WASHINGTON—Senate Committee on Commerce, Science, and Transportation Chairman Ted Cruz (R-Texas) and Ranking Member Maria Cantwell (D-Wash.) have sent a letter to Federal Communications Commission Chair Brendan Carr raising what they call “serious concerns” about the way the agency approved $6.2 billion merger between Nexstar and Tegna.
Those concerns revolve around the fact that the deal was approved by the Media Bureau rather than a full Commission vote, a move that Carr has defended and Commissioner Anna Gomez has criticized.
The decision, they wrote, “raises serious concerns about the Commission’s use of delegated authority in matters involving significant legal, policy, and economic consequences. The transaction is unprecedented in scale, resulting in the largest local broadcast television group in U.S. history, with 259 full-power television stations across 44 states, reaching nearly 80 percent of U.S. television households, even after required divestitures. A transaction of this magnitude alone warranted consideration and a vote by the full Commission. Although you have indicated that a full Commission vote may still occur, the Commission has already approved the transaction on delegated authority, effectively determining the outcome. Under these circumstances, any subsequent vote risks being largely procedural rather than a genuine exercise of Commission responsibility.”
The letter lays out a number of areas where the transaction raised significant legal and economic issues, including the waiver of the existing station ownership caps, that the Senators indicated deserved review and a vote by the full Commission rather than approval by the Media Bureau.
“Congress has entrusted the Federal Communications Commission with substantial authority under the Communications Act, including the mandate to act in the “public interest,” the Senators wrote. “Within this authority, the FCC may delegate certain responsibilities to its bureaus, but such delegations are constrained by statute and regulation. Among other limits, a bureau may not act on matters that present new or novel legal, factual, or policy questions unresolved by existing precedent. This merger required the resolution of significant and unresolved legal questions. Most notably, the order granted an expansive waiver of the 39 percent national audience reach cap—a statutory limit set by Congress—despite ongoing debate about the Commission’s authority to modify or circumvent that cap. In addition, the order approved extensive waivers of local ownership rules, including authorization of three major full-power stations in a single market in numerous cases. These are not routine applications of settled policy; they are substantial departures from existing rules.”
“The size of the transaction and the scope of the waivers presented are precisely the type of novel and consequential issues that Commission precedent, as well as basic principles of administrative accountability to the American people, require to be decided by the full Commission,” the Senators complained. “Equally troubling is the procedural consequence of this choice. Because bureau-level decisions are not final orders, parties must first seek Commission review before accessing the courts. In a transaction of this scale, where integration proceeds quickly and unwinding becomes impractical, delay in judicial review can insulate the decision from meaningful challenge. That outcome is difficult to reconcile with the Commission’s obligation to ensure transparency and accountability in major actions.”
The letter also noted opposition by both FCC Chair Carr and Senator Cruz to the FCC making major decisions at the Bureau level rather than a full commission vote.
“You [Carr] have previously said that significant transactions should not be resolved at the staff level,” the letter noted. “In June 2023, you committed to `not block a large transaction without a Commission vote,’ emphasizing that such decisions `must reflect the will of the Commission.’ You have also criticized prior instances in which the Media Bureau acted on `new and novel decisions without authorization from the full Commission,' noting that the Bureau `does not have the authority to do’ so. The Nexstar–Tegna order presents the same kinds of questions. Yet here, the Commission proceeded in the opposite direction. This inconsistency raises an important question about the limiting principle of delegated authority. If a transaction of this scale, involving statutory caps and waivers across dozens of markets, can be resolved at the bureau level, it is unclear what types of decisions still require Commission-level review.”
In response to the approval the Senators also asked Carr to submit written answers to a number of questions about the approval process and the FCC’s use of “delegated authority” in the future.
