WASHINGTON, D.C. — A pair of progressive political action groups, along with a collection of viewers of ABC stations, have responded to formal opposition to their request to become plaintiffs alongside The Walt Disney Company in its ABC-focused federal lawsuit against the FCC being argued in U.S. District Court. As veteran D.C. attorney Arthur Belendiuk sees it, the Disney unit was incorrect in arguing the groups lack a legally protected interest in the lawsuit.
Why is that? There’s harm due to alleged lost programming and tweaked guest bookings.
The proposed plaintiffs and intervenors are Frequency Forward, a self-described “public interest watchdog” intent on “holding the FCC accountable” and the Media Action Center, which has a stated mission of “putting the public back into broadcasters’ ‘public interest obligations.”
In a 13-page memorandum in support of a motion to intervene, the two groups in late August told a U.S. District Court in Washington that they wish to ensure viewers’ First Amendment rights are represented in American Broadcasting Companies v. FCC “and to guarantee the American public has a seat at the table.”
With Beth Wilkinson at M Street law firm Wilkinson Stekloff leading the legal team representing ABC/Disney, a September 4 filing expressed her client’s opposition to the proposed Motion to Intervene filed by public interest groups Frequency Forward, the Media Action Center, and fourteen individual viewers.
Wilkinson told Judge Loren L. AliKhan that while there are shared concerns about the FCC’s “unlawful retaliatory campaign” against ABC, the motion to intervene fails to meet the requirements needed to participate for two reasons — the harm they invoke is harm to the plaintiffs, not to the groups, and that the “proposed intervenors do not come close to rebutting the presumption that Plaintiffs already adequately represent any interest that proposed intervenors might assert.” Thus, she added, “Proposed intervenors have other mechanisms to ensure that their perspective is offered to the Court: they can seek to file an amicus brief at the appropriate stage in the litigation.”
No, says Belendiuk. He argues that the D.C. Circuit has established that the right to intervene depends on the applicant’s ability to satisfy four factors:
- whether the motion to intervene was timely
- whether the applicant claims an interest relating to the property or transaction that is the subject of the action
- whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest
- whether the applicant’s interest is adequately represented by existing parties
Belendiuk adds that the D.C. Circuit further held that, in addition to establishing its qualification for intervention under Rule 24(a)(2), a party seeking to intervene as of right must demonstrate that it has standing under Article III of the Constitution. The attorneys says his clients have standing on this basis.
He then seeks to show how WABC-7 in New York viewer Roxanne Griffith was “distressed to learn that because of ongoing pressure from the FCC and its investigation into The View, as well as the early license renewal process, Disney has altered the process for choosing potential guests for The View.”
Griffith is upset because no political candidate for public office has appeared since U.S. Senate hopeful James Talarico, a Democrat who is presently in the Texas House of Representatives, on February 2.
WPVI-6 in Philadelphia viewer Jack Smith is also “deeply concerned that Disney has modified its programming to pacify the Trump administration and the FCC,” adding, “The FCC’s call for the early renewal of ABC’s licenses and the threat to designate the company for hearing over vaguely articulated claims of violating FCC rules against discrimination in employment is obviously retaliatory and pretextual and in violation of my First Amendment rights as a regular viewer of my ABC station. I am injured by the FCC’s actions and by Disney/ABC caving under FCC and administration pressure.”
With that, Belendiuk argues that, “As demonstrated by the declarations, Disney is not the only injured party in this proceeding. If anything, Proposed Intervenors have the greater claim.”
In a “Minute Order” issued Tuesday, Judge AliKhan rendered Belendiuk’s reply in opposition to ABC/Disney’s motion “ripe for decision.” She said, “If the court later determines that it would benefit from Defendants’ position on the Motion to Intervene, it will direct further briefing.”
Judge AliKhan also confirmed that the FCC is under no obligation to respond to the motion to intervene at this time.
In related news, Center for American Rights founder and head Daniel Suhr has submitted a notice of appearance with the court, following the September 4 submission of an amicus brief in which the conservative group argues the preliminary injunction sought by Disney/ABC should be denied. “Disney has not borne its burden to show it is likely to succeed on the merits—namely, that the government’s supposed retaliatory motive is the but-for cause of the Commission’s investigation into Disney’s unlawful discrimination,” Suhr opines.
RBR+TVBR MEMBER BENEFIT: Read Daniel Suhr’s amicus brief in full by clicking here
