The Federal Communications Commission is urging the U.S. Court of Appeals for the D.C. Circuit to dismiss appeals filed in consolidated antitrust cases seeking to block the agency’s previously issued ruling approving the Nexstar/Tegna merger.
The motions appealing the FCC's approval were filed in the court by several broadband associations, DirecTV and Newsmax. Since then, in late April, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency motion to stay the $6.2 billion Nexstar/Tegna merger.
In a May 5 filing the FCC argued that “under binding Circuit precedent, this Court lacks jurisdiction to review an order issued by the Commission’s staff. The Court should therefore dismiss these appeals.”
In its arguments, the FCC noted that its Media Bureau, “not the Commission, has acted. And the Commission has not denied—constructively or otherwise—the recently filed application for review.
In all events, appellants’ arguments in support of jurisdiction cannot overcome the plain text of 47 U.S.C. § 155(c)(7). The second sentence of that provision states: `The time … within which an appeal must be taken under [47 U.S.C. § 402(b)] shall be computed from the date upon which public notice is given of orders disposing of all applications for review filed in any case.’”
“Thus, Congress made clear that the filing window for appeals under section 402(b)—i.e., the timeframe `within which an appeal must be taken’—does not open until the FCC has acted on all pending applications for review of staff decisions. This confirms what the Court previously concluded: `Congress did not intend that the court review a staff decision that has not been adopted by the Commission itself.’”
As a result, “This Court lacks jurisdiction to review orders issued by the FCC’s staff, including the Media Bureau’s order in this case,” the FCC concluded. “Accordingly, the Court should grant this motion and dismiss these appeals.”
The merger has also been challenged in Federal Court in California, where the court has issued a preliminary injunction preventing Nexstar from going ahead with the merger.
