FCC and Nexstar Call for DC Circuit to Reject Merger Challenges
The FCC and Nexstar called for the U.S. Court of Appeals for the D.C. Circuit to dismiss legal challenges to the Media Bureau’s approval of the Nexstar/Tegna deal in reply filings Friday. It's “binding circuit precedent” that a petition for review filed with the court over a bureau decision before the full commission has acted is “incurably premature,” the FCC said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Under the rules, the filing window for appealing the FCC’s actions to the courts doesn’t open until “public notice is given of [commission] orders disposing of all applications for review,” the agency said. Since it hasn’t acted on the applications for review from Free Press, Newsmax and others, “the Court lacks jurisdiction, and the case must be dismissed.”
The D.C. Circuit should also reject the deal opponents’ petitions for a writ of mandamus to force the FCC to vote on the applications, the commission argued. Mandamus isn’t needed because the FCC has said it will act on the applications for review within the year, and Nexstar is still bound by a hold-separate order from the 9th Circuit, the FCC said. “On appeal, Nexstar and TEGNA have asked the Ninth Circuit to narrow the scope of, but not vacate, the district court’s injunction. ... As a result, even if the companies prevail on appeal, the injunction will remain in place until the completion of the antitrust litigation.”
The D.C. Circuit lacks jurisdiction over the Media Bureau’s order waiving the national TV cap and approving the Nexstar/Tegna deal, Nexstar also said in an intervenor filing Friday asking the court to dismiss the challenge to the merger. The law allows parties to appeal decisions of the commission to the courts, Nexstar said, but “nowhere in any of the responses does any party opposing dismissal explain how an ‘order of the Media Bureau’ is somehow an ‘order of the Commission.’”
Nexstar/Tegna opponents "lob a lot of incendiary rhetoric, but their complaints ultimately boil down to: (1) an FCC bureau took an action that they do not like, and (2) the Commission is not reviewing that bureau action as quickly as they wish it would,” Nexstar argued. While “regulated parties (including Nexstar) often have these sorts of gripes with their regulators,” those complaints don’t equal misconduct that merits court intervention.
The filing also took aim at deal opponents’ arguments that blocking judicial review would set a dangerous precedent. “This Court has enforced this FCC-specific jurisdictional bar for decades, and the sky has not fallen.” In addition, Nexstar said the court should reject DirecTV’s call for reversing a prior decision on whether bureau-level decisions should be automatically stayed when they're appealed. The argument wasn’t made by any party earlier in the case and so is forfeited, Nexstar said. DirecTV’s call for the court to revisit a 40-year-old decision “has no bearing on the issue presented by the motion to dismiss: whether the Court has jurisdiction to review the Bureau’s order at issue,” the FCC said.