The FCC’s rule barring stations from using affiliation deals to get around ownership limits falls outside the agency's congressional authority, Gray Television told the 11th U.S. Circuit Court of Appeals Wednesday. In a supplemental brief (docket 22-14274), Gray said the appellate court should determine that authority's scope and meaning without deference to the commission. The 11th Circuit earlier this month requested a brief about the effects of the U.S. Supreme Court's Loper Bright decision (see 2407110058). Gray is appealing a $518,000 forfeiture order over its alleged violation of the FCCs "Note 11" affiliation deals rule related to its purchase of the network affiliation of an Anchorage TV station (see 2301040059). The FCC has 14 days to respond to the supplemental brief. In its brief, Gray said Loper Bright mandates that the court first resolve whether the agency had statutory authority to promulgate and enforce Note 11. It said while Congress gave the FCC regulatory authority over license transfers, Note 11 and the forfeiture order are about what the FCC considers the "functional equivalent" of a license transfer.

Religious radio broadcaster theDove Media filed a petition for review against the FCC’s February equal employment opportunity order in the 9th U.S. Circuit Court of Appeals, according to court documents and a news release from Pacific Legal Foundation (PLF), which represents theDove and owner Perry Atkinson. The EEO order was also challenged in filings in the 5th U.S. Circuit Court of Appeals and at the FCC (see 2405130041). The PLF release says the EEO order puts theDove at risk of being sued by third parties over “perceived disparities in the race or gender makeup of their workforce” and is outside the FCC’s authority. “The Constitution gives Congress alone the power to make laws and, therefore, Congress cannot give that power away to agencies,” PLF Senior Attorney Oliver Dunford said in the release. “Nor can these agencies accomplish indirectly what they are precluded from doing directly.”

FCC Administrative Law Judge Jane Halprin has ordered broadcast attorney Dan Alpert to explain how he can represent multiple clients whose interests conflict with each other in a hearing. The proceeding involves allegedly false transfers of control of low-power radio and TV stations (see 2310020059). Alpert declined to comment. The proceeding concerns allegations that Antonio Guel transferred stations to his niece, Jennifer Juarez, to avoid including them in a bankruptcy filing, although he remained in control of the stations. Guel’s daughter, Maria Guel, allegedly controls other companies involved in the transaction (see 2402060049). The Enforcement Bureau filed an emergency motion Monday asking for Halprin to take action against Antonio Guel’s attorney, Alpert, after he informed it that he would be representing both Maria Guel and Juarez in depositions scheduled for next week. “Mr. Alpert now represents two witnesses in the case who are likely to provide information that is directly and materially adverse to the interests of his original client, Mr. Guel,” the EB motion said. Halprin cautioned Alpert in February about apparent conflicts of interest in the case. “It is a fundamental rule of practicing law that a lawyer may not represent clients in the same matter whose interests are adverse to each other,” wrote Halprin in Tuesday’s order. While Halprin said that rule can be waived if the parties provide informed consent, the EB argued that some conflicts in this matter can't be waived under DC Bar ethics rules. “The responsibility is on Mr. Alpert to know and adhere to applicable rules of professional conduct,” Halprin wrote. “At the same time, the Presiding Judge must be mindful that the Administrative Procedure Act and the Commission’s rules allow witnesses to be represented by counsel.” The EB “cannot risk incurring the cost of these depositions at the public’s expense only to have Mr. Guel or Ms. Juarez later claim ineffective assistance of counsel and/or otherwise challenge the integrity or validity of this entire proceeding,” the EB said. Tuesday’s order gives Alpert until Friday to respond and “include an explanation of how he reconciles his simultaneous representation of Mr. Guel, Ms. Guel, and Ms. Juarez with applicable rules of professional conduct.”

The FCC treats its quadrennial review process “like a basketball center blocking shots,” broadcasters say as they challenge the FCC’s 2018 quadrennial review order in an opening brief in the 8th U.S. Circuit Court of Appeals. The broadcasters argue that the 8th Circuit should vacate not only the 2018 QR order, but also local TV and radio ownership limits, because the FCC has failed to justify retaining them. The agency “never seriously examines whether its rules are in the public interest as a result of clear competition; instead it simply swats at certain alternative proposals,” says the filing from NAB, Zimmer Radio, Tri-State Communications, Nexstar and Beasley Media. Though the brief was filed Monday, as of Tuesday afternoon, it was still inaccessible on the 8th Circuit’s website because the clerk of the court must approve filings before they go public. “Congress directed the Commission to determine whether its broadcast ownership rules remain necessary in light of competitive changes; that undertaking requires a fresh look each time, and an affirmative, reasoned justification if the Commission determines the limits are still necessary,” the brief says. “The Commission failed that task.” The petitioner brief and an intervenor brief from the ABC, CBS, Fox and NBC affiliate station groups argue that the U.S. Supreme Court’s recent decision overturning Chevron deference means the 8th Circuit should rule that the agency has violated Section 202h of the 1996 Communications Act. A collection of radio broadcasters also filed as intervenors. The QR order “disregards the deregulatory nature of section 202(h) and ignores competition from non-broadcast sources,” the joint brief says. The broadcasters also argue that the QR order’s inclusion of channels hosted on multicast stations or low-power stations under the Top Four prohibition violated the First Amendment. “The Commission may not regulate broadcasters’ programming choices -- the Communications Act does not authorize it, and the First Amendment forbids it,” the joint filing says. “It is long past time for the FCC to modernize its broadcast ownership rules; these are relics from a bygone era, created before the internet, smartphones, social media and streaming,” NAB CEO Curtis LeGeyt says in a release. “NAB's brief succinctly demonstrates to the U.S. Court of Appeals for the Eighth Circuit that the FCC has failed to justify that these rules remain necessary to serve the public in light of the immense competition broadcasters face in today's media marketplace."

