Gray Seeks 11th Circuit Rehearing After AT&T's Win
Gray Media wants the full 11th Circuit U.S. Court of Appeals to rehear its legal challenge against a $518,283 forfeiture, the company said Monday in a petition for rehearing en banc, citing recent U.S. Supreme Court decisions and the 5th Circuit’s recent ruling against the FCC over a penalty assessed against AT&T (see 2504180021). Last month, the 11th Circuit upheld the FCC’s forfeiture order against Gray over a violation of ownership rules (see 2503070004) but vacated the penalty because the agency didn’t adequately provide notice that the violation was “egregious.”
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Rehearing the case would allow the court to prevent the FCC from imposing a new penalty based on “its constitutionally defective forfeiture proceedings” in the wake of SCOTUS' SEC v. Jarkesy ruling and the 5th Circuit decision against the FCC. Two of the three judges on the original 11th Circuit panel expressed “grave concerns” that the FCC didn’t have the authority to enforce a rule against station swaps that create top-four duopolies, but the panel didn’t rule on that matter, Gray said in the petition. “Rehearing is necessary to prevent the anomalous situation where the FCC enforces on remand a regulation that a majority of the Panel” would find to be outside FCC authority. Failing to review the agency’s authority is inconsistent with the Loper Bright v. Raimondo ruling against Chevron deference, Gray said. Imposing a civil forfeiture against Gray without a jury trial runs counter to Jarkesy “as confirmed by” the 5th Circuit's AT&T decision, the company added. The original panel’s ruling remanding the penalty back to the commission “squarely raises whether the FCC had the authority to impose a forfeiture penalty on Gray in the first place and whether the FCC may do so on remand consistent with Jarkesy.” En banc appeals are widely seen as long shots unlikely to succeed, broadcast attorneys told us.