Gray: FCC Overstepped Authority, Ignored Precedent in $518,000 Forfeiture
The FCC’s $518,000 forfeiture order against Gray Television over an Anchorage market deal where Gray bought the CBS affiliation of a station should be vacated because the agency’s authority extends only to license transfers and not programming, Gray told the…
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11th U.S. Circuit Court of Appeals in an opening brief filed Wednesday in docket 22-14274. The FCC forfeiture order against Gray concerned the broadcaster’s buy of the CBS affiliation -- but not the license -- of Denali Media's station KTVA Anchorage in 2020 and shifting of the programming to Gray’s station KYES-TV Anchorage -- now KAUU -- while continuing to own NBC affiliate KTUU-TV Anchorage. The FCC order (see 2301040059) argued the deal was the “functional equivalent” of a license transfer but Congress didn't delegate authority to the FCC to prohibit transactions that may be the “functional equivalent of” license transfers, Gray said. The FCC also broadened its rules on top-four combinations and rankings and reinterpreted rules against station swaps without providing notice in the middle of the enforcement proceeding, the brief said. “Principles of fair notice do not allow the FCC to modify the rules during a proceeding and penalize the broadcaster based on new interpretations,” said the filing. Gray also took issue with the penalty, which was the maximum allowed under the statute. The FCC imposed a daily base forfeiture penalty ”which departed from FCC precedent” and ignored Gray’s efforts to address the matter, the filing said. Penalizing Gray over a purchase of programming violates the First Amendment, said Gray. “The only governmental interest the FCC identified in the Forfeiture Order is a general interest in promoting competition. That general interest cannot justify the intrusion on Gray’s rights here,” the filings said. The FCC said its ancillary authority allows it to act to close “potential loopholes” but the forfeiture order cites only cases that reference the FCC’s authority over license transfers, Gray said. “If the FCC could invoke its ancillary authority over the purchase of a programming affiliation” in this matter “there would be no principled limit to the FCC’s power over broadcast licensees. This case presents a perfect example of an agency defining its own power well beyond its delegated authority,” Gray said. The FCC didn’t comment.