution of the case.

The 11th U.S. Circuit Court of Appeals’ precedent and the Communications Act should prevent the court from approving Gray Television’s motion (see 2408140057) that calls for filings on whether U.S. Supreme Court’s SEC v. Jarkesy ruling on agency enforcement actions (see 2407250030) should apply in Gray’s appeal of a $518,000 FCC forfeiture order, the FCC said in a response filing Monday. “That is a wholly new issue in this case,” the FCC said, arguing that Gray could have challenged the FCC’s enforcement authority earlier in the case, when the Jarkesy litigation was ongoing. “Instead, Gray waited until six weeks after the Supreme Court’s decision in Jarkesy—when this case had long been briefed and argued—to seek leave to challenge the FCC’s enforcement procedures for the first time,” the FCC said. “This Court has repeatedly declined to consider new claims in analogous circumstances.” Gray never suggested in prior filings in the case that the FCC’s enforcement proceeding was invalid because Gray was entitled to a jury trial, the FCC said. The Communications Act “forecloses judicial review of issues on which the FCC had no ‘opportunity to pass’ during the administrative proceeding,” the FCC said.

NAB will provide broadcasters with digital resources, virtual education and a summit at NAB New York as part of an “election preparedness initiative” aimed at delivering “accurate and reliable” coverage of the 2024 election, the trade group said in a release Tuesday. “As bad actors increasingly use advanced technologies to create and spread disinformation, the role of local broadcasters as custodians of the truth has never been more important,” NAB President Curtis LeGeyt said in the release. The initiative includes an election toolkit with resources on trust-building and broadcast best practices, and targeted resources “aimed at increasing voter participation and engagement within the Hispanic community.” On Sept. 9, NAB and the Radio Television Digital News Association will hold a free online virtual learning session on “building trust with their audiences and combating disinformation during the 2024 election season.” On Oct. 10, NAB will host an in-person summit at the NAB Show New York on improving trust in political coverage, “ensuring verified news in the age of AI and social media,” and combating misinformation and deep fakes. “The Election Coverage Summit is an essential forum for those committed to delivering trusted news during this critical time,” the release said.

Former President and current Republican Presidential Nominee Donald Trump referred to ABC News as “ABC FAKE NEWS” in a post on Truth Social Monday and reportedly called ABC “the single worst network for unfairness” in a campaign appearance the same day. He said ABC “really should be shut out” of hosting presidential debates and suggested he could pull out of his scheduled Sept. 10 debate on the network against Vice President Kamala Harris, the Democratic presidential nominee. “Why would I do the Debate against Kamala Harris on that network?” the Truth Social post said. While in office and on the campaign trail, Trump has called for FCC action against networks and media outlets over their news content (see 2401170050). Monday, Trump also referenced an incident during the 2016 election where current ABC News contributor Donna Brazile, then Democratic National Committee interim chair, improperly aided Hillary Clinton in a CNN town hall, and reports that Disney executive Dana Walden is a friend of Harris'. “Will panelist Donna Brazil [sic] give the questions to the Marxist Candidate like she did for Crooked Hillary Clinton? Will Kamala’s best friend, who heads up ABC, do likewise.” In a later post on Truth Social, Trump also said the “FAKE NEWS MEDIA REMAINS SILENT IN ORDER TO PROTECT THE WORST ADMINISTRATION IN THE HISTORY OF OUR COUNTRY.” Disney and Harris's campaign didn't comment.

The FCC Media Bureau extended commenting deadlines for the agency’s NPRM on AI political ad disclosures, but the extension is not as long as NAB and the Motion Picture Association requested (see 2408120034). Comments are now due Sept. 19 and replies Oct. 1; the trade groups wanted them pushed to Oct. 4 for comments and Nov. 4 for replies. “We find that an extension of the comment and reply comment deadlines by 15 days and 22 days, respectively, (rather than the 30 days and 45 days requested by the Joint Filers) is sufficient to allow for the preparation of meaningful comments and reply comments,” a Media Bureau order said Thursday. Although some were concerned that the FCC was aiming an eventual rulemaking on AI political ads to be effective for the 2024 presidential election, the extension appears to make that impossible. Election Day is Nov. 5.

The FCC Media Bureau rejected eight Texas low-power FM applications that were filed on behalf of separate outreach organizations but appeared connected to a single church, said a letter in Monday's Daily Digest. The LPFM window rules require applicants to certify that they don’t have other attributable broadcast interests, including LPFM applications. “The many commonalities among the Applications -- in particular, the common use of broadcast facilities and headquarters, contact information, and mission statements -- suggest a significant degree of organizational interconnectedness,” Audio Division Chief Albert Shuldiner wrote in the letter dismissing the applications. The applications were on behalf of individual outreach organizations for the Christian Life Church in Lubbock, Texas. LPFM entity REC Networks filed informal objections noting connections between the groups. The outreach groups argued their applications were allowed under LPFM rules that prevent local chapters of large organizations from being considered attributable to the larger group if the local chapters are “separately incorporated” with “a distinct local presence and mission.” The outreach groups aren’t separately incorporated and their use of shared addresses and facilities shows they don’t have a distinct local presence, the Media Bureau said. They also failed to show they had available broadcast sites, the letter said.