Public interest requires prosecutorial judgment

OPINION:

One of the most important lessons I learned as a prosecutor is that having the power to bring a case matters just as much as exercising the discretion to know when not to use it.

Attorneys general possess this broad authority for good reason: to protect consumers and act decisively to enforce the law when the public interest requires the state to step in.

However, the public entrusts that authority to us with an equally important expectation: that we will exercise sound judgment in selecting the cases we pursue and make the best use of taxpayer resources entrusted to us.

The most consequential decisions are often not clear-cut, particularly when legitimate concerns about consumers and competition intersect with the commercial interests of parties seeking government intervention.

That is the circumstance that attorneys general should carefully consider in ongoing state litigation over Nexstar’s acquisition of fellow station owner TEGNA.

A recent New York Post editorial characterized the case as taxpayer-funded prosecutorial overreach led by California Attorney General Rob Bonta and as a political move that risks weakening local news broadcasters by strengthening distributors’ negotiating position in retransmission-fee negotiations.

The editorial’s language was blunt, but it raises an important question that attorneys general backing this case need to ask: Are they advancing the public interest, or have their offices been inadvertently enlisted in a private commercial fight under false pretenses?

The question is critical here because of who could benefit from this litigation. Video programming distributors such as satellite television provider DIRECTV — which started this lawsuit — buy programming from broadcasters. It naturally wants to pay as little as possible for that programming, just as broadcasters want to be fairly compensated for producing it.

Nothing is improper about either side defending its economic interests, but a commercial dispute over what DIRECTV pays for programming should not be treated as a consumer protection case. There is no evidence that potential savings resulting from this case would ever reach a customer.

The wider record deserves scrutiny as well. DIRECTV and other cable industry groups have urged the Federal Communications Commission to reject or restrict the transaction. Their participation was lawful, and their arguments were entitled to consideration.

Yet they are market participants, not disinterested guardians of the public. State officials should therefore be especially cautious when the requested government action would improve the bargaining position of private companies that compete with, purchase content from or otherwise do business with the target of an enforcement action.

Prosecutorial discretion exists precisely because legal power is broad and public resources are finite. Attorneys general have a duty to protect consumers and may enforce state and federal antitrust laws. Federal review does not erase that authority. However, possessing concurrent authority does not make every additional lawsuit necessary, especially when limited enforcement resources could instead be directed toward combating fraud, scams and genuine consumer harm.

The federal agencies that Congress assigned to examine broadcast transactions reviewed this deal carefully. In a public proceeding, the FCC assessed competition, localism, diversity, ownership rules, retransmission concerns and the rapidly changing video marketplace. It concluded that the transaction, with Nexstar’s binding commitments, would create no material public interest harm and would help local stations compete more effectively.

The Justice Department concluded a separate antitrust review and chose not to challenge the deal. Those decisions should carry significant weight given the specialized expertise each agency brings to the table.

The agreement that Ohio Attorney General Dave Yost reached with Nexstar provides a better path forward. His memorandum of understanding protected the editorial, personnel and production independence of stations in Columbus and Cleveland, ensured that the stations would maintain separate news teams and preserved existing levels of local programming — all without going to court.

Such an agreement preserves a critical public service while providing a road map for other attorneys general to identify specific concerns, secure meaningful protections and avoid the expense and uncertainty associated with attempting to block an entire transaction.

Our legal system depends on vigorous enforcement, and state attorneys general remain essential where genuine public harms might otherwise go unanswered. I was proud to serve in that role, and I would never argue that an attorney general should cede that responsibility merely because Washington has acted.

Yet prosecutorial independence is not measured by how often an office sues. It is measured by an office’s ability to assess whether the public has been harmed and whether further government intervention is warranted.

• Charles Condon is a former South Carolina 9th Circuit solicitor and attorney general of South Carolina. He was the first chairman of the Republican Attorneys General Association. In 2008, he was the chairman of John McCain’s presidential campaign in South Carolina. He is currently a lawyer in private practice.