Standard General's latest legal maneuvers are “highly unlikely” to succeed in rescuing Standard General’s proposed acquisition of Tegna, which is close to being killed by a long regulatory review, according to former FCC chief of staff Blair Levin.

Nearly a year after Tegna agreed to be acquired, the Federal Communications Commission’s Media Bureau designated the deal to be sent to an administrative law judge for a hearing, a process unlikely to be completed before Standard General’s financing agreements expire on May 22.

Levin, now policy adviser to New Street Research, noted that the deal must now go through several decision-makers. 

He said there is no deadline by which an administrative law judge is required to make a ruling. If the judge does not make a timely ruling, the matter would go to the full FCC.

Levin predicted FCC chair Jessica Rosenworcel is unlikely to bring the matter to a commission vote. That would lead Standard General and Tegna to file an extraordinary writ in a U.S. District Court.

If there were an FCC vote as the companies have sought, Levin said, it would likely be a 2-2 tie, “leaving the matter in limbo, with the parties again filing an extraordinary writ with the District Court.”  

What happens in federal court? Levin figures the court wouldn’t get the matter until April. That close to the deal’s expiration, the court could decide any decision would be irrelevant and, without a decision from the FCC, it could decide the case is not ripe for judicial review, Levin said.

If the court decided to rule on the merits, “even if the court agrees with the legal arguments in [Standard General and Tegna’s] petition, it cannot compel the FCC to approve the license transfer.”

The next step would be the U.S. Court of Appeals, but Levin said he is dubious the case would get there before the deal’s financing expires.

But even if the appeals court took the case and ruled in favor of Standard General and Tegna, the appeals court can’t force the FCC to transfer a license, Levin said. “The matter would have to return to the FCC, where again, the chair controls the timing.” ■

Blair Levin, former chief of staff to Democratic FCC chairman Reed Hundt, said the next FCC chair can do something on day one to increase transparency at the agency.

While various legislative reforms to the agency, including on comment periods and dockets, have passed a Democrat-controlled House, those reforms did not make it past the Republican-controlled Senate.

That balance of power may change after two Georgia run-off elections that will determine the control of the Senate, but Levin said the FCC does not have to wait to improve transparency and debate on pending actions.

Related: FCC's Pai Institutes Process Reforms

His answer: Add a second monthly meeting. The FCC is required by law to hold at least one of those a month. Levin said a second meeting could be used to tee up items that may be voted on in future meetings. Other commissioners would not be legally bound to attend, but it would be in their interests to be there so they could be part of the discussion, he said.

"Regularly holding fact-based, pre-decisional public meetings would force the FCC chair to be more transparent both about what proceedings are likely to be brought up in the near future and about the direction of those proceedings," he wrote in an opinion piece for the Day One Project. 

"This forward-looking monthly meeting would give the public information needed to provide meaningful input to the Commission prior to its decision-making," he said. "The meeting would also improve the Commissioners’ own ability to respond to policy recommendations."

One complaint from minority commissioners has been they were not given sufficient time to vet proposals before they were expected to vote on them. Levin said the second meeting would include briefings of all commissioners and the public on items at 60 days before a vote. 

The meetings would not include staff recommendations but rather state the problem/issue and range of alternative solutions. Levin, who was chief architect of the FCC's National Broadband Plan, points out that the approach was used "to great effect" during that process.

FCC chairman Ajit Pai did start making public the draft of items FCC chairs have historically circulated to commissioners three weeks before the meeting, a reform Levin acknowledges but does not particularly applaud. 

"[T]this reform has made no practical difference," he said, arguing that three weeks may be enough for lawyers to figure out and weigh in on, "but not enough for the public to digest dense documents and suggest changes."

The COVID-19 crisis "is shining a light" on five "critical gaps" in broadband and national emergency policies, including issues raised in the 9/11 Commission Report and the National Broadband Plan, according to Blair Levin, who headed the FCC group that produced the NBP a decade ago. He summarized the challenges as:

• Performance gaps.
• Coverage gaps.
• Security gaps.
• Utilization gaps.
• Information gaps.

Levin, who is now a nonresident senior fellow with the Metropolitan Policy Program at the Brookings Institution, proposes that a "new initiative should take what we’ve learned, both from the current crisis and otherwise, and use it to address" these critical gaps.

In a recent interview, Levin expanded on the points he addressed on the 10th anniversary of the release of the FCC National Broadband Plan in mid-March, which coincided with the beginning of the national COVID-19 lockdown.

Related: Levin: Coronavirus Will Expose Broadband Successes, Shortcomings

Wordsmith Levin rhetorically asked "Will We Mind the Gaps?" as he focused on using COVID-19 lessons to implement new broadband solutions in the health and communications infrastructure.

"There are urgent tasks for network operators that include ensuring peak capacity remains available, expanding coverage where possible and keeping customers on-line, by, for example, voluntarily suspending disconnections for late or non-payment," Levin said.

