Videohouse Denial Makes Eventual Relief Uncertain
The U.S. Court of Appeals for the D.C. Circuit’s denial of a requested stay of the incentive auction by Class A broadcasters Fifth Street, Videohouse and WMTM makes it uncertain what sort of relief the court ultimately will be able to grant if the broadcasters prevail in their case, broadcast industry officials told us. Oral argument in the case is May 5, making it likely bidding in the incentive auction will be underway by the time the court issues a decision, according to the timelines most recently offered up by the FCC Incentive Auction Task Force. “No one knows” how the court could make the stations whole if it decides in the broadcasters' favor after the auction has begun, Videohouse CEO Ron Bruno said in an interview.
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Though the auction might be occurring when the court hands down a decision, it’s unlikely to be over, and Bruno has hopes it’s possible the D.C. Circuit could then order the Class A stations to be allowed to participate, he told us. A more likely scenario could be that the court orders that the spectrum of the Class A broadcasters be protected in the auction, Fletcher Heald broadcast attorney Peter Tannenwald said, though he also said it’s impossible to know. The Class A stations can still appeal the decision to a full panel of the D.C. Circuit; Bruno told us no decision about a possible appeal has been made. All of the cases are expected to continue on the merits, attorneys following the cases told us.
By approving Latina Broadcasters’ request to be included in the auction (see 1603180056) but denying the stay requests of the other Class A's and low-power TV stations Free Access & Broadcast Telemedia, Mako and Word of God, the D.C. Circuit chose a path that allowed it to be “critical” of FCC behavior without unduly disrupting the auction, Tannenwald said. Since Latina was included in auction planning until the start of 2016, its inclusion doesn’t have as much potential to cause an auction delay as would including the other stations, which have never been included, the FCC has said.
In what Fletcher Heald attorney Harry Cole called “an anti-climax,” the D.C. Circuit order denying the Class A requested stay doesn’t contain any explanation of the court’s thinking, just a statement they didn’t meet the requirements for a stay. That’s not unusual for a court ruling on a stay, Tannenwald told us. “While such terseness is often par for the course in such matters, the history of this particular case suggested that we might have expected more explanation from the court,” Cole said in a blog post. “We wish there was a little more of an explanation,” Bruno said. The end result makes it feel as though the FCC “picked the winners and the losers” of the incentive auction, he said.