LPTV Auction Challenges Could Still Affect Incentive Auction
Although the U.S. Court of Appeals for the D.C. Circuit rejected requested injunctions against the incentive auction by Class A and low-power TV broadcasters, those cases are proceeding on the merits and could still have an effect on the auction proceedings, according to court filings and interviews. Briefing in the cases filed by Free Access & Broadcast Telemedia (FAB), Mako Communications and Videohouse will be complete in May, with court decisions likely being issued during or just after the auction, attorneys have told us. Legal challenges against the FCC's treatment of LPTV would greatly complicate the auction if resolved in the broadcasters' favor, since the current repacking plan doesn't set aside room to protect LPTV, broadcast attorneys told us.
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Upping the ante, FAB took its efforts outside the courtroom, lobbying Congress and the GAO for information on the extent of the FCC's pre-auction analysis of the impact on LPTV. "At stake is the potential extinguishment of free TV service choices to all Congressional districts nationwide," FAB said in a news release Monday.
FAB sent letters Monday to the GAO and to the U.S. Comptroller General asking that they "assert GAO's fullest authority" to get the FCC to release information about impact studies of how the incentive auction would affect LPTV stations, the subject of an upcoming GAO report. The FCC has repeatedly denied that such studies exist. "The FCC has been silent, including deflecting direct Congressional information requests," FAB said in the letter. The FCC didn't comment.
None of the ongoing LPTV and Class A court challenges against the incentive auction is likely to be resolved before bidding in the reverse auction begins, lawyers said. Yet they could still have an effect on an in-progress or completed incentive auction, attorneys told us. If the D.C. Circuit agrees with FAB or Mako arguments that the FCC's treatment of LPTV in the auction exceeds its authority, granting LPTV stations relief would be a difficult undertaking, possibly requiring a reshuffling of broadcast stations to make room for LPTV, Fletcher Heald broadcast attorney Peter Tannenwald said. The FCC could be required by the court to buy more broadcast spectrum to have enough to reserve space for LPTV, likely reducing auction profit, Tannenwald said.
That would be such a heavy lift that it's extremely unlikely, other broadcast attorneys have told us. The D.C. Circuit's rejection of the injunctions against the auction requested by the broadcasters is an indication that the court is unlikely to take such an extreme step, broadcast attorneys told us.
The D.C. Circuit preliminarily ruled in favor of Latina Broadcasters (see 1603180056), requiring that it provisionally be included in the auction. That provisional status means that the commission must account for possibly preserving Latina's spectrum in its auction calculations but doesn't guarantee that Latina will receive money for its spectrum or be protected in the end if the court eventually sides with the FCC, Tannenwald said. Public interest groups have asked that the FCC drop the case against Latina and fully include it in the auction. FCC Chairman Tom Wheeler said last week that Latina's relationship with the auction was now up to the broadcaster.