Federal Communications Commission	DA 19-81 


Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of

Tribune Media Company
(Transferor)

and

Nexstar Media Group, Inc.
(Transferee)

Consolidated Applications for Consent to 
Transfer Control 
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)      MB Docket No. 19-30
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)      File No. BTCCDT 20190107ADJ, et al.
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ORDER

Adopted:  February 14, 2019						Released:  February 14, 2019

By the Chief, Media Bureau:  

1. Tribune Media Company (Tribune) and Nexstar Media Group, Inc. (Nexstar, jointly Applicants) have filed a set of applications (Nexstar Applications) with the Federal Communications Commission (Commission) seeking consent to the transfer of control of subsidiaries holding the licenses of full-power broadcast television stations (and related broadcast auxiliary facilities), low-power television stations, TV translator stations and radio stations from Tribune to Nexstar. The jointly filed applications are listed in the Attachment to this Order. Copies of the applications are available in the Commission’s Consolidated Database System (CDBS).
 Concurrently with this Order, the Commission has released a Public Notice seeking comment on the Nexstar Applications. Media Bureau Establishes Pleading Cycle for Applications to Transfer Control of Tribune Media Company to Nexstar Media Group, Inc. and Permit-But-Disclose Ex Parte Status for the Proceeding, Public Notice, MB Docket No. 19-30, DA 19-82 (Med. Bur. rel. Feb. 14 2019) (Public Notice).  The Public Notice established March 18, 2019, as the date for filing comments and petitions to deny; April 2, 2019 as the deadline for filing responses to comments and oppositions to petitions to deny; and April 9, 2019 as the deadline for filing replies to responses and oppositions to petitions to deny.  The Public Notice also established the proceeding as permit-but-disclose for ex parte purposes.
  In connection with the Nexstar Applications, the parties have also filed a motion for waiver of  Section 73.3518, See Comprehensive Exhibit to the Nexstar Applications at 34.
 the Commission’s inconsistent application rule. 47 CFR § 73.3518 (“While an application is pending, no subsequent inconsistent or conflicting application may be filed by or on behalf of or for the benefit of the same applicant, successor, or assignee.”).
  For the reasons stated below, we grant the motion.
2. Background. On June 28, 2017, Tribune and Sinclair Broadcast Group, Inc. (Sinclair) filed applications seeking Commission consent to the transfer of control of Tribune licensee subsidiaries to Sinclair (Sinclair Applications) as part of a proposed merger between Sinclair and Tribune. Media Bureau Establishes Pleading Cycle for Applications to Transfer Control of Tribune Media Company to Sinclair Broadcast Group, Inc. and Permit-But-Disclose Ex Parte Status for the Proceeding, MB Docket No.17-179, Public Notice, 32 FCC Rcd 5481 (MB 2017).
  The Tribune subsidiaries that are the subject of the Sinclair Applications are the same ones at issue in this proceeding.  Under the Commission’s inconsistent application rule, “[w]hile an application is pending, no subsequent inconsistent or conflicting application may be filed by or on behalf of or for the benefit of the same applicant.” 47 CFR § 73.3518.
  Because it is not possible for the Commission to grant both the Nexstar Applications and the Sinclair Applications, it cannot accept the subsequently filed Nexstar Applications for filing, absent a waiver. See Comprehensive Exhibit at 34.
  On July 19, 2018, the Commission released the Sinclair HDO, referring the Sinclair Applications to an Administrative Law Judge (ALJ) for an evidentiary hearing to “resolve substantial and material questions of fact” and to determine whether the applications should be granted. See Applications of Tribune Media Company (Transferor) and Sinclair Broadcast Group, Inc. (Transferee), Hearing Designation Order, MB Docket No. 17-179, 33 FCC Rcd 6830, 6831, para. 3 (2018) (Sinclair HDO).
  As required by the Sinclair HDO, the Media Bureau has held the Sinclair Applications in abeyance pending a final order in the proceeding, which remains before the ALJ with no hearing date yet established. Id.  
  In the Sinclair HDO, the Commission explained that the Sinclair Applications are restricted under the ex parte rules. Id. at n.6.  See 47 CFR § 1.1208.

