The FCC has told the U.S. Court of Appeals for the D.C. Circuit that it must dismiss the National Association of Broadcasters petition for review of the FCC's "staff-level" public on how the Media Bureau will vet TV station deals involving sharing arrangements.
NAB says the guidance functions as a "categorical presumption" against such deals--shared services agreements, joint sales agreements, and others--which "adversely affects" NAB and its members by rendering such previously allowed deals invalid.
The FCC says the guidance is to give broadcasters notice that TV station sales involving sharing agreements with associated financial arrangements like an option to purchase a station or guaranteed financing would get heightened and likely time-consuming reviews in case they wanted to rethink those given that guidance.
Commission lawyers argue that the Media Bureau guidance issued in the March 12 public notice is not a final order--NAB argues it is a final agency action--and since the court's jurisdiction over FCC decisions extend "only to final orders," the court does not have jurisdiction to review it.
“Congress did not intend that the court review a staff decision that has not been adopted by the Commission itself," the FCC said, quoting the D.C. court itself from a previous opinion.
They also point out the appeals court has previously found that petitions for review filed after a bureau decision but before a final commission resolution are "incurably premature."
And even if the court could review the public notice, NAB did not file an official application for review, says the FCC, which would also be grounds for dismissal.
The FCC concedes that NAB did raise objections to the notice in a couple of letters, including a May 1 letter asking the commission to rescind the notice, but that those did not constitute an application for review. The lawyers said that even if the May 1 letter "might be fairly deemed" an application for review, it was not filed in a timely fashion because it came more than 30 days after the March 12 public notice.
"In sum," said the FCC, "NAB failed to exhaust its administrative remedies and presents no valid reason why this failure should be excused.”
