The 11th U.S. Circuit Court of Appeals’ precedent and the Communications Act should prevent the court from approving Gray Television’s motion (see 2408140057) that calls for filings on whether U.S. Supreme Court’s SEC v. Jarkesy ruling on agency enforcement actions (see 2407250030) should apply in Gray’s appeal of a $518,000 FCC forfeiture order, the FCC said in a response filing Monday. “That is a wholly new issue in this case,” the FCC said, arguing that Gray could have challenged the FCC’s enforcement authority earlier in the case, when the Jarkesy litigation was ongoing. “Instead, Gray waited until six weeks after the Supreme Court’s decision in Jarkesy—when this case had long been briefed and argued—to seek leave to challenge the FCC’s enforcement procedures for the first time,” the FCC said. “This Court has repeatedly declined to consider new claims in analogous circumstances.” Gray never suggested in prior filings in the case that the FCC’s enforcement proceeding was invalid because Gray was entitled to a jury trial, the FCC said. The Communications Act “forecloses judicial review of issues on which the FCC had no ‘opportunity to pass’ during the administrative proceeding,” the FCC said.

Former President and current Republican Presidential Nominee Donald Trump referred to ABC News as “ABC FAKE NEWS” in a post on Truth Social Monday and reportedly called ABC “the single worst network for unfairness” in a campaign appearance the same day. He said ABC “really should be shut out” of hosting presidential debates and suggested he could pull out of his scheduled Sept. 10 debate on the network against Vice President Kamala Harris, the Democratic presidential nominee. “Why would I do the Debate against Kamala Harris on that network?” the Truth Social post said. While in office and on the campaign trail, Trump has called for FCC action against networks and media outlets over their news content (see 2401170050). Monday, Trump also referenced an incident during the 2016 election where current ABC News contributor Donna Brazile, then Democratic National Committee interim chair, improperly aided Hillary Clinton in a CNN town hall, and reports that Disney executive Dana Walden is a friend of Harris'. “Will panelist Donna Brazil [sic] give the questions to the Marxist Candidate like she did for Crooked Hillary Clinton? Will Kamala’s best friend, who heads up ABC, do likewise.” In a later post on Truth Social, Trump also said the “FAKE NEWS MEDIA REMAINS SILENT IN ORDER TO PROTECT THE WORST ADMINISTRATION IN THE HISTORY OF OUR COUNTRY.” Disney and Harris's campaign didn't comment.

The FCC Media Bureau extended commenting deadlines for the agency’s NPRM on AI political ad disclosures, but the extension is not as long as NAB and the Motion Picture Association requested (see 2408120034). Comments are now due Sept. 19 and replies Oct. 1; the trade groups wanted them pushed to Oct. 4 for comments and Nov. 4 for replies. “We find that an extension of the comment and reply comment deadlines by 15 days and 22 days, respectively, (rather than the 30 days and 45 days requested by the Joint Filers) is sufficient to allow for the preparation of meaningful comments and reply comments,” a Media Bureau order said Thursday. Although some were concerned that the FCC was aiming an eventual rulemaking on AI political ads to be effective for the 2024 presidential election, the extension appears to make that impossible. Election Day is Nov. 5.

The FCC Media Bureau rejected eight Texas low-power FM applications that were filed on behalf of separate outreach organizations but appeared connected to a single church, said a letter in Monday's Daily Digest. The LPFM window rules require applicants to certify that they don’t have other attributable broadcast interests, including LPFM applications. “The many commonalities among the Applications -- in particular, the common use of broadcast facilities and headquarters, contact information, and mission statements -- suggest a significant degree of organizational interconnectedness,” Audio Division Chief Albert Shuldiner wrote in the letter dismissing the applications. The applications were on behalf of individual outreach organizations for the Christian Life Church in Lubbock, Texas. LPFM entity REC Networks filed informal objections noting connections between the groups. The outreach groups argued their applications were allowed under LPFM rules that prevent local chapters of large organizations from being considered attributable to the larger group if the local chapters are “separately incorporated” with “a distinct local presence and mission.” The outreach groups aren’t separately incorporated and their use of shared addresses and facilities shows they don’t have a distinct local presence, the Media Bureau said. They also failed to show they had available broadcast sites, the letter said.

