Gray Television is suing the Federal Communications Commission over its decision to fine the broadcaster over half a million dollars for an affiliation move in Alaska the regulator said violates its duopoly restriction.
That is according to an appeal filed late Wednesday (May 24) in the 11th U.S. Circuit Court of Appeals, whose jurisdiction includes Atlanta, where Gray is based.
The FCC concluded that Gray's purchase of the CBS affiliation from KTVA Anchorage, Alaska resulted in the equivalent of the purchase of a second top-four station in the market. It fined the station the maximum amount for what the FCC said was a violation of its prohibition on owning two of the top four stations in a market, unless it has done so through “organic growth,” meaning unless it owned both stations before they were in the top four due to increased ratings.
Gray owns two stations in the Anchorage market, NBC affiliate KYUU and KAUU, formerly KYES, which received the CBS affiliation purchased from KTVA.
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Gray says the FCC got it wrong on multiple counts: 1.) The FCC had no authority to regulate the purchase of the CBS programming because that was not a license transfer but a programming purchase; 2) the FCC's contention that the transfer of CBS programming was the “functional equivalent” of a transfer exceeds its authority because Congress did not authorize it in statute to regulate “functional equivalents;” and 3) the fine exceeds the FCC's authority and violates First Amendment because it “penalizes” Gray’s programming choices without furthering the “legitimate” government interest that any such regulation of speech must further.
Gray wants the court to vacate the fine. The appeal came after the FCC denied Gray's appeal of the decision to the commission.
The FCC vote to uphold the company's fine was 3-1, with Republican Brendan Carr voting with Democrats Jessica Rosenworcel and Geoffrey Starks. Republican commissioner Nathan Simington dissented.
The FCC first proposed the fine in July 2021, a first for the acquisition of a network affiliation. Gray appealed but the agency rejected the appeal.
