NAB and FCC Tussle in 8th Circuit Over 11th Circuit Ruling Against Gray
The FCC and NAB disagreed in court filings this week about how last week’s 11th U.S. Circuit Court of Appeals ruling upholding the FCC’s forfeiture order against Gray Media applies to the broadcaster challenge of the 2018 quadrennial review order in the 8th Circuit. Oral argument in that case is set for March 19. The 11th Circuit ruled against Gray, saying Note 11 -- an FCC rule against broadcasters swapping network affiliation to get around ownership limits -- doesn’t violate the Communications Act or the First Amendment (see 2503070004. The 8th Circuit petitioners, which include Zimmer Radio, Nexstar, NAB, Beasley Media and Tri-State Communications, have made similar arguments against Note 11 in their filing opposing the 2018 QR, which expanded the reach of the rule to include low-power stations and multicast streams.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
After the 11th Circuit ruling, the 8th Circuit should also reject those broadcaster arguments, the FCC said in a letter Monday. However, the 8th Circuit shouldn’t consider matters raised by the concurring opinion in the Gray case, the FCC said. In that opinion, two 11th Circuit judges questioned whether the Communications Act gives the FCC authority over affiliation transfers, but the full panel concluded that matter wasn’t before the court because Gray didn’t raise it before the agency. That is also the case in the 8th Circuit, the FCC said.
NAB disagreed in a letter Tuesday. The 11th Circuit decision “did not address the FCC’s extension of Note 11 to multicasting or low-power television stations, which is at issue here,” NAB said. The broadcasters did challenge the FCC’s authority over affiliate swaps in their filings by pointing out that the revised Note 11 rules don’t have anything to do with the scarcity of broadcast frequencies or the purchase of new stations, NAB said. Precedent set by the 8th Circuit shows that if any part of a rule exceeds an agency’s statutory authority, the court should vacate the entire rule, it said. "The proper remedy for any of the Commission’s APA violations is vacatur of the Local Television Rule and Local Radio Rule."