Monty Tayloe

The FCC misrepresented the Standard/Tegna deal as complex and refused to engage with the broadcasters, and Friday’s Supreme Court opinion on agency adjudications underscores that the hearing process is unconstitutional, said Standard General, Cox Media Group and Tegna in their final response filing supporting their petition for mandamus at the U.S. Court of Appeals for the D.C. Circuit (see 2304110072).

The complicated series of transactions in the Standard/Tegna deal and the companies’ own submission of “narrowly crafted” concessions at a “late stage” of the process led to the protracted review of the purchase and subsequent hearing process (see [Ref;2304040063]), said the FCC in a partially redacted response filing Tuesday (docket 23-1084) with the U.S. Court of Appeals for the D.C. Circuit. The broadcasters' response is due Friday.

The U.S. Court of Appeals for the D.C. Circuit dismissed the Standard/Tegna broadcasters' appeal of the FCC’s hearing designation order (HDO), but expedited their petition for mandamus relief. It also ordered the FCC to respond to the petition by April 11, said an order Monday.

The FCC ignored precedent, the Administrative Procedure Act and its own rules when it issued the 2020 wireless infrastructure declaratory ruling (see 2303100069), said the League of California Cities (LOCC), the cities of Boston, Los Angeles and Seattle, and numerous other entities in two reply briefs filed with the 9th U.S. Circuit Court of Appeals.

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 will take the FCC to court unless it delays the 2022 quadrennial review and concludes the 2018 QR, said an ex parte filing Wednesday and broadcast industry officials in interviews, “The Commission has no lawful basis for withholding the belated 2018 review, and that failure independently threatens the viability of the 2022 review,” said the filing in docket 22-459. Multiple broadcast attorneys said the trade group is resolved to pursue the matter in court and without FCC action NAB will petition the U.S. Court of Appeals for a writ of mandamus. The filing gives the agency until April 12 to toll the 2022 QR proceeding and conclude the 2018 iteration. It’s not likely the FCC will agree to the request, attorneys said.

Standard General, Tegna and Cox Media Group, in court filings Monday challenging the FCC’s hearing designation order (HDO), targeted the FCC’s merger review process, Holly Saurer’s dual role as Media Bureau chief and as Chairwoman Jessica Rosenworcel’s media adviser, and the FCC’s administrative law judge. The companies are seeking a ruling from the U.S. Court of Appeals for the D.C. Circuit by April 21.

NAB will take the FCC to court unless it delays the 2022 quadrennial review and concludes the 2018 QR, said an ex parte filing Wednesday and broadcast industry officials in interviews, “The Commission has no lawful basis for withholding the belated 2018 review, and that failure independently threatens the viability of the 2022 review,” said the filing in docket 22-459. Multiple broadcast attorneys told us the trade group is resolved to pursue the matter in court, and without FCC action NAB will petition the U.S. Court of Appeals for a writ of mandamus. The filing gives the agency until April 12 to act to toll the 2022 QR proceeding and conclude the 2018 iteration. It’s not likely the FCC will agree to the request, attorneys told us. The agency didn't immediately comment.

U.S. District Judge Terry Doughty for Louisiana's Western District in Monroe largely denied a motion Monday to dismiss a censorship complaint from the attorneys general of Missouri and Louisiana seeking an injunction against President Joe Biden, several federal officials and companies.

U.S. Court of Appeals for the D.C. Circuit judges appeared skeptical Friday of separate oral arguments from NAB, the National Religious Broadcasters Noncommercial Music License Committee and SoundExchange against the Copyright Royalty Board’s ruling on rates for webcast music (dockets 21-1245 for NAB, 21-1243 for NRBNMLC, and 21-1244 for Sound Exchange). Judge Patricia Millett told SoundExchange's attorney that evidence in the record "blows up" his arguments and had a back-and-forth disagreement with another lawyer over whether asking the court to calculate a rate that wasn't in the record was permissible. “Should we be doing that as a court?” Judge Florence Pan asked in response to an NRB argument that the court should use data in the record to calculate an extrapolated royalty rate. “Are you asking us to make a fact-finding that the board did not?” Millett added.