Unions and advocacy groups opposing the merger of Standard General and Tegna have filed their opposition to what they are characterizing as the companies’ last-ditch effort to save the proposed combination.
That opposition came in the form of a filing Tuesday (April 11) with the U.S. Court of Appeals for the D.C. Circuit by The NewsGuild-CWA; the National Association of Broadcast Employees and Technicians-CWA; Common Cause; and the United Church of Christ, OC Inc.
Standard General and Tegna had appealed the FCC Media Bureau's decision to designate their $8.6 billion deal for hearing before an administrative law judge (ALJ), a move that will extend the FCC’s review beyond a May 22 funding cut-off date. Such a designation is considered a death blow to proposed mergers.
But the FCC countered that the designation is not a final agency action — since it has not yet given the deal a thumbs-up or thumbs-down — so it’s not right for legal appeal.
If the court agrees with the FCC that the designation order is not a final action, the companies want the D.C. Circuit to then order the FCC to reach such an action (a so-called writ of mandamus) by April 28. The companies say the FCC’s inaction violates its duty to act on a license transfer request by ordering “an unlawful hearing” that unreasonably delays a final action and effectively denies the application as a result.
But in their opposition to the writ, the unions say Standard General and Tegna are essentially wrong on all counts.
“The question before the FCC is whether Standard General’s stewardship of publicly-owned spectrum will provide the public with the programming service to which it is entitled,” they said. “Examination of that question requires a hearing.”
They said that the May 22 deadline was an artificial construct, the FCC was fulfilling its duty by designating the hearing to gather further facts on “unresolved issues” and the agency has not unreasonably delayed its decision.
Not surprisingly, the FCC has also told the court that the Standard General-Tegna writ is off base.
“Under the Communications Act, if the FCC is unable to find that a transfer of a broadcast license would serve the public interest, or if it finds that substantial and material questions of fact are presented, it is required to refer the matter to a hearing,’ the FCC said, which was the case with the deal under consideration.
The FCC told the court that one of the reasons it wanted the hearing was evidence that the companies’ “plan to cut local station staffing and investment, including potential cuts to local journalism and newsroom staffing,” a plan the companies have repeatedly denied.
The FCC also cited the possibility that the deal structure would allow Standard General and Tegna to “artificially” raise retrans fees.
The National Association of Broadcasters has filed a brief in support of Standard General and Tegna’s effort to press the FCC for a decision. Some cable and satellite operators represented by the American Television Alliance (ATVA) have also asked the court for permission to weigh in in support of the FCC's hearing designation, saying that there is a “wealth of evidence in the record — much of it supplied by ATVA and its member companies — supporting the Bureau’s decision not to grant the Applicants without a hearing.”
