Standard/Tegna Haven't Met Burden on HDO, Say Enforcement Bureau, Unions
The FCC’s administrative law judge isn’t obligated to resolve the Standard/Tegna transaction’s proceeding (see 2303070081) before the deal’s May 22 breakup date, and the broadcasters haven’t shown the case should be kicked back to the full FCC, said response filings posted Friday in docket 22-162 from the FCC Enforcement Bureau and two sectors of the Communications Workers of America. “The Media Bureau afforded the Applicants extra time and extra opportunity to establish that they were entitled to relief,” said the joint filing from the CWA's NewsGuild and National Association of Broadcast Engineers and Technicians. It isn’t the unions’ “or the Media Bureau’s fault that the Applicants’ sales agreement is about to expire,” the filing said. “This is entirely the parties’ doing.”
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The hearing designation order (HDO) was issued because the broadcasters’ “constructed a uniquely complicated series of transactions” and then failed to file sufficient information demonstrating the deal should be approved without a hearing, said the joint filing from the unions. “Far from discriminating against the Applicants, the Media Bureau has afforded them extraordinary deference” by providing repeated opportunities for additional information submissions, the joint filing said. Standard General declined to comment.
Standard/Tegna’s motion to certify the case to the full FCC is an “uncommon and striking request,” and the broadcasters don’t cite a single precedent for an ALJ doing so, said the Enforcement Bureau. Under FCC rules, the broadcasters have to meet “the heavy burden” of showing there are controlling questions of law and that putting the matter before the commissioners would “materially expedite” the litigation, the EB said. “Even if” the full FCC were to vote on the deal and release an order before the breakup date, “any such order would still be subject to petitions for reconsideration and/or appeal to the federal courts,” the EB said. “It is nearly impossible to see how any of these issues could be fully resolved before May 22, 2023.”
Both the EB and the union filing focused on Standard’s arguments on the constitutionality of ALJs, with both saying this was the only question of law presented in the motion. Standard/General’s disagreement with the Media Bureau’s authority to issue an HDO based on concerns over retransmission consent and job losses are questions of fact that don’t satisfy the burden, for certification, they said. “If anything” the broadcasters’ questioning of the Media Bureau’s evidence reinforces the need for a hearing process, the EB said.
The U.S. Supreme Court decision referenced by the motion doesn’t apply to ALJs, and the 5th U.S. Circuit Court of Appeals decision in Jarkesy v. FCC doesn’t affect the agency, which is covered by the D.C Circuit, said the unions. The ALJ powers in this case also fall short of the focus of those previous cases because the HDO's wording, said the joint filing. Previous HDOs ordered the ALJ to make a determination in the case, but the Standard/Tegna HDO doesn’t order the ALJ to decide if the applications should be granted. Instead, the ALJ is to provide findings to the Media Bureau to take further action, a situation the union filing called “atypical.” The HDO “confers no enforcement or policymaking responsibilities on the ALJ,” differentiating this matter significantly from the 5th Circuit decision.
Standard/Tegna also failed to show substantial ground for a difference of opinion on the question of ALJ constitutionality, the EB said. FCC rules require the ALJ to send the matter back to the agency. Doing so also wouldn’t expedite the matter as the rules also require, the EB said. “Questions about the constitutionality of the Commission’s Presiding Judge and of her authority to conduct an administrative hearing will need to be addressed in the Circuit courts -- and likely, the U.S. Supreme Court,” said the EB filing. “It is inconceivable that these questions could be resolved by May 22, 2023.”
The broadcasters are asking the ALJ “to accept their version of the facts before there has been any opportunity for the parties to engage in discovery,” said the unions. “This would deprive the other parties to this proceeding of the due process and an opportunity to be heard before the ALJ.”