WASHINGTON—A coalition of public interest groups has filed a motion with the U.S. Court of Appeals for the D.C. Circuit urging the court to stay an order issued by the Media Bureau of Federal Communication Commission approving the Nexstar/Tegna merger and force the FCC to act on their petition to review the decision.
In a May 18 brief, Free Press, the Communications Workers of America, the United Church of Christ Media Justice Ministry, Inc., and Public Knowledge told the U.S. Court of Appeals for the D.C. Circuit that the FCC had taken actions designed to frustrate the court’s review of the agency’s merger-approval decision. The brief also explained how Nexstar has tried to move forward with its proposed takeover of Tegna without allowing time for judicial review of the transaction.
“The order approving the transfer of TEGNA’s licenses to Nexstar is plainly unlawful,” the appellants argued in the brief. “The FCC’s and Nexstar’s gambits cannot insulate this merger—which would far exceed the limits that Congress imposed—from judicial review.”
The appellants urge the court to make the full Commission review the Media Bureau’s order and facilitate the D.C. Circuit’s review of this unlawful FCC decision. In this case, lawyers at Democracy Forward are representing the appellants.
“The Court should issue a writ of mandamus directing the full Commission to act on Appellants' application for review and to stay the Media Bureau's order pending this Court's review,” the May 18 brief argued. “In the alternative, the Court should hold the petitions for mandamus in abeyance while the merger is enjoined and order the Commission to report on the status of the application for review every 30 days.”
The filing was made in two combined cases seeking to block the merger. One is an antitrust suit brought by Broadband Communications Association Of Pennsylvania, Newsmax and others; the second one was an emergency petition brought by Free Press and other groups asking the court to force the FCC to act on their motion to reconsider the merger approval.
The FCC opposed the petition and the court subsequently denied motions for an emergency stay of the merger, in part because a federal court in California has issued a preliminary injunction halting the merger as it considers a separate antitrust lawsuit filed by various states and DirecTV.
Opponents argues that If allowed to proceed, the merger would let Nexstar own or operate 265 full-power television stations reaching more than 80 percent of U.S. television households. This is more than double the 39 percent national ownership limit that Congress set. In many markets, Nexstar would control half or more of all commercial stations that air English-language news, further limiting options in already concentrated markets.
“The FCC’s politically motivated approval of the Nexstar-Tegna merger makes a mockery of the rules Congress created to prevent broadcast-television monopolies,” said Matt Wood, Free Press’ vice president of policy and general counsel, in a statement. “The most offensive trick in FCC Chairman Brendan Carr’s arsenal is the claim that FCC underlings can bless a transaction and let the merger proponents close the deal — yet somehow that decision isn’t final for purposes of appellate-court review. As our pleadings in this case make clear, Trump’s FCC chairman celebrates this decision he ordered, yet still has the gall to go to court and say the decision isn’t final enough for appeal.”
“The harms will be immense if a broadcast giant like Nexstar is allowed to control even more local-news media,” he added. “Congress rightly made broadcast TV-station consolidation of this scale illegal. That’s why we’ve asked the D.C. Circuit to stop this unlawful merger, and to reject Brendan Carr’s scheme to let the deal go ahead while shielding it from court review. And it’s why we’re committed to fighting the ongoing takeover of U.S. media by interests that are beholden to an authoritarian president — and care little about serving the needs of a diverse democracy.”
In its filing with the court, the FCC has said the full Commission will vote on the merger, which the Media Bureau found to be “in the public interest” sometime this year but declined to offer a specific date or time frame.
