Two years ago, the Supreme Court, in Loper Bright Enterprises v. Raimondo, ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. In rejecting so-called Chevron deference, the Court seemed to promise a new era of bureaucratic accountability. But that promise will prove to be a false one if agencies can resort to hijinks to avoid judicial review altogether.
Fortunately, the D.C. Circuit might thwart one prominent instance of agency hijinks.
Brief background: Federal law forbids any company from owning commercial television broadcast stations that together have more than a 39% national audience reach. The proposed merger of Nexstar Media and TEGNA—the largest broadcast merger in history—would result in a company that far exceeds that threshold. Instead of reviewing the proposed transfer of TEGNA’s broadcast licenses to Nexstar, the Federal Communications Commission delegated (or purported to delegate) the review to its Media Bureau. The Media Bureau concluded (on dubious grounds) that it had authority to waive the 39% cap and on March 19 approved the transfer of the broadcast licenses. Nexstar and TEGNA treated that Media Bureau determination as a green light to consummate the merger and have already taken steps that they have told courts are irreversible.
Competitors immediately sought the FCC’s review of the Media Bureau’s order. But the FCC has failed to take any action in the many weeks since then, and at the same time it has maintained that competitors can’t obtain judicial review of the Media Bureau’s order. So the FCC is enabling the merger to proceed while effectively thwarting judicial review of the legality of the license transfers.
In an order last week, the D.C. Circuit directed the Federal Communications Commission to “state when it expects to satisfy its nondiscretionary obligation to ‘pass[] upon’ the pending application for review of the Media Bureau Order.” If the FCC’s answer is unsatisfactory, the court has signaled that it may grant petitions for a stay of the Media Bureau’s order.
Whatever your views of the Nexstar-TEGNA merger and of the merits of the 39% cap, if you want to ensure that federal agencies act lawfully, you should hope that the FCC does not succeed in evading judicial review and in thereby setting a template that it and other agencies will follow.