There are definite rumblings inside the Beltway that the current FCC may have teed up a constitutional challenge to the long-standing public-interest standard for determining whether to approve or reject a broadcast merger.

The potential flashpoint was the FCC Media Bureau’s decision to designate the Standard General-Tegna merger proposal for hearing before an administrative law judge, a delay that often is a death knell for deals.

One obstacle to a court challenge based on the designation would be if the parties folded their tents before that hearing, which would mean there was no final Federal Communications Commission decision to challenge.

While the Justice Department or Federal Trade Commission review mergers based on antitrust issues, the Communications Act instructs the commission to go beyond strict competition issues to consider the deal’s impact on “the public interest, convenience and necessity.’

National Association of Broadcasters president Curtis LeGeyt and CEO, reacting to the FCC decision signaled something was definitely wrong with a standard that allows the FCC to extract concessions, whether or not they are within its expertise or mandate. 

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Broadcasting & Cable | by John Eggerton