In light of yesterday’s announcement that the FCC Chairman has proposed that portions of the acquisition by Sinclair Broadcast Group of the television stations owned by Tribune Media would be designated for hearing, one question that many have asked is, “What does designation for hearing mean?” Several decades ago, the process of designating an application for hearing was a common occurrence – used by the FCC to decide between competing applicants for new broadcast (and in some cases non-broadcast) licenses, in connection with determinations of whether or not to grant the license renewal of broadcast stations where substantive petitions or competing applications were filed against such applications, or to deal with enforcement issues when there were questions about the facts of a particular situation. The FCC had a large staff of Administrative Law Judges who heard these cases, and they were usually quite busy. But as the staff of ALJs at the FCC has dwindled to one, and as cases referred to that Judge are increasingly infrequent, it might be worth discussing a bit about the hearing process at the FCC.
Congress established, in Sections 309 and 310(d) of the Communications Act, the manner in which the FCC is to process applications filed with it. In cases involving applications for new stations or for the purchase and sale of stations, applications are filed providing information required by the FCC and such supplemental information as the FCC may request. Interested parties routinely have 30 days in which to file objections to applications, in which the petitioner needs to submit detailed allegations supported by facts either in the public record or otherwise supported by statements from those with personal knowledge of the facts, arguing why an application should not be granted. Applicants have the opportunity to respond. In most cases, the FCC will attempt to resolve any disputes, or any questions that it has on its own, on the basis of the written materials presented in the application, the petitions, and in response to any FCC supplemental request for information. But Section 309(e) makes clear that, if there is a “substantial and material question of fact” or if the Commission is otherwise not able to determine that an application meets the requirements of the rules, it needs to formally designate the application for hearing. Continue Reading