D.C. Circuit Dismisses Standard/Tegna Appeal, Expedites Mandamus

The appeal’s dismissal is a blow to the embattled Standard/Tegna deal, but the court’s quick action on the mandamus is a signal judges are interested in the matter, attorneys told us. Meanwhile, the broadcasters and the American Television Alliance continued to participate in the FCC’s ongoing hearing proceeding with dueling filings.

An appeal filed after a bureau decision but before “resolution by the full Commission” is “subject to dismissal as incurably premature,” said the two-page order Monday from a three-judge panel of Judges Cornelia Pillard, Michelle Childs and Florence Pan. The court's dismissing the case for being an interlocutory appeal was considered the most likely outcome, attorneys and academics said. Most circuit courts are traditionally hesitant to interfere directly with ongoing proceedings at a regulatory agency, said Linda Jellum, administrative law professor at the University of Idaho College of Law. Standard General didn’t comment.

The mandamus request is seen as having slightly better chances, but not by much. Such petitions are rarely granted, and those involving the FCC traditionally involved matters left to sit for years, said Holland & Knight attorney Charles Naftalin. The drawn-out nature of the FCC’s review process of the deal, many times the 180 days promised by the agency’s merger shot clock, could be persuasive to the court, said Jellum.

The Standard/Tegna petition asks the court to issue a writ ordering the FCC to rule on the applications by April 28. Monday’s order requires the FCC and the union and public interest group intervenors to file a response to the mandamus request by April 11, and the broadcasters must reply by April 14, the order said.

If the court does order the FCC to act, it's considered unlikely the commissioners or Media Bureau would approve the transaction, but a denial would be a final agency action that could then be appealed on more sure footing, attorneys said. For the FCC to approve the deal would likely require Commissioner Geoffrey Starks to split from Chairwoman Jessica Rosenworcel and vote with the FCC’s Republicans, but that’s considered unlikely. A 2-2 tie vote would leave the deal stalled since agency action is required to approve the transfer applications.

With the hearing proceeding’s initial status conference set for April 26, “it is clear that a hearing start date is, in the most optimistic scenario, at least a month away,” said the Standard/Tegna broadcasters in a filing posted in docket 22-162 Tuesday. The broadcasters filed in opposition to motions to strike their application for review of the administrative law judge ruling that the hearing would proceed. Since the hearing process is underway, “immediate review of the HDO by the full Commission will therefore not result in any disruption to the proceeding,” the broadcasters said.

The Media Bureau didn’t ignore FCC precedent when it targeted Standard/Tegna retransmission consent contracts, said ATVA in a filing opposing the broadcaster application for review. “Increases in retransmission consent prices specifically caused by a transaction and likely to be passed along to consumers are” a public interest harm, the MVPD group said. The Media Bureau was correct to direct the ALJ to investigate information sharing about retransmission consent contracts among the deal participants, ATVA said. It “strains credulity” to “imagine that Applicants concocted their four-step transaction with no idea what retransmission consent rates would be upon consummation,” ATVA said.