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.”
