The U.S. Court of Appeals for the District of Columbia Circuit has been asked to dismiss the appeals filed in the combined Free Press v. FCC case designed to thwart Nexstar Media Group’s regulatorily approved merger with TEGNA by not only Nexstar, but by the Commission itself.
Twin filings made Friday (6/5) with the D.C. Circuit share the belief that the judicial body lacks jurisdiction, reiterating previous statements suggesting this is the case.
For Nexstar’s legal counsel at Wiley Law, the appellants in the case, which include the Broadband Communications Association of Pennsylvania, seek to challenge a Media Bureau order before the Commission has resolved its application for review.
That’s a narrative shared by the Commission, which insists that it has until the end of the year to consider a full vote — even as it has demonstrated that, under delegated authority, a Media Bureau decision may stand as final. This precedent is what triggered a nearly immediate closing by Nexstar of its rule-busting merger with TEGNA, as both the Bureau and the Justice Department gave their regulatory blessings. For the FCC, approval came with necessary waiver requests by Nexstar.
That’s why Wiley attorneys told the D.C. Circuit that the appellants are not appealing an “order of the Commission” and instead seek to appeal an “order of the Media Bureau.”
Vigilantly fighting these waivers, on the unproven grounds that it will be forced to pay higher retransmission fees and thus charge its customers more per month to make up the difference, is DirecTV.
As they see it, Wiley, the FCC and Nexstar are playing a semantics game. And, if the Commissioners do not render a decision, with no decision “of the Commission” in the Nexstar-TEGNA merger, what value does the Bureau Order carry?
That’s a question that the D.C. Circuit may be look at intensely, offering this basic question: If the Commission didn’t offer a decision on the merger, as Nexstar’s own legal counsel is presenting to the court, did Nexstar jump the gun and merger with TEGNA too soon? Or, did it do exactly as it is legally able to do based on the Bureau Order, which is binding pending any possible Commission review?
The latter interpretation is what Nexstar and the FCC each seek codification of from the Court.
In the Commission’s case, they insist the appellants challenging the Bureau decision “do not dispute that under binding Circuit precedent, ‘a petition for review filed after a bureau decision but before resolution by the full Commission is subject to dismissal as incurably premature.’”
That precedent, the Commission concludes, “requires this Court to grant the FCC’s motion and dismiss this case.”
And, contrary to the appellants assertion, “the mere filing of an application for review by appellants does not vest this Court with jurisdiction to review an order issued by the FCC’s Media Bureau.”
