FCC: 11th Circuit Should Reject Gray Call for Briefs on Jarkesy
The 11th U.S. Circuit Court of Appeals’ precedent and the Communications Act should prevent the court from approving Gray Television’s motion (see 2408140057) that calls for filings on whether U.S. Supreme Court’s SEC v. Jarkesy ruling on agency enforcement actions…
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(see 2407250030) should apply in Gray’s appeal of a $518,000 FCC forfeiture order, the FCC said in a response filing Monday. “That is a wholly new issue in this case,” the FCC said, arguing that Gray could have challenged the FCC’s enforcement authority earlier in the case, when the Jarkesy litigation was ongoing. “Instead, Gray waited until six weeks after the Supreme Court’s decision in Jarkesy—when this case had long been briefed and argued—to seek leave to challenge the FCC’s enforcement procedures for the first time,” the FCC said. “This Court has repeatedly declined to consider new claims in analogous circumstances.” Gray never suggested in prior filings in the case that the FCC’s enforcement proceeding was invalid because Gray was entitled to a jury trial, the FCC said. The Communications Act “forecloses judicial review of issues on which the FCC had no ‘opportunity to pass’ during the administrative proceeding,” the FCC said.