US Agency for Global Media (USAGM) CEO Michael Pack's rip-and-replace approach to the agency's Open Technology Fund last month has run into a big legal problem-a court has concluded he likely does not have the authority to do so.
OTF is an independent nonprofit funded by USAGM that promotes internet freedom and opposes censorship and surveillance. It began as a program of Radio Free Asia but morphed into an independent operation with its own board of directors, though still funded by USAGM.
After Pack removed the board members and directors, they sought an injunction against the collective removal.
In a ruling handed down Tuesday (July 21), the U.S. Court of Appeals for the D.C. Circuit granted the injunction and reinstated the former members, for now.
"The officers and directors of OTF that were in those roles prior to the government’s actions on June 17, 2020, shall continue in their normal course throughout the tendency of this appeal," the court said.
While there is a high bar for granting such injunctions, the court found the petitioners had met it, even pointing out they had satisfied the "stringent" requirements, which include likelihood of winning the underlying case and irreparable harm absent a stay.
The appeals court said a district court was likely correct in holding that Pack lacks the authority to replace OTF staffers.
On the issue of irreparable harm, the court said: "Absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist."
As to the harm to the government from an injunction: "The government has asserted no irreparable harm or injury to the public interest beyond the claimed right to exercise the very powers that are at the heart of this litigation and for which appellants have shown a likelihood of success on appeal. And an injunction pending appeal will be relatively short-lived because of the highly expedited schedule for this appeal."
The Senate June 4 approved the nomination of conservative documentary filmmaker Michael Pack as head of the USAGM with the title CEO of the Broadcasting Board of Governors. VOA director Amanda Bennett and her deputy, Sandra Sugawara, resigned June 15, saying that gave Pack the freedom to replace them with his own picks, though such resignations are more associated with political appointees at the change of administrations.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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