The FCC’s proposed disclosure rules for political ads that use AI-created content “are a natural and common-sense extension” of its mandates for ensuring transparency in broadcasting and political ads, Public Citizen, Campaign Legal Center, the National Organization for Women and 39 other public interest groups said in a letter to the Media Bureau Thursday. “The proposed rules are especially important because broadcasters interpret the FCC’s current rules as prohibiting them from requiring disclosure of AI-generated content,” the letter said. “We urge the FCC to adopt these rules promptly.” NAB didn’t comment.

The 11th U.S. Circuit Court of Appeals should apply the U.S. Supreme Court’s recent ruling on agency enforcement actions to the FCC’s $518,000 forfeiture order against Gray Television, as well as SCOTUS’ ruling against Chevron deference, Gray said in a motion and supplemental reply brief Wednesday. The court previously ordered that the FCC and Gray file briefs weighing in on the application of the high court’s Loper Bright ruling against Chevron deference but didn’t do so for SEC v. Jarkesy, which is seen as potentially requiring jury trials for many agency enforcement actions. Jarkesy “raises the fundamental question of whether the FCC had the authority in the first place to conduct the proceeding that led to the forfeiture the FCC asks the Court to uphold,” Gray said in a motion. “Under these circumstances, Gray proposes as the most prudent course of action supplemental briefing on whether Jarkesy invalidates the FCC’s Forfeiture Order.” If the 11th Circuit were to find that the FCC’s claim against Gray is similar to the SEC forfeiture in Jarkesy, “then not only did Gray have the right to a jury trial, but also the Seventh Amendment prohibited Congress from assigning adjudication of the claim to the FCC,” Gray said. The court must also consider whether the FCC has statutory authority over Gray’s purchase of a network affiliation under Loper Bright, Gray Television said in a supplemental reply brief Wednesday. The FCC had argued that the court shouldn’t take up the agency’s authority because it was outside the scope of the supplemental briefs the court ordered (see 2408080052) and wasn’t previously raised in the proceeding by Gray. The Loper Bright opinion instructs courts to first determine the boundaries of an agency’s authority before ruling on whether an agency has engaged in “reasoned decision-making” within that authority, Gray said. The FCC also raised the issue of its statutory authority by discussing it in the forfeiture order it issued against Gray, Wednesday’s filing said. The Loper Bright decision “commands” that federal courts “must review all questions of law without deference to the agency whose action is under review,” Gray said.

Standard General and its founder Soohyung Kim filed an amended complaint Friday in an April lawsuit that accuses FCC Chairwoman Jessica Rosenworcel, Allen Media CEO Byron Allen, Dish CEO Charlie Ergen and others of conspiring to block Standard’s $8.6 billion attempted purchase of Tegna last year (see 2306010077). The amended complaint is largely similar to one filed in April (see 2404250059) but includes an additional count, which argues that the FCC violated the Communications Act when it considered Allen as an alternative buyer to Standard. “The possibility of an alternative buyer for TEGNA -- Mr. Allen -- infected the agency’s entire treatment of Standard General’s license-transfer application,” the amended complaint said. Considering an alternative buyer constitutes “an extreme agency error” that should be subject to judicial review, and the court should enjoin the FCC from doing so for Standard’s future transactions, the complaint said. “Mr. Kim has had to alter Standard General’s immediate broadcast strategy” to avoid deals that fall under FCC review to prevent future discrimination against Standard, the complaint said. “Without declaratory or injunctive relief, he cannot pursue larger deals that he would otherwise be pursuing and that require the FCC’s pre-approval.” The amended complaint also calls out the timing of meetings and phone calls Media Bureau Chief Holly Saurer and Rosenworcel had with Ergen and I Street Advocates attorney David Goodfriend, who has represented Dish, Allen and unions that opposed Standard/Tegna. “Mr. Ergen and Chairwoman Rosenworcel had a scheduled breakfast to occur within a week of the shot clock starting, Mr. Goodfriend and Ms. Saurer had a scheduled meeting the same day the objectors first filed, and Mr. Allen called Mr. Kim the day after the FCC ordered Standard General to produce highly sensitive documents,” the complaint said. The defendants “expressly or tacitly entered into an agreement to work with each other and with Chairwoman Rosenworcel and Ms. Saurer to thwart the Standard General-TEGNA deal,” the amended complaint said. The FCC, Dish, Allen and the unions have until Sept. 9 to respond, according to the court’s orders. Dish, Allen Media, the FCC and Goodfriend didn’t comment.

