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FCC Response - Nat'l Assoc. of Broad. v. FCC & USA (D.C. Cir.)

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Released: June 26, 2014
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USCA Case #14-1072 Document #1499134 Filed: 06/24/2014 Page 1 of 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

National Association of Broadcasters,

)

Petitioner, )

)

v.

)

No. 14-1072

)

Federal Communications Commission )

and United States of America,

)

Respondents. )

National Association of Broadcasters,

)

Petitioner, )

)

v.

)

No. 14-1092 (and

) consolidated cases)

Federal Communications Commission

)

and United States of America,

)

Respondents. )

RESPONSE OF FEDERAL COMMUNICATIONS COMMISSION

TO CONTINGENT MOTION TO CONSOLIDATE

On June 11, 2014, several movants for intervention in Case No. 14-1072

filed a contingent motion to consolidate that case with some other cases that have

already been consolidated, including Case No. 14-1092. In Case No. 14-1072, the

National Association of Broadcasters (“NAB”) seeks review of a March 2014

Public Notice issued by the FCC’s Media Bureau.1 In Case No. 14-1092, NAB

petitions for review of an April 2014 order by the FCC concerning the agency’s

                                                            

1 Public Notice, Processing of Broadcast Television Applications Proposing

Sharing Arrangements and Contingent Interests, DA 14-330 (released March 12,

2014) (“Public Notice”).

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USCA Case #14-1072 Document #1499134 Filed: 06/24/2014 Page 2 of 5

review of its media ownership rules.2 NAB’s petition in Case No. 14-1092 has

already been consolidated with other petitions for review of the April 15 Order

filed by Howard Stirk Holdings (No. 14-1090), Nexstar Broadcasting (No. 14-

1091), and Prometheus Radio Project (No. 14-1113). Prometheus is one of the

parties that filed the motion to consolidate Case No. 14-1072 with these cases.

The FCC has filed a motion to dismiss Case No. 14-1072. As we explain in

that motion, NAB’s petition for review of the Media Bureau’s Public Notice

should be dismissed because the Court lacks jurisdiction to review action taken by

FCC staff pursuant to delegated authority. See 47 U.S.C. § 155(c)(7); Int’l

Telecard Ass’n v. FCC, 166 F.3d 387 (D.C. Cir. 1999); Richman Bros. Records,

Inc. v. FCC, 124 F.3d 1302 (D.C. Cir. 1997). If the Court grants the motion to

dismiss Case No. 14-1072, the motion to consolidate that case with the petitions

for review of the FCC’s April 15 Order will become moot.

In the event that the Court does not dismiss Case No. 14-1072, the FCC

believes that the contingent motion to consolidate should be granted. Case No.

14-1072 and Case No. 14-1092 involve the same parties (NAB, the FCC, and the

United States). Moreover, these cases (as well as the other cases that have already

been consolidated with Case No. 14-1092) involve related issues concerning the

                                                            

2 2014 Quadrennial Regulatory Review – Review of the Commission’s Broadcast

Ownership Rules and Other Rules Adopted Pursuant to Section 202 of the

Telecommunications Act of 1996, FCC 14-28 (released April 15, 2014) (“April 15

Order”).

2 

 

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USCA Case #14-1072 Document #1499134 Filed: 06/24/2014 Page 3 of 5

review of broadcast transactions under the FCC’s media ownership rules. Indeed,

although NAB opposes consolidation, it admits that there is “some overlap

between the April 15 Order and the Public Notice” insofar as “both address

broadcast television sharing arrangements.” NAB Opposition to Contingent

Motion to Consolidate, filed June 19, 2014, at 10. And it is settled practice in this

Court that “cases involving essentially the same parties or the same, similar, or

related issues, may be consolidated.” D.C. Cir. Handbook of Practice and Internal

Procedures 23 (2013). Therefore, in the event that Case No. 14-1072 is not

3 

 

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USCA Case #14-1072 Document #1499134 Filed: 06/24/2014 Page 4 of 5

dismissed, we agree with the movants that consolidation of all these cases would

serve the interest of judicial economy and efficiency.

Respectfully submitted,

Jonathan B. Sallet

General Counsel

David M. Gossett

Acting Deputy General Counsel

Jacob M. Lewis

Associate General Counsel

/s/ James M. Carr

James M. Carr

Counsel

Federal Communications Commission

Washington, D.C. 20554

(202) 418-1740

June 24, 2014

4 

 

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USCA Case #14-1072 Document #1499134 Filed: 06/24/2014 Page 5 of 5

14-1072

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

National Association of Broadcasters, Petitioner

v.

Federal Communications Commission and the

United States of America, Respondents

CERTIFICATE OF SERVICE

I, James M. Carr, hereby certify that on June 24, 2014, I electronically filed

the foregoing Response Of Federal Communications Commission To

Contingent Motion To Consolidate with the Clerk of the Court for the

United States Court of Appeals for the D.C. Circuit by using the CM/ECF

system. Participants in the case who are registered CM/ECF users will be

served by the CM/ECF system.

Helgi C. Walker

Jane E. Mago

Gibson, Dunn & Crutcher LLP

Jerianne Timmerman

1050 Connecticut Ave., N.W.

National Association of Broadcasters

Washington, D.C. 20036

1771 N Street, N.W.

Counsel for: NAB

Washington, D.C. 20036

Counsel for: NAB

Robert J. Wiggers

Kristen C. Limarzi

Angela J. Campbell

U.S. Department of Justice

Andrew Jay Schwartzman

Antitrust Division, Room 3224

Institute for Public Representation

950 Pennsylvania Avenue, N.W.

Georgetown University Law Center

Washington, D.C. 20530-0001

600 New Jersey Avenue, NW

Counsel for: USA

Washington, D.C. 20001

Counsel for Free Press, et al.

/s/ James M. Carr

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