He cited the immense changes since 2010, notably the average broadband download speed of 4.1 Mbps a decade ago - totally inadequate for today's needs - which has now increased to nearly 140 Mbps, used by "tens of millions" of customers. Levin also mentioned FCC policies that have reallocated underused wireless frequencies for National Public Safety networks, which have been valuable in the current situation. Levin (with characteristic humility) contended those developments, stemming from the NBP, are bellwethers of what must be done in the next of phase of policy making.

The major challenges will come "after the crisis," when public and private authorities must collaboratively and "rationally" analyze the results of the stresses of the COVID-19 crisis and "take whatever action they require." He told me that, as with the NBP, policy development will involve Congress, the White House, local governments and "particularly ... private enterprises," with a nod to the need that companies understand and align the incentives in a structured plan.

Related:  Let’s Get America’s Internet Nonusers Online Now

Finding Footing Across the Gaps

Levin's analysis and recommendation lay out paths across each of the gaps he has identified that are being spotlighted through the COVID-19 crisis.

Performance gaps. "We’ll need a deep data dive to determine whether bottlenecks occurred, and if so, where and why? Actual usage data should also inform a fresh look at how we allocate spectrum between licensed, unlicensed and shared regimes." He cites the "the voluntary lending of unutilized spectrum," and asks if such policies should be adopted for other situations?

Coverage gaps. "The current crisis underscores [that] problems remain both in terms of access—sparsely-populated areas with no high-speed providers—and adoption—households that, for different reasons, do not subscribe to broadband even when it is available." Levin believes that his proposed initiative should collect accurate data from the COVID crisis to update, recapitalize, and improve universal service programs, which would support the goal of offering broadband services to unserved and underserved communities.

Security gaps. "As we move more office work, education, and socializing to the home on a permanent basis, we need to reevaluate network security." Although Levin acknowledges that individual companies should determine their own security requirements, some services - especially telehealth and public education - may require national standards. He also contends that small businesses would benefit from detailed best practices, using experiences learned during the COVID-19 crisis.

Utilization gaps. There's an unspoken digital divide between the possibility and reality of "how our communications networks could be used to improve outcomes in education, health care and other public services, and what we are actually doing," Levin contends. He expects that the COVID crisis "is likely to unleash ... innovation, particularly with telehealth, telecommuting, and online education," adding that, "Evaluating what worked and what didn’t can help close the divide between our current reality and the potential benefits broadband can bring."

Information gaps. "We need to learn how, in any future crisis, our society can reduce the pollution of misinformation," Levin concludes, then adds a political zing: "We need to understand why the federal government, at least initially, did such a poor job of providing needed, trusted, and relevant information about the pandemic itself." He suggests that there should have been a website available in February or March where a person "could put in one’s zip code and immediately learn the status of the infections in the surrounding area, as well as where to be tested and treated."

Although Levin declined to reveal his own plans for being part of any follow-up initiative to analyze the COVID telecom after-math, he emphasized that, "We’ll need similar evaluations of hospital systems and other strategic national assets."

"It’s already clear that we must do even more to bring affordable, abundant bandwidth to all," he concluded, refraining his decade-old plea. "We must assess anew, based on new facts and new realities, how we safeguard life-saving communications technologies, improve key applications in government, health care, education, and other industries."

Blair Levin, the chief architect of the FCC's 2010 National Broadband Plan, said that the coronavirus will wind up shining a light on broadband access, adoption and use, both "where we have made progress and where we haven’t" since the plan was adopted.  

Levin was writing on the issue for the Benton web site in lieu of an event on the 10th anniversary of the broadband plan that had to be canceled. 

Levin said the focus of that spotlight will be on where the country has fallen short, including those limited to lower-speed satellite and DSL broadband, schools systems that close but with a number of students in broadband non-adopting homes; homes whose limited bandwidth "crashes"; and some "Monday morning quarter-backing." 

But Levin said that eventually, people will understand that without the broadband improvements that have been achieved, "the situation would have been a lot worse." 

Citing author Nassim Taleb's Antifragile, “The excess energy released from overreaction to setbacks is what innovates.” 

He said he is hopeful that the current crisis will catalyze such a reaction and that those innovations can be scaled up. 

Levin gave kudos to Comcast for stepping up to provide broadband to low income homes, which is allowing more kids to study from home during the pandemic.  

"I went into the plan thinking that the output would be a series of policy recommendations," he wrote. "That proved largely to be true but two of the most significant outcomes were private initiatives that emerged from discussions between National Broadband Plan team members and private enterprises." 

One was Google Fiber, the other, Comcast Internet Essentials, which he said "emerged from a Comcast executive hearing. Our adoption expert, John Horrigan, [spoke] about the problems of adoption and deciding his company had to do more." 

He said both efforts, "one of which contributed to a 25-fold increase in bandwidth speeds and the other of which added 8 million Americans to those with broadband in their homes," were "underappreciated success stories for why more Americans in the face of the coronavirus can work and learn from home." 

Levin gave credit to both companies, but also said it demonstrated "the power of a planning process to generate new ideas—and not necessarily government action—that produce better outcomes."