Key Points
- Nexstar Media Group and the Federal Communications Commission argue a lawsuit over the TEGNA deal is premature and should be dismissed.
- Both say challengers are attempting to appeal a Media Bureau order before a final decision is made by the full FCC commission.
- The dispute centers on whether bureau-level approvals can be treated as final for closing deals but not for judicial review.
Nexstar Media Group and the Federal Communications Commission (FCC) have asked the U.S. Court of Appeals for the District of Columbia Circuit to dismiss a pending lawsuit brought by a watchdog group called the Free Press, saying the lower court in the case lacks standing because the full FCC board of commissioners has not yet approved the transaction.
In separate filings made Friday, the FCC and Nexstar said the appeals in the case are premature because the Free Press wants a review of an order issued by the FCC’s Media Bureau, rather than a final act approved by the three-member commission.
Nexstar closed on its acquisition of TEGNA in March after receiving sign-offs from the FCC Media Bureau and regulators at the U.S. Department of Justice. The approvals came despite the urging of Democratic FCC Commissioner Anna Gomez for a full vote involving her and two other Republican-appointed commissioners.
So far, FCC Chairman Brendan Carr, appointed by President Donald Trump last year, has not acted on Gomez’s request, yet the FCC continues to cite the lack of a vote as justification for why legal challenges over Nexstar’s merger with TEGNA should be put on pause.
Ordinarily, a sizable transaction like the one involving Nexstar’s acquisition of TEGNA-owned stations would be prohibited under long-standing rules that limit the direct reach of a single broadcaster. Those rules currently prevent one broadcaster from having ownership of local TV licenses connected to stations that reach more than 39 percent of the American viewing audience.
In specific cases, the FCC has granted waivers of its ownership rules after finding stations might otherwise fail unless they are acquired by a bigger broadcaster, or determining that one or more stations being acquired has significantly lower ratings than other outlets in a given area.
But in this case, the FCC’s Media Bureau made an unprecedented move to grant waivers to all TEGNA-owned stations in markets where Nexstar also owns an outlet, without regard to the viewership or business performance of those stations.
Opponents have argued that the waivers should not have been granted and have raised concerns about the impact of the transaction on retransmission consent fees and local television ownership. Satellite and streaming TV provider DIRECTV — which is pushing its own lawsuit over the Nexstar-TEGNA deal in a different legal jurisdiction — has also opposed the waivers, arguing the deal could lead to higher programming costs that may be passed along to subscribers.
In its filing, Nexstar’s attorneys at Wiley Law said the challengers are attempting to appeal a bureau-level order before the FCC has resolved pending applications for full commission review.
The FCC made a similar argument, telling the D.C. Circuit that existing precedent requires dismissal when a party seeks judicial review of a bureau decision before the commission has completed its own review process.
The agency said the challengers “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.’”
The FCC said the filing of an application for commission review does not automatically give the court jurisdiction over a Media Bureau order.
The dispute places the court in the middle of a procedural fight over when a bureau decision becomes reviewable and whether companies can act on such decisions while commission-level appeals remain pending.
Nexstar and the FCC argue the Media Bureau order remains effective unless and until the full commission changes it. Challengers contend the agency should not be able to treat the bureau action as binding for purposes of allowing the merger to close while also arguing it is not final enough for judicial review.
A recent decision by the U.S. Supreme Court could further complicate matters: Last week, the court found the FCC can levy fines against broadcasters for violations of its rules, but that the fines are not immediately collectible unless they are subjected to judicial review. Fines are typically issued by the Media Bureau, not the full board of commissioners, though commissioners can uphold or reject fines if the matter is raised at a meeting.
In the Supreme Court case, the court determined that the FCC’s administrative process was not the final step in the matter, because those who face fines can seek review before a court or even have the matter heard before a jury.
The dismissal requests from the FCC and Nexstar are the latest in a string of activities meant to prevent the case in D.C. from moving forward. Last month, Nexstar alleged the case in D.C. was effectively duplicitous to one brought by DIRECTV and several state attorneys general in California, where an injunction was issued that effectively requires TEGNA to operate as a subsidiary business, with minimal interference from its parent company.
