UPDATE: A federal judge orders a hearing in ABC‘s First Amendment lawsuit against the FCC for sometime during the week of October 5.
But U.S. District Judge Loren L. AliKhan signaled that there would a hearing sooner than that if the FCC took action on its review of ABC station licenses.
The network is seeking a temporary restraining order to halt the FCC’s early renewal proceedings for broadcast licenses for the network’s eight owned stations. ABC claims in its lawsuit that the FCC’s regulatory action is Trump administration retaliation over its content, including late-night host Jimmy Kimmel and ABC News reporting.
The FCC has yet to take action, but in its lawsuit ABC suggested that the agency was close to issuing a hearing designation order, which would put the license renewals up to an administrative judicial process. The network said that such an action would in and of itself punitive, as it will bog down the station renewals for an extended period of uncertainty.
The judge wrote in her order that if the FCC were to issue such a hearing designation order, she would hold a hearing on the TRO the next business day.
The judge also set a briefing schedule for next month, with the FCC’s defense due on Sept. 3, ABC’s reply on Sept. 17 and the agency’s response by Sept. 24.
The judge’s schedule aligns with that proposed by the FCC; ABC had requested a hearing as soon as Friday. But given the judge’s order, the FCC may hold off on any action as it would face an earlier hearing and as it seeks to dismiss the lawsuit.
PREVIOUSLY: ABC is proposing a hearing as soon as Friday on its request for a temporary restraining order in its First Amendment lawsuit against the FCC, while the agency signaled that it plans to challenge the litigation as premature.
The plans were laid out on Thursday on in a joint status report from the parties, as requested by the federal judge in the case, Loren L. AliKhan.
The network sued the FCC on Tuesday, claiming that the agency’s order for an early renewal of its eight station broadcast licenses was highly unusual and part of a pattern of using regulatory threat to retaliate on content and news coverage the Trump administration disfavors. In the immediate term, they are asking for a temporary restraining order to halt the renewal proceedings, characterizing them as a threat that chills the network’s free speech rights.
In the filing, ABC’s legal team proposed a hearing for Friday or next week, on Aug. 24 and 25, and the FCC said that its lawyers would be available on those dates.
In the meantime, the FCC’s lawyers, calling ABC’s schedule “highly expedited,” proposed a briefing schedule for next month, and also wrote that they planned to file a motion to dismiss. They argued that the D.C. Circuit Court of Appeals, not the district court, had jurisdiction, and that the network had to allow the regulatory process to play out.
The agency’s legal team claimed that the network was trying to “circumvent an administrative proceeding followed by judicial review in a court of appeals.”
They wrote, “Although framed as a First Amendment retaliation claim, Plaintiffs’ chief concern appears to be the Commission’s exercise of its statutory authority to ensure that broadcast licensees operate in the public interest, and its conduct of an administrative process that could include (but has not yet been determined to require) a hearing on Plaintiffs’ license qualifications and, depending on the results of any such hearing, hypothetical future license revocations.”
In its lawsuit, ABC’s legal team indicated that they were taking action in anticipation of the FCC designating the license renewals for an administrative hearing, a potentially lengthy process that only added to the uncertainty of whether the stations’ licenses would be revoked.
In the latest filing, its legal team wrote that they have “raised a textbook First Amendment retaliation claim. Courts in this District have already recognized that such claims belong in federal court, not before the very agency accused of engaging in First Amendment retaliation.”
The network’s legal team argued that they have already “documented the irreparable harm [ABC is] suffering, and Defendants’ proposed solution would further exacerbate those harms.”
The network also referred to the potential of the FCC designating the license renewal for a hearing as “sanctions.” The FCC said that it would give the court 48 hours notice before doing so.
“Defendants effectively seek permission to impose draconian sanctions with only 48 hours’ notice, while continuing to hang the threat of those sanctions over Plaintiffs’ heads and remaining free to engage in other forms of retaliation,” the network’s lawyers wrote in the filing.
The FCC said that a hearing designation order would not be a “sanction,” but “would simply set in place a further administrative process in which Plaintiffs would have the opportunity to make their case.”
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