3. According to the Applicants, because Tribune terminated its merger agreement with Sinclair on August 9, 2018, it no longer seeks, nor has any basis to seek, approval for the transfers of control contemplated by the Sinclair Applications. Comprehensive Exhibit at 35.
  Furthermore, on the same date the agreement was terminated, Sinclair filed a Notice of Withdrawal of Applications and Motion to Terminate Hearing  (Sinclair Notice). See Applications of Tribune Media Company (Transferor) and Sinclair Broadcasting Group, Inc. (Transferee), Sinclair Notice of Withdrawal of Applications and Motion to Terminate Hearing, MB Docket No. 17-179, File Nos. BTCCDT-20170626AGW, et al. (Aug. 9, 2018).
  On August 10, 2018, the Enforcement Bureau filed a response to Sinclair’s Notice in which it stated, inter alia, that it did not oppose dismissal with prejudice of the Sinclair Applications. See Applications of Tribune Media Company (Transferor) and Sinclair Broadcasting Group, Inc. (Transferee), Enforcement Bureau’s Response to Sinclair Notice of Withdrawal of Applications and Motion to Terminate Hearing, MB Docket No. 17-179, File Nos. BTCCDT-20170626AGW, et al. (Aug. 10, 2018).
  The Sinclair Notice is pending.  
4. Discussion. Without in any way prejudging the ongoing hearing proceeding, we find that a waiver of Section 73.3518 to allow for filing and consideration of the Nexstar Applications is appropriate based on the unique facts of this case.  Prior to filing the Nexstar Applications, Tribune terminated its previous agreement with Sinclair, and Sinclair attempted to withdraw the Sinclair Applications.  Both parties made clear, months before the filing of the Nexstar Applications, that they did not wish to pursue the Sinclair Applications.  Also, as stated above, the Enforcement Bureau has stated that it does not oppose dismissal with prejudice of the Sinclair Applications.  Although the Sinclair Applications remain pending, because Sinclair and Tribune no longer seek the grant of those applications, they are not as a practical matter inconsistent or in conflict with the Nexstar Applications.  Thus, waiving Section 73.3518 to allow for filing and consideration of the Nexstar Applications does not undermine the purpose of the rule to avoid a waste of resources, prejudice to other applicants, or delay in service to the public. Hispanic Broadcasting Institute, Inc., Memorandum Opinion and Order, 30 FCC Rcd 10560, 10562, para. 4 (2015).
  Recognizing that the decision regarding the disposal of the Sinclair Applications, the resolution of the issues pending in those applications, and the impact of such a resolution on the parties to that proceeding rests with the ALJ in the first instance, we believe that processing the Nexstar Applications, putting them out for public comment, and commencing staff review is administratively efficient and will facilitate public participation in this process.  Therefore, in these unique circumstances, we waive Section 73.3518 of our rules to permit filing of the Nexstar Applications. We remind interested parties that the applications designated for hearing in the HDO are restricted under our ex parte rules.  Sinclair HDO, 33 FCC Rcd at 6831, n.6.  Ex parte presentations with respect to these applications are prohibited until the proceeding is no longer subject to administrative reconsideration or review or judicial review. 47 CFR § 1.1208.

5. ACCORDINGLY, IT IS ORDERED, That the Motion for Waiver of 47 CFR Section 73.3518 by Tribune Media Company and Nexstar Media Group, Inc. is GRANTED. This action is taken pursuant to authority delegated by Section 0.283 of the Commission’s Rules. 47 CFR § 0.283.

 

						FEDERAL COMMUNICATIONS COMMISSION




						Michelle M. Carey 
						Chief, Media Bureau 


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