FAB Court Case Brushes Up Against Incentive Auction
Free Access Broadcast & Telemedia wants the incentive auction's March 29 start pushed back to accommodate its court challenge of the way low-power TV licensees are treated in the auction rules, it said in a news release Friday. “Should the FCC decline to move back the kick-off date, FAB counsel may likely be forced to seek Court relief to delay the auction until all issues are resolved.”
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The briefing schedule for FAB's case in the U.S. Court of Appeals for the D.C. Circuit (see 1512010062) was set Thursday, with the final briefs due March 11, weeks before the auction. Final briefs had been due in February, but the date was pushed back in response to an unopposed FCC motion asking for an extension. The FCC asked for the date change because the briefs would have been due within a week of final briefs in the case of LPTV broadcaster Mako's challenge of the incentive auction rules. The cases will have oral argument on the same day, said court documents.
The FCC isn't at all likely to push back the incentive auction start date on its own, broadcast attorneys and industry officials told us. Though the D.C. Circuit could order the commission to do so, that's also seen as unlikely. FAB's strongest argument in favor of pushing back the auction would be that it will cause LPTV stations irreparable harm if allowed to proceed, but attorneys told us the courts have a high standard for such requests. The FCC didn't comment Friday.
The way the FCC has released the various auction rules that pose a challenge for LPTV has made them harder to combat in court, several broadcast lawyers told us. Items like the vacant band proposal and the repacking plan were released separately, months apart, making it harder for LPTV licensees to get a cohesive picture of what they were up against, the legal practitioners said. It also denied the LPTV industry a singular rule or policy to oppose or ask a court to knock down, they said.
The auction is so close and has so much momentum that challenging it or trying to delay it is no longer the best strategy for LPTV stations, said LPTV Spectrum Rights Coalition Executive Director Mike Gravino. The better tactic now is to go through with the auction and repacking process and come out the other side, Gravino said. Though an upcoming rulemaking intended to mitigate the effects of the auction on LPTV stations has been criticized by some as not doing enough, Gravino said opening up channel-sharing opportunities and extending the timeline for stations to transition to digital will allow many LPTV and translators to continue operating for years after the auction. Though the auction will be tough for LPTV and exact heavy costs for stations, going along with the auction process is better at this point, he said.