Standard General on Tuesday sued the FCC, as it seeks the U.S. Court of Appeals for the District of Columbia Circuit’s intervention in keeping its TEGNA privatization effort from disintegrating — or, months from now, getting a denial or approval decision from the Presiding Judge asked to review the acquisition under the leadership of a Commission Administrative Law Judge.
To be clear, the ALJ proceeding is wholly different from judicial review. As one veteran D.C. communications attorney explains, “The Judge has not been asked to reach any conclusions at all.”
That’s perhaps key to understanding what the FCC seeks to conduct through its hearing process in front of its ALJ, Jane Hinckley Halprin, and what TEGNA wants the D.C. Federal Appeals Court to decide.
For Halprin and the Presiding Judge involved in the FCC’s Hearing Designation Order, the arbiters have been “sent on a mission to review issues that have no precedent,” the Washington, D.C. communications attorney, who requested anonymity, tells RBR+TVBR.
The issues under the ALJ’s microscope come down to whether the retransmission consent fees resulting from TEGNA’s merger with Standard Media and its common ownership interest in Cox Media Group may raise prices for consumers. The other issue in front of the ALJ is whether there are planned employment cuts that will somehow decrease local news and information. Standard General in December 2022 “volunteered” to the FCC that it is willing to report any newsroom layoffs that might occur after a two-year period in which no reduction in force initiative would transpire.
In the view of the longtime D.C. lawyer, “the FCC has never seen either of these goals — protecting consumers from cable price increases or assessing possible changes in how a broadcaster will cover its local community — as basic qualifications issues to be assessed in reviewing a proposed sale.”
The attorney points to the Communications Act, which states that the FCC is not allowed to look at whether some other buyer might better operate the stations. “It is only allowed to determine if the proposed licensee has the basic qualifications to be a licensee, which really has not been challenged here,” the attorney says.
Integral to understanding the purpose of the HDO is, again, the fact that the Administrative Law Judge has not been asked to reach any conclusions.
So, then, what is the point of the hearing?
“She is just told to conduct a hearing on these issues and report back to the Media Bureau as to her findings,” the D.C. attorney explains. “Normally, an ALJ will look at the disputed facts, resolve those facts, and then decide whether or not the application should be granted based on her findings.”
But, the attorney adds, that is not what is happening here. “The hearing is supposed to happen and then, after its done, it goes back to the Media Bureau to make the ultimate conclusion.”
Standard General believes that decision has already been made, calling the Hearing Designation Order a Media Bureau “pocket veto” of its TEGNA acquisition in a statement released on Tuesday in connection to its lawsuit against the FCC.
Thus, a 57-page Mandamus Request was submitted with the D.C. Federal Appeals Court. This, in essence, asks the Court to order an agency to do its job in a timely way. “In essence [the Writ of Mandamus] forces the agency to avoid the ‘pocket veto,'” the D.C. attorney says. “Mandamus prevents an agency from sitting on an action that it is required by statute to take, so it seems appropriate here.”
To view the Conditional Petition for Writ of Mandamus to the FCC, please click here:
Conditional Petition for a Writ of Mandamus to the Federal Communications Commission
