The FCC Media Bureau’s Standard/Tegna hearing designation order is “inappropriate,” based on issues outside the agency’s purview, and Congress should act, said NAB CEO Curtis LeGeyt in remarks at NAB’s State Leadership Conference Tuesday (see 2302270066). The HDO sets a precedent expanding the reasons the FCC could refer a deal to an administrative law judge, attorneys and industry officials told us. Congress should act to codify the agency’s 180-day merger shot clock and define what constitutes the public interest in an FCC transaction review, LeGeyt said. The FCC’s current public interest standard has been interpreted to allow the agency “to extract ad hoc concessions whether or not they fall within the FCC's expertise or mandate," LeGeyt said.

Standard General founder Soohyung Kim is “optimistic” regulators will approve the company's proposed $8.6 billion buy of Tegna before Feb. 22, the merger agreement date on which Tegna can choose to pull out of the deal or trigger a 50% increase in the ongoing ticking fee, increasing the purchase price, he said on a press call Monday. Friday was the end of an FCC comment period on concessions offered by Standard (see 2301170064), and the company told the agency it doesn’t object to those concessions being codified as merger conditions, though it resisted requests from MVPDs and public interest groups. New Tegna would be the nation’s second-largest broadcaster by revenue, Kim said.

Procedural concerns could complicate a case at the 2nd U.S. Circuit Court of Appeals on a New York law requiring affordable broadband. At oral argument Thursday in Manhattan, Judge Richard Sullivan grilled parties on a procedural maneuver they used to move the case to the 2nd Circuit from the trial court. Sullivan asked New York’s attorney tough questions on the state’s argument that its law isn’t preempted.

Procedural concerns could complicate a case at the 2nd U.S. Circuit Court of Appeals on a New York law requiring affordable broadband. At oral argument Thursday in Manhattan, Judge Richard Sullivan grilled parties on a procedural maneuver they used to move the case to the 2nd Circuit from the trial court. Sullivan asked New York’s attorney tough questions on the state’s argument that its law isn’t preempted.

Consumers’ Research filed another legal challenge to the FCC’s Universal Service Fund, this time against the Q1 2023 contribution factor, in the 6th U.S. Circuit Court of Appeals. The group has another challenge in the 6th Circuit against the Q4 2021 contribution factor, plus a case in the 5th Circuit against the Q1 2022 factor, and a challenge in the 11th against the Q4 2022 factor. Oral argument was held in the 5th Circuit case earlier this month (see 2212060070), and the FCC filed a response brief in the 11th Circuit last week (see 2212230007). The latest filing takes a similar tack to Consumers’ Research’s other cases, arguing that the USF contribution factor is an unconstitutional tax because it's imposed by the FCC rather than Congress, and that the FCC has violated the Administrative Procedure Act. The group is likely challenging the contribution factor in the same circuit as an ongoing challenge to provide a backstop if the other 6th Circuit case is dismissed or rejected for narrow procedural reasons, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman, who has filed in support of the FCC in other Consumers’ Research cases. Consumers’ Research didn’t comment. The new case likely won’t be briefed or move forward while the other 6th Circuit one is ongoing, Schwartzman said.

Consumers’ Research's challenges to several of the FCC’s Universal Service Fund contribution factors may be an attempt to force a decision by the Supreme Court on the nondelegation doctrine, said academics and attorneys in interviews. Some said the group brought the exact same argument in multiple courts of appeals to forum shop and engineer a circuit split.

Industry officials and broadband experts said the FCC will likely get many challenges to its broadband availability maps and broadband serviceable location fabric (see 2211100072). Most challenges will likely come from providers rather than consumers, we’re told.

Standard General founder Soo Kim said filings from the Communications Workers of America’s NewsGuild sector’s attorneys David Goodfriend and Andrew Schwartzman and CEO Jon Schleuss opposing the Standard/Tegna deal were "sexist and racially charged ad hominem attacks.” A Standard General news release Monday highlighted statements in NewsGuild filings warning of “anonymous foreign investment” in newsrooms and questioning whether the deal increases ownership diversity since Kim “is not barred by his race from becoming a successful entrepreneur” and Standard CEO Deb McDermott “is not barred by her gender to be selected to run a large corporation.” “To be clear, I am ethnically Korean. And I am a proud American citizen,” said Kim in the release. “These three men are attempting to define what constitutes a minority or what is the right kind of diversity -- this is offensive and inappropriate.” It's “beyond the pale for Schleuss, Goodfriend, and Schwartzman to use my ethnicity to postulate theories of my being an agent of foreign ownership,” Kim said, noting he already owns multiple radio and TV stations. “Whatever we have to say will be in what we file with the Commission,” emailed Schwartzman, who's also senior counselor at the Benton Institute for Broadband & Society, when asked for comment. Standard is “confident” the deal complies with all regulations, the release said. “We have submitted 3 million documents and over 12 million pages of records and have nothing but respect for the regulatory process,” the release said. “We are confident that the public statements from these three men will be seen for what they are -- sentiments that have no place in America today.”

5G for 12 GHz Coalition leaders told reporters Thursday they still expect the FCC to act soon on changing the rules for the 12.2-12.7 band to allow two-way use for 5G. The officials hope the FCC will also soon approve a grant of special temporary authority allowing real-world tests. They noted the coalition now includes 38 companies and organizations.

The FCC “reopened” for in-person meetings in June, but the agency hasn’t seen a wholesale return to them, and most meetings between staff and industry remain virtual, as they have been since the start of the COVID-19 pandemic in March 2020, based on a review of ex parte filings and interviews with lawyers and FCC officials. Some expect more in-person meetings starting after Labor Day, depending on what happens on COVID infection rates during August.