NAB’s legal challenge of an FCC Media Bureau public notice...

PN was issued on delegated authority, and should have been challenged at the commission-level before being brought to the court, said a D.C. Circuit order. To obtain judicial review of an order issued by FCC staff pursuant to delegated authority, the association was required to fulfill the “condition precedent” of filing an application for review by the FCC of the bureau’s decision, and to wait until the FCC ruled on the application, the order said. The difficulty of obtaining judicial review of the processing guidelines was likely why they were issued under delegated authority, industry attorneys had told us (CD March 14 p9). Since the FCC has to vote to hear applications for review of bureau-level decisions, they can be indefinitely stalled, the attorneys said. NAB had argued that several letters filed with the FCC asking it to review the processing guidelines were a sufficient stand-in for an application for review (CD June 5 p16) but the court disagreed. Because of the dismissal, a motion from Prometheus Radio Project and other groups to consolidate the case with the other sharing arrangement proceedings was declared moot in the same order. Associated court challenges by the NAB to the FCC’s rules for attributing joint sales agreements and by Prometheus to the closing of the 2010 quadrennial review remain active, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represents Prometheus.