Monty Tayloe

The FCC hasn’t made an effort to meet the four-year due date for its 2018 quadrennial review, and its arguments that Congress didn’t specify a deadline (see 2308080062) are “a recipe for eternal stasis” and would “justify perpetual delay,” said NAB in a response filing in its mandamus proceeding at the U.S. Court of Appeals for the D.C. Circuit (docket 23-1120) (see 2304250029). “It is unreasonable for the Commission to have sat on its hands for years.”

The U.S. Court of Appeals for the D.C. Circuit unanimously upheld Friday the Copyright Royalty Board’s ruling on rates for webcast music for 2021-2025, rejecting appeals from NAB, the National Religious Broadcasters Noncommercial Music License Committee and SoundExchange.

The FCC’s 2022 $518,000 forfeiture order against Gray Television over the 2020 buy of another broadcaster’s CBS affiliation in Anchorage doesn’t violate the First Amendment and doesn’t amount to the creation of new regulations without notice, the agency said in a brief filed Monday in Gray’s challenge of that forfeiture (docket 22-14274) in the 11th U.S. Circuit Court of Appeals (see 2301040059).

DirecTV’s “hollow” antitrust lawsuit against Nexstar and sidecar companies Mission Broadcasting and White Knight Broadcasting should be dismissed for lack of standing, said the broadcasters Monday in a heavily redacted motion to dismiss filed in U.S. District Court in the Southern District of New York (docket 1:23-cv-02221). DirecTV never paid "the purportedly inflated retransmission consent fees,” said the filing. Because the parties never reached agreement on retransmission consent renewals, “it is impossible to know that they actually would have done so, much less what the rate and non-rate terms would have been, whether that rate would have exceeded market benchmarks,” the broadcasters said. DirecTV filed the lawsuit as a retransmission consent negotiating tactic, and also lacks standing because it can’t show that the court can do anything to redress the matter, the broadcasters said. A judgment in the case would only enjoin Nexstar’s relationship with Mission and White Knight, not compel DirecTV to carry them, said the motion. DirecTV therefore hasn't pleaded, and can't plead, "facts demonstrating that success in this lawsuit will redress the harm it alleges,” said the filing. Even if there were collusion between Mission and White Knight, it would be irrelevant because the companies don’t own top-four stations in the same market, the broadcasters said. “A common, industrywide, and FCC-regulated business practice cannot, in and of itself, support an inference of unlawful conspiracy,” the filing said.

An upcoming Supreme Court decision in Biden v. Nebraska, which concerns the White House’s student loan forgiveness program, could clarify to what degree the court’s major questions doctrine (see 2302080064) could be used to challenge the actions of federal agencies such as the FCC, said HWG's Chris Wright and FCC Deputy General Counsel Jacob Lewis Thursday on a virtual FCBA panel.

Cox, CBS and Fox agreed to a $48 million settlement with advertisers in a long-running antitrust lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal, said a motion filed last week in U.S. District Court in Chicago (docket number 1:18-cv-06785). Under the settlement, Cox, CBS and Fox will provide information and testimony that could help the advertisers as the litigation continues against broadcasters that aren’t part of the settlement, such as Nexstar, Sinclair and Gray Television. The settling defendants will provide “meaningful cooperation, which will assist Plaintiffs in the prosecution of their claims against the Non-Settling Defendants,” said the motion.

The U.S. Supreme Court shouldn’t grant certiorari in administrative law case SEC v. Jarkesy because the SEC and the U.S. solicitor general produced scant evidence the 5th U.S. Circuit Court of Appeals ruling should be overturned, said the respondents in a brief Tuesday. The case could have implications for federal agencies that use administrative law judges, including the FCC, attorneys and academics told us. “Pity the president who resolves to fire an ALJ and quickly encounters these multiple barriers that make it all but impossible to command his own subordinates,” said the respondent brief.

The U.S. Court of Appeals for the D.C. Circuit has denied the Standard/Tegna broadcasters’ petition for writ of mandamus, according to a brief, unpublished decision in docket 23-1084 Friday morning.

Protesters called on the FCC to hold a vote on the Standard/Tegna deal Thursday morning at a demonstration outside FCC headquarters, prompting the agency to remind open meeting attendees of the agency’s rules. Though Standard General Managing Partner Soohyung Kim has said he believes three commissioners can force a vote on the deal, one of those commissioners seen as supportive of the transaction said Thursday he doesn’t believe that is possible. “There is no mechanism in FCC rules for non-chair commissioners, no matter how many of them are in support of a particular position, to force a vote on anything,” Commissioner Brendan Carr said in a news conference.

Standard General received only 15 to 20 minutes' notice from the FCC that the agency was about to issue a hearing designation order, and Standard doesn’t plan to go away if the Tegna deal falls apart, Managing Partner Soohyung Kim said in an interview Monday. “I don’t think a regulator should dislike the industry it regulates,” he told former FCC Commissioner Mike O’Rielly during an onstage Q&A at the NAB Show Tuesday.