Court Order on Class A's Requires Quick FCC Action
The FCC must act quickly on the matter of three Class A broadcasters currently excluded from participating in the incentive auction, said the U.S. Court of Appeals for the D.C. Circuit in an order released last week. Though the court denied the request for a writ of mandamus by the Fifth Street Enterprises, Videohouse and WMTM, the FCC is expected “to rule on the pending reconsideration petition promptly, so as to allow petitioners to seek judicial review with an opportunity for meaningful relief before the incentive auction commences on March 29, 2016,” said the order. The FCC barred the broadcasters from participating in the incentive auction or being protected during the repacking because they hadn't met a 2012 deadline for Class A's to be auction-eligible (see 1512140049). The FCC didn’t comment on the D.C. Circuit order.
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The matter of the Class A’s petition is listed as being on circulation among the eighth-floor offices, according to the FCC’s website and an FCC filing in the D.C. Circuit proceeding. A decision is expected shortly, broadcast industry attorneys told us.
Though the D.C. Circuit denied the Class A stations' request, the court’s wording in the order specifically urging the commission to quick action is among the best possible outcomes for the broadcasters, said Fletcher Heald broadcast attorney Peter Tannenwald, who is unconnected with the case. Writs of mandamus are rarely granted, and the court simply could have flatly denied this one, he said. By including language urging the commission to act soon, the D.C. Circuit made it harder for the FCC to sit on its hands, he said. The FCC told the court in its opposition filings that it was already circulating the matter, arguing that this made a writ of mandamus was unnecessary. The D.C. Circuit's ruling was “based on the agency’s representations,” the order said.
The FCC is unlikely to allow a matter involving so few stations to threaten its auction timeline through a potential late appeal, broadcast industry attorneys told us. Allowing the broadcasters to fully participate in the auction would make an appeal unlikely, but doing so could cause a delay because the opening bid prices would have to be recalculated to account for the new stations, said Tannenwald. Protecting the broadcasters in the repacking like other Class A's could be a more likely outcome, he said. The petitioning broadcasters indicated in their filings that participating in the auction would be their preferred option, but they also asked for repacking protection.
The Class A's had asked the court to issue a ruling on the mandamus request by Monday, to have time to apply to be in the incentive auction ahead of the Jan. 12 Form 177 filing deadline, according to court documents. With that deadline approaching quickly, an FCC ruling on the matter is expected soon, broadcast industry attorneys told us.