Public interest groups pressing the U.S. Court of Appeals for the D.C. Circuit to unwind the Nexstar-TEGNA merger are accusing the FCC of deliberately running out the clock on judicial review, and are asking the court to either force the full commission to act immediately or hold their case in suspension while a California district court’s preliminary injunction remains in effect.
The reply brief, filed Monday by Democracy Forward Foundation on behalf of Free Press and allied appellants, centers on a statutory obligation to act on pending applications for review of Media Bureau orders that the appellants say the FCC has not met.
The bureau completed its review of the Nexstar-TEGNA license transfer in 108 days. Asked by the D.C. Circuit in an April 28 order to state when it expects to satisfy that obligation, the commission offered only that it “expects that it will be able to act on the application for review this year,” without explaining why its review would require more than twice the time the bureau needed.
In their filing, the appellants call that answer legally insufficient.
By prolonging its review without committing to a timeline, the brief argues, the FCC denies challengers either a favorable ruling or the opportunity to contest an unfavorable one — leaving the bureau’s order operative and effectively final while appellate review stalls. The filing also notes the commission has not stayed the bureau’s order, and has instead “publicly celebrated the transfer,” citing an FCC release framing the merger approval as advancing its media policy goals of localism, diversity, and competition.
Nexstar’s conduct after the bureau’s order sharpens the appellants’ urgency argument. Within 15 minutes of approval, Nexstar publicly announced the deal was complete. The U.S. District Court for the Eastern District of California issued a preliminary injunction on April 17, requiring Nexstar to hold TEGNA’s assets and licenses separate, but the appellants warn that protection is not durable. Nexstar is actively appealing it in the Ninth Circuit.
The brief identifies what it calls a structural contradiction in Nexstar’s litigation posture. In California, Nexstar invoked the FCC’s approval order to oppose the preliminary injunction. In the D.C. Circuit, Nexstar now relies on that same injunction to argue the mandamus petition is premature. The appellants contend that Nexstar should not be permitted to use the FCC’s order to oppose that injunction while simultaneously relying on the injunction to shield the order from review.
Should Nexstar prevail in the Ninth Circuit, the brief warns, it would potentially be months or longer before the FCC acts — and given Nexstar’s documented haste, that window could allow the companies to combine in ways that would be impossible to undo.
As an alternative to mandamus, the appellants ask the court to hold the petitions in abeyance, retain jurisdiction, and require the FCC to file status reports every 30 days. They also propose an automatic administrative stay of the FCC’s order triggered if the DirecTV preliminary injunction ceases to be in effect.
