FCC Faces LPTV Challenges to Incentive Auction

Meanwhile, despite a judge's order that it proceed quickly, the commission hasn't ruled on a petition from several Class A broadcasters to allow their stations into the incentive auction. Letting the stations into the auction "is the best way to ensure a timely and successful auction," said The Video House, Fifth Street Enterprises and WMTM in meetings with aides to Commissioners Ajit Pai, Jessica Rosenworcel and Mignon Clyburn last week, according to an ex parte filing in docket 12-268. "Any other remedy would be arbitrary and improper and would risk delaying the auction process."

Mako's arguments that the FCC should protect LPTV stations in the repacking lack standing, don't fall under the jurisdiction of the D.C. Circuit, and don't take into account the steps the FCC has taken to help LPTV stations survive the auction process, said the FCC's respondent's brief. Since Mako hasn't presented any new evidence in its challenge of the FCC's auction orders, the matter doesn't fall under the court's jurisdiction, the FCC filing said. Beach TV and Mako lack standing to challenge the auction orders because they haven't yet been displaced and don't know that they will be, the FCC said. Since the commission has taken steps to help LPTV stations find new channels, the LPTV stations can't show they're damaged by the auction, the FCC said.

One reason Mako can't know it will be displaced is that the commission never performed a comprehensive analysis of the auction's effect on LPTV, the FCC said. That addresses another LPTV challenge to the auction rules by another LPTV group, Free Access & Broadcast Telemedia. FAB argued in court and to the FCC that the commission either did perform such an analysis and is concealing it or that the agency acted in an arbitrary and capricious manner by not doing so. FAB also said the auction should be delayed until its case can be decided. Mako hasn't argued for the delay of the auction, but the FCC said including LPTV stations in the incentive auction as Mako wants would likely lead to such delays.

Mako has strong arguments, but it's not clear how the D.C. Circuit will react, said Fletcher Heald LPTV attorney Peter Tannenwald in an interview Monday. It will be difficult for the court to order the FCC to delay or substantially restructure something as complicated and important as the incentive auction, he said: The FCC has a strong public interest argument that the auction should go forward. And it's not clear what sort of alternative remedy the FCC could offer, he said.

Though attorneys had told us they expected the FCC to try to quickly resolve the matter of the Class A stations trying to get into the auction, the delay in ruling on the matter suggests that might not be the case, several broadcast attorneys said. There's speculation in the LPTV industry that the commission may even bar another Class A station from participating in the auction in addition to those owned by Videohouse and the other petitioners. Filings from Videohouse and the other petitioners have argued that Latina Broadcasters-owned WYDB-CD Daytona Beach, Florida, is similarly situated to their stations but has been explicitly included in the auction by the commission. "There is no basis for the FCC to reconsider its protection of WDYB," said Latina Broadcasters in an ex parte filing last week.

Tannenwald said he was surprised that the FCC hadn't resolved the Class A matter quickly. The commission may be taking a hard line against these late challenges to the auction out of concern that showing weakness could invite further challenges, said LPTV Spectrum Rights Coalition Director Mike Gravino.