Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration. This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed. Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue. We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023. In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission.
But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC. As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise. This was done not by an action of the Commissioners, but instead by its Media Bureau. Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves. Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.…
Last week, broadcasters and broadcast journalists were abuzz with discussions of the FCC’s Media Bureau issuing a hearing designation order referring to an Administrative Law Judge questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting. This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners to determine whether the case really should have been designated for hearing. The request that the case be referred to the Commissioners notes that the designation would have the effect of terminating the transaction, as the contract provides the parties only until May to close, and the buyer cannot get the agreement extended. With so many questions about the TEGNA deal and its designation for hearing, we thought that we would review the hearing designation process and look at the inherent delays in the process which led to the parties’ contention that the designation, if not reviewed by the Commission, will effectively kill the deal. In a subsequent article, we will look at some of the substantive issues raised by the hearing designation order.
Five years ago, we wrote about the hearing designation process in connection with the last major case where a proposed broadcast transaction was designated for hearing, i.e., Sinclair Broadcast Group’s proposed acquisition of the television stations owned by Tribune Media. The TEGNA case differs from the Sinclair case in one significant manner, namely that the hearing designation order in the TEGNA case was issued by the Chief of the FCC’s Media Bureau, not by the Commissioners themselves. In the Sinclair case, the Commissioners issued the hearing designation order, meaning there was no opportunity to ask for the review now being sought by the parties to the TEGNA deal. When a designation order is issued by a Bureau, the party whose application was designated for hearing can, as in the TEGNA case, ask the presiding Administrative Law Judge to certify the case to the Commissioners before starting the hearing process, if there are questions of law that suggest that the case should not have been set for hearing. While the Judge can decide to seek the guidance of the full Commission through this kind of certification, the full Commission need not take up the case even if the Judge decides to certify it to them. Instead, the Commissioners can decide that the hearing should move forward, and that the legal issues can be considered later after the full hearing has taken place. While that is the procedure set out in the FCC’s rules, the TEGNA parties argue that were the Judge to certify the case and the Commission did take action, then they intend to directly appeal the matter to the Courts for review (which is normally not allowed until a decision is reached by the ALJ) because the designation for hearing by itself, issued after the application was pending for a year, equates to a the denial of the application. What in the process for a case once designated for hearing that leads to that conclusion? Let’s look at the process of setting a case for hearing.…
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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