NAB CEO Curtis LeGeyt praised proposed legislation protecting news organizations from deceptive AI-generated content, an NAB release said. Senate Commerce Chair Maria Cantwell, D-Wash., on Thursday announced the Content Origin Protection and Integrity from Edited and Deepfaked Media (Copied) Act with Sen. Marsha Blackburn, R-Tenn., (see 2407110044). LeGeyt said he's “grateful” for the bill that will “protect the authenticity of the vital local and national news radio and television stations provide our communities." Deepfakes “pose a significant threat to the integrity of broadcasters’ trusted journalism, especially during an election year when accurate information is paramount.” LeGeyt also said NAB applauds “the prohibition on the use of our news content to train generative AI systems or to create competing content without express consent and compensation to the news creator.”

The FCC’s Enforcement Bureau sent warnings to 13 New York metropolitan-area landowners over pirate radio broadcasts from their properties, an agency news release and notices of violation released late Thursday said. The notices targeted landowners in New York City and Spring Valley, N.Y., as well as in New Jersey's Newark and Irvington, the release said. The notices warn landowners that each could face a fine of up to nearly $2.4 million for hosting an unauthorized radio broadcast.

The FCC Media Bureau’s Audio Division will now accept letter requests from AM stations seeking authorization to operate with increased power for the two hours pre-sunrise or post sunset, a public notice said Thursday. “Once an AM station requesting PSRA and/or PSSA has received the operating parameters calculated by the Audio Division for such authorized operation, it may commence such operation immediately,” the PN said.

The 11th U.S. Circuit Court of Appeals asked Gray Television and the FCC Wednesday to prepare supplemental briefs on the effects of the U.S. Supreme Court decision overruling Chevron deference (see 2406280043) on Gray’s pending appeal of a $518,000 forfeiture order. Oral argument in the 11th Circuit case was held in May (see 2405150055). The case concerns the FCC’s ruling that Gray violated an FCC rule -- often called Note 11 -- barring stations from using affiliation deals to skirt ownership limits. Gray has argued that before the FCC enforcement action, the rule was used only to bar swaps of station affiliation, while Gray’s 2020 deal involved the outright purchase of a station’s affiliation. The 11th Circuit order directs Gray and the FCC to file supplemental briefs “addressing whether and to what extent” the Supreme Court's Loper Bright Enterprises v. Raimondo ruling “impacts the analysis on the appropriate deference to afford the FCC’s interpretation of Note 11 in this case.” Broadcast attorneys told us the request for supplemental briefs is likely a positive sign for Gray -- at oral argument a three-judge panel appeared split on the FCC’s interpretation of Note 11. Gray and the FCC didn’t comment. The order gives Gray 14 days to file a supplement. Once that is filed, the FCC has 14 days for a response, and after that filing, Gray has an additional seven days for a final supplemental filing.

The Federal Emergency Management Agency endorsed NAB's proposal for a software-based replacement for emergency alert system equipment, NAB and several broadcasters said in an ex parte meeting last week with Public Safety Bureau staff, according to a filing in docket 15-94. The filing said the replacement would make it easier to improve EAS systems with increased accessibility or multiple languages. NAB proposed the software replacement for physical EAS boxes in December 2022 (see 2306020064). The proposal would be voluntary and able to operate if internet or cloud connectivity is interrupted, the filing said. NAB and the broadcasters -- including iHeartMedia, New York Public Radio and Cox media representatives -- also told the agency they agreed with FEMA objections to an agency proposal to facilitate multilingual EAS alerts with prerecorded templates (see 2404100083). “The costs of the FCC’s approach will outweigh any minor, speculative benefits,” the filing said.

Radio Communications Corporation’s appeal of the FCC’s implementation of the 2023 Low Power Protection Act should be rejected because “Congress meant what it said” when it authored the statute, the FCC told the U.S. Court of Appeals for the D.C. Circuit in a final brief Friday. The text of the LPPA is “unambiguous,” the agency argued. The FCC “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the brief said. That “straightforward conclusion” means RCC is ineligible for a Class A license and resolves the case, the FCC said. The LPPA “does not provide unbounded protection for low power stations. Nor can any unexpressed Congressional purpose override the statute’s plain textual commands.” In addition, the FCC said its use of Nielsen DMAs isn't unconstitutional. “Agencies are free to rely on private entities to provide factual information,” the FCC said. “Doing so here at Congress’s direction violated no constitutional principle.” The court doesn’t need to rule on RCC’s objections to LPPA requirements for local programming or on claims that Class A stations are entitled to mandatory cable carriage because RCC isn’t eligible to be a Class A licensee, the brief said. “Largely ignoring the statute’s plain text,” RCC “fundamentally misreads the Low Power Protection Act,” the brief added.