NCTA is seeking to intervene in support of the FCC and against four petitions for review consolidated in the 8th U.S. Circuit Court of Appeals challenging the FCC’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act, said NCTA's unopposed motion Monday.
The ABC, CBS, NBC and Fox affiliates associations seek leave to intervene in support of the four petitions for review consolidated in the 8th U.S. Circuit Court of Appeals that challenge the FCC’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act (see 2403050075), said their unopposed joint motion Friday.
A combined $1.8 million proposed forfeiture for Nexstar and sidecar operation Mission broadcasting over Mission’s station WPIX New York will likely create uncertainty about similar arrangements that other broadcasters use, though attorneys and the FCC say Thursday’s notice of apparent liability is narrowly targeted. “We stress that the decision we reach today is limited to the facts before us and the relationship between Nexstar, Mission, and WPIX,” said the NAL. On the other hand, “If you’re a broadcaster with a sidecar, you’re saying ‘uh oh,’” said Holland & Knight attorney Charles Naftalin. Nexstar said it will dispute the enforcement action “vigorously.”
The full FCC -- with Commissioner Brendan Carr concurring in part -- proposed a $612,395 forfeiture against Nexstar for violating the 39% national ownership cap and taking de facto control of Mission Broadcast’s WPIX New York station without agency permission, said a notice of apparent liability issued late Thursday. The NAL also proposes requiring Mission within 12 months to either divest WPIX to a third party or apply to the FCC to sell it to Nexstar, which in turn would have to divest stations to come in under the national cap. The FCC “is prohibited from allowing a company to own or control broadcast stations that in total reach more than 39 percent of the national television audience,” said Chairwoman Jessica Rosenworcel in a brief statement released with the NAL. “The record here reflects a situation where a company exceeds this threshold. Unless and until Congress changes this law, it is the responsibility of this agency to enforce it.” Nexstar is a client of Wiley, Commissioner Anna Gomez's former law firm. Late last month, she received an ethics waiver that allows her to vote on enforcement items involving Wiley clients (see 2403150055). Nexstar’s relationship with Mission and WPIX was the focus of multiple court and FCC proceedings (see 2402130023), one of which was recently decided in Nexstar’s favor (see 2403210027). “NALs are not final decisions on the merits,” said Carr’s concurrence, in which he objected to the NAL citing aspects of Nexstar's relationship with Mission, which past FCCs approved, as part of the company's violations. “And I will keep an open mind as the FCC reviews the record in response to this document. Part of that will require the FCC to ensure that any remedies the agency finds necessary are ones that are appropriate given the procedural posture of this enforcement action.” Nexstar is “extremely disappointed in today’s action by the Federal Communication Commission regarding our relationship with WPIX-TV and we intend to dispute it vigorously,” said CEO Perry Sook in a release. “We believe the FCC has been misled by the often distracting noise in the media ecosphere and that it has completely misjudged the facts.”
An FCC proposal requiring that MVPDs reimburse customers for programming affected by retransmission consent blackouts (see 2401170072) is outside the agency’s authority, unworkable, and would lead to higher prices for subscribers, said MVPDs and MVPD trade groups in comments filed in docket 24-20 by Friday’s deadline. The rebate proposal would be an “unnecessary government intrusion into already difficult negotiations” and “disrupt the marketplace by placing the government’s thumb on the scale to the detriment of cable subscribers,” said NCTA.
NAB filed a challenge Friday to the FCC's Dec. 26 quadrennial review order in the U.S. Court of Appeals for the D.C. Circuit, joining a number of similar challenges filed in other circuits (see 2402250001). The cases are all to be consolidated in the 8th Circuit under the order of the Judicial Panel on Multidistrict Litigation (see 2403050075). The FCC failed to meet its statutory obligation to review ownership rules every four years, exceeded its authority by tightening rules rather than relaxing them, and violated the First Amendment by limiting stations from airing multiple top-four networks on multicast channels, alleged NAB in its petition for review (docket 24-1055). The new rules are content-based restrictions on television stations outside the FCC's authority, said the petition. The FCC also ignored the will of Congress and violated the Administrative Procedure Act by not considering evidence in the record on competition faced by broadcasters. “The record shows that advertisers are increasingly diverting resources away from local radio and television stations in favor of digital promotions,” the petition said. “But the Quadrennial Order disregards these bedrock changes in the media and advertising landscape.” The court should vacate and set aside the order, NAB said.
NAB and backers of the AM Radio for Every Vehicle Act (HR-3413/S-1669) are continuing to push for the bill’s passage, possibly by attaching it to a future omnibus appropriations package. The bill's supporters argue attaching the AM radio legislation to an omnibus appropriations package could help it overcome headwinds that have prevented its legislative approval since early 2023 (see 2401050065). CTA and other opponents of the measure argue it should go through a normal legislative process.
The legal battle over the FCC’s 2018 quadrennial review order appears headed to the 8th U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation randomly selected that circuit from the three where petitions for review were filed, said a consolidation order Tuesday (see 2402250001). The 8th Circuit was the venue for an appeal filed by Zimmer Radio. The other possible circuits in the lottery were the 5th and 11th, where appeals were filed by Nexstar and Beasley Media, respectively. All previous QR challenges were decided by a panel in the 3rd Circuit, but after a 2018 U.S. Supreme Court decision, that panel no longer has jurisdiction in the matter. The 5th, 8th and 11th circuits are seen as having conservative leanings, while the 3rd Circuit is considered more favorable to parties seeking to uphold regulations. Parties in the case could still seek to have it moved to a different circuit, but attorneys familiar with appellate procedure told us that rarely occurs. With the circuit for the case decided, it's likely that more challenges to the order will be filed, including an anticipated one from NAB, attorneys told us. Only circuits where appeals were filed in the 10 days after the order appeared in the Federal Register are added to the Judicial Panel on Multidistrict Litigation’s lottery.
The FCC faces three petitions for review, all filed Friday, in separate circuits, challenging the lawfulness of the commission’s Dec. 26 quadrennial review order for allegedly violating Section 202(h) of the Telecommunications Act. Nexstar Media Group filed its petition (docket 24-60088) in the 5th U.S. Circuit Court of Appeals, Beasley Media Group and Tri-State Communications filed their joint petition (docket 24-10535) in the 11th Circuit, and Zimmer Radio of Mid-Missouri filed its petition (docket 24-1380) in the 8th Circuit.
The FCC should create an Office of Civil Rights, The Leadership Conference on Civil and Human Rights Media and Telecommunications Task Force told FCC Chairwoman Jessica Rosenworcel in a meeting last week, according to an ex parte filing posted Thursday in docket 22-459. The existing Disability Rights Office and Office of Native Affairs and Policy perform important functions but are focused on different tasks than an Office of Civil Rights would be, the filing said. “Resolving individual disputes or encouraging participation” are different matters from “legal and quantitative analysis that could proactively identify systematic problems” and addressing those problems with rulemakings and enforcement actions, the filing said. “Intergovernmental consultation may belong in the Consumer and Governmental Affairs Bureau, but civil rights enforcement does not,” the filing said. The Leadership Conference also called on the FCC not to leave the 2022 quadrennial review open past 2024, keep ISPs active in encouraging digital equity, and endorse the FCC’s collection of workforce diversity data. Representatives from groups including the Committee for Civil Rights Under Law, Communications Workers of America, National Coalition on Black Civic Participation, National Hispanic Media Coalition and Common Cause also attended.