The FCC Media Bureau granted Microsoft’s request to withdraw its petition of reconsideration against FCC rules easing the creation of broadcaster-distributed transmission systems, according to a public notice in Friday’s Daily Digest. Microsoft dropped the petition in a filing posted Tuesday (see 2408060043). The DTS order was intended to aid the ATSC 3.0 transition. Microsoft had raised concerns that the order would lead to broadcasters interfering with devices using the TV white spaces.

The FCC Enforcement Bureau proposed a $14,000 penalty for Audacy over allegations that it violated the agency’s contest rules by not selecting and notifying winners of a radio contest according to the contest’s stated terms, a notice of apparent liability in Friday’s Daily Digest said. The NAL is a response to a complaint about a 2021 “National Cash Contest” Audacy conducted for 21 days on 194 stations. Under the contest’s terms, 11 times daily listeners could listen for a keyword and win $1,000 by submitting that keyword to the station within the hour it was announced. “One national winner was to be selected randomly from each hour’s eligible entries from all participating stations, for a total of 297 (27x11) opportunities to win,” the NAL said. The contest terms said winners would be notified within 72 hours of selection and get their prize within eight to 12 weeks. After receiving a letter of inquiry (LOI) from the EB, Audacy admitted it “did not act timely in selecting and/or notifying 50 winners out of the 297 time slots, which is 16.8% of the potential winners.” Audacy said part-time employees' performance caused the mishap and that it sent out the remaining contest winnings after receiving the LOI. The NAL said that wasn’t sufficient. “We hold that the Licensee’s conduct constitutes an apparent willful violation of the requirement of section 73.1216 of the Commission’s rules to conduct the Contest ‘substantially as announced or advertised,’” the NAL said.

The U.S. Supreme Court’s decision eliminating Chevron deference shouldn’t affect the 11th U.S. Circuit Court of Appeals' approach to Gray Television’s appeal of an FCC $518,000 forfeiture order, the agency said in a supplemental brief Wednesday. The 11th Circuit requested supplemental briefs from the FCC and Gray after SCOTUS’ Loper Bright v. Raimondo decision (see 2407110058). The agency applied the best reading of its rule against affiliate swaps and so doesn’t require special deference for the court to rule in its favor, the FCC said. Gray’s argument that its purchase of a station affiliation in Anchorage didn't “result” in a top-four duopoly because Gray already owned such a duopoly “is not the best or most natural reading” of the text of the FCC’s rules, the agency said. The court should also favor the FCC’s interpretation of its own rules under another SCOTUS precedent that wasn’t affected by Loper Bright, Kisor v. Wilkie, the FCC said. Kisor requires that the court consider a regulation as if there were no agency interpretation, but if ambiguity remains, it allows the court to conclude that the agency interpretation may be appropriate. Gray has argued that the Loper Bright decision invalidated Kisor precedent. “This Court is not the proper forum to revisit binding Supreme Court precedent,” the FCC said. The 11th Circuit shouldn’t consider Gray’s arguments that the FCC doesn’t have statutory authority over the sale of a station’s affiliation because Gray didn’t raise the argument earlier in the case and because it's outside the scope of the supplemental brief the court requested, the agency said. Gray “improperly expanded the scope of the supplemental briefing, and the court may not reach arguments on which the FCC had no ‘opportunity to pass’ in the administrative proceedings,” the FCC said.