D.C. Circuit Denies Standard/Tegna Mandamus Relief

With the court declining to compel the FCC to act quickly, broadcasters Standard General, Tegna and Cox Media Group are running out of options for getting the deal approved before its financing runs out May 22, said academics and communications attorneys. The companies technically could pursue en banc appeals of the court orders or seek certiorari before the U.S. Supreme Court, but those are extreme long shots that would likely take time that the transaction doesn’t have, attorneys told us

The broadcasters “have not demonstrated that respondent has unreasonably delayed in acting on their applications,” ruled Judges Cornelia Pillard, Michelle Childs and Florence Pan. “Nor have they shown that respondent has a ‘crystal clear’ duty to rule on their applications without resort to a hearing.” The order’s unpublished status, terseness and the language used are very standard in mandamus denials, and suggest the court didn’t see the petition as novel or rising to the very high level required for mandamus, said former NAB General Counsel Jack Goodman.

Mandamus petitions often require a matter to have languished for years to be granted, attorneys told us. In a 1984 case cited in the order, Telecomms. Research & Action Center v. FCC, the D.C. Circuit ruled the courts should defer to agencies on how long it takes them to get their work done, said Linda Jellum, administrative law professor at the University of Idaho College of Law.

Standard General and the FCC didn’t comment on the ruling. “Standard General's desperate attempt to salvage its TEGNA deal never had a chance,” emailed Andrew Schwartzman, who represents deal opponents and Communications Workers of America's NewsGuild and National Association of Broadcast Engineers and Technicians sectors. “This should be the end of the road; Standard General says that it can't extend its financing beyond May 22, and the FCC cannot possibly complete its ongoing hearing by then.”

The order lists the decision as unanimous, likely a bad sign for a possible en banc appeal, attorneys told us. Still, the broadcasters could attempt appeal because they are bound by provisions in their merger agreement to make every attempt to get regulatory approval for the transaction. After the unsuccessful Sinclair/Tribune deal was designated for hearing and broke up, Tribune sued Sinclair for breach of contract in 2018 and argued Sinclair hadn’t sufficiently strived to allay regulators concerns. That case was resolved in 2020 with a settlement involving a $60 million payout and the sale of a TV station to Tribune’s then-new parent company Nexstar. Standard/Tegna could lead to similar litigation, attorneys told us.

Standard Managing Partner Soohyung Kim told us April 17 he still has hopes that three FCC commissioners could force a vote on the deal before May 22, short-circuiting the ongoing hearing proceeding. At the FCC commissioners' Thursday’s FCC meeting, demonstrators organized by the Korean American Association of Greater New York (KAAGNY), Arc of Justice and Protecting Our Future protested outside calling on the agency to hold a vote. The protest was intended to “call attention to the lack of diversity in media ownership and the FCC’s efforts to stonewall Standard General’s proposed acquisition of TEGNA,” said an email advisory seeking participants for the demonstration. Charles Yoon, president of KAAGNY, wrote the FCC in March to say that letting Kim control media outlets would support the cause of diversity. Arc of Justice has also been supportive of the deal before the agency. "This new company will undoubtedly breathe a new breath of life into a culturally antiquated industry devoid of the true riches born out of a real multicultural establishment," wrote President Kirsten John Foy in July.

The deal “would increase minority ownership of commercial TV stations by almost 300%, said the advisory. "Despite being on the record calling for more diversity in media ownership, the FCC has yet to hold a vote,” it said. KAAGNY, Arc of Justice and Protecting Our Future didn't respond to requests for comment. Commissioner Brendan Carr said Thursday that he doesn’t believe commissioners can vote on an item that the FCC chair hasn’t brought before them (see 2304200060).

The broadcasters are also pushing to speed up the FCC’s hearing process (see 2304200060). Last week they requested a vastly abbreviated briefing schedule that would likely require waivers of some FCC procedural rules to enact but could lead to a decision by May 22. Scheduling proposals from the unions and FCC Enforcement Bureau would take the hearing proceeding well into 2024.

An initial status conference to set the schedule will be held April 26. Kim said Tuesday the May 22 expiration date can’t be shifted because the transaction’s financing was “irreplaceable cheap” and based on economic conditions and interest rates that no longer exist. Under the agreement, Tegna will pocket a $136 million payout if the deal dissolves, but Kim said that Tegna shareholders -- Standard being the largest -- will lose $2 billion on its collapse. Tegna’s stock was down 3.81% Friday afternoon.