With the granting of the necessary waivers, then-FCC Media Bureau Chief Erin Boone gave her blessing to a rule-busting combination of Nexstar Media Group and TEGNA — a deal that would put Nexstar above Congressionally mandated national ownership reach limits. Nexstar and TEGNA swiftly moved to close the transaction based on Boone’s delegated authority.
Now, Nexstar finds itself not only appealing a California Eastern District Court’s preliminary injunction preventing it from integrating TEGNA’s assets, but also defending its deal in the D.C. Circuit. And, it may have an ally in the Commission itself.
How so? The FCC’s General Counsel and his legal team have presented the argument that the D.C. appeals court doesn’t have jurisdiction in the matter. Why? Boone’s approval was not a final agency action.
“This Court lacks jurisdiction to review orders issued by the FCC’s staff, including the Media Bureau’s order in this case. Accordingly, the Court should grant this motion and dismiss these appeals,” says FCC General Counsel D. Adam Candeub, Associate General Counsel Jacob Lewis, and Counsel William Scher and James Carr.
They made their argument in a May 5 Motion to Dismiss the case that sees Broadband Communications Association of Pennsylvania and Free Press as the petitioners in a case brought against the Commission squarely focused on Boone’s green light to the Nexstar-TEGNA merger. The key argument: they wish to appeal an order issued by the FCC’s Media Bureau, and the court lacks jurisdiction.
Does it, given the delegated authority given to the Media Bureau on issuing various types of orders over the years? Candeub and his team argue yes, as FCC rules state “[a]ny person aggrieved by any action taken pursuant to delegated authority may file an application requesting review of that action by the Commission.”
Thus, Free Press and the BCAP should have gone that route and filed an application for review, rather than to the D.C. circuit, the FCC’s legal counsel state.
In fact, the FCC legal team says, the day after the Bureau Order was issued, appellants filed an application for review with the Commission. That application remains pending — and some have question whether or not that pending status will be indefinite, or see the full Commission eventually codify the Media Bureau decision in a partisan 2-1 vote led by Chairman Brendan Carr and with the support of Commissioner Olivia Trusty.
The BCAP went to the D.C. circuit with a coalition of appellants one day after the filing the AFR with the Commission. Two days later Free Press led a second group of appellants. The D.C. court consolidated the appeals.
Emergency motions for stay were denied by the D.C. court, citing the California court ruling and appeal by Nexstar to the Ninth Circuit in a case that sees DirecTV in another legal battle with the company founded three decades ago by Perry Sook.
With Candeub and his team insistent that “Congress did not intend that the court review a staff decision that has not been adopted by the Commission itself,” Nexstar joined the FCC as an intervenor in its motion to dismiss, citing the reasons articulated in its opposition to the appellants’ emergency motions and what the Commission states in its filing — it is up to Chairman Carr and Commissioners Trusty and Anna Gómez to consider the appeal, not the judicial system.
