When applying the UHF discount, Nexstar was at 39 percent prior to the merger and is now at 54.5 percent. In the merger-approval order issued by its Media Bureau, the Carr FCC found that it has authority to waive the rule and said that considering waivers on a case-by-case basis “gives us the opportunity to analyze whether a particular transaction would benefit the public, such as through increased investment in local news coverage and other programming of local interest.”

The FCC also waived its Local Television Ownership Rule to let Nexstar own more than two full-power TV stations in 23 market areas, subject to six station divestitures Nexstar committed to make in Denver, Colorado; Indianapolis, Indiana; New Haven, Connecticut; Portsmouth, Virginia; Slidell, Louisiana; and Rogers, Arkansas.

The merger was challenged in a lawsuit filed this week by attorneys general from California, Colorado, Connecticut, Illinois, New York, North Carolina, Oregon, and Virginia. The merger “would create the largest broadcast station group in the United States, putting more broadcast programming in the hands of fewer people, removing control from the communities they report to, cutting local jobs, and significantly impacting the delivery of news and other media content to Americans nationwide,” California Attorney General Rob Bonta’s office said.

Nexstar and Tegna together own 221 Big Four stations, or about half of the stations affiliated with FOX, NBC, ABC, or CBS, the states said. The state AGs today asked a federal judge in California to issue a temporary restraining order to prohibit Nexstar and Tegna from integrating or commingling the companies’ assets and to require Nexstar “to hold separate the acquired Tegna assets pending further proceedings.”

Only Congress can lift 39 percent cap, opponents say

In 2004, Congress amended the Telecommunications Act of 1996 to require the FCC to raise the national audience reach limit from 35 to 39 percent. The 2004 law change also said the FCC cannot use its forbearance authority under Section 10 of the Communications Act to forbear from applying telecom regulations to entities that exceed the 39 percent limit.