ABC Tells Judge That FCC Showed “Retaliatory Motive” By Ordering Early License Review Despite “Less Intrusive” Options

ABC‘s legal team told a federal judge on Monday that because the FCC ordered that it submit its station licenses for early renewal rather than a host of less-drastic options, the agency only underscored “their retaliatory motive.”

The network has asked a federal judge to halt the license review proceedings, arguing that it is a punitive action for First Amendment protected speech from the news division, late-night host Jimmy Kimmel and other content disfavored by Donald Trump.

When the FCC moved to an early renewal proceeding in April, it said that the unusual move was due to the lack of sufficient response by the network as part of an investigation into its diversity, equity and inclusion practices, which have been a target of the administration.

After a two-hour hearing last week, U.S. District Judge Loren AliKhan asked the FCC to submit an additional filing outlining the other options that were available to compel the network to comply with document requests.

In its filing on Friday, the FCC, represented by the U.S. attorney in Washington, D.C., said that the early renewal order was the “best tool for the task before the agency.”

The agency acknowledged that other options were available, including issuing administrative subpoenas, imposing monetary penalties and holding hearings.

“Asking whether the Commission might have chosen a different tool to combat Plaintiffs’ failure to provide complete responses in the anti-discrimination investigation does not address the operative question in this case: whether the agency lawfully elected to call for early renewal,” the government’s attorney argued in the filing.

Tools like administrative subpoenas and monetary penalties would require DOJ enforcement, the government attorney stated, while the agency launched an early renewal proceeding that included a public comment period.

In a filing on Monday, ABC’s legal team wrote, “Defendants’ own admissions leave no doubt as to why—Defendants sought to inflict maximal coercive pressure on the media company whose speech the Administration sought to curb, while deliberately evading judicial review.”

“Defendants’ excuses for not using a less intrusive tool to address the supposed discovery deficiency only underscore their retaliatory motive.”

The FCC has claimed that the D.C. Circuit has jurisdiction, not the district court, but that would likely require that the network wait until a decision was made on the license renewals. But Beth Wilkinson, who represented the network at last week’s hearing, warned that such a delay has the effect of chilling the network’s speech.

The network is seeking a preliminary injunction, but the judge has not said when she would issue a ruling.