FCC Reversal on Latina Seen as Extreme
Although it isn't unusual for administrative agencies to reverse themselves, FCC flip-flopping on Latina Broadcasters' inclusion in the incentive auction may be extreme, attorneys and an administrative law expert told us. Though courts tend not to be sympathetic to arguments an agency didn't provide enough notice of a change in policy, the U.S. Court of Appeals for the D.C. Circuit may feel the radical shift on Latina “doesn't pass the smell test,” said George Washington University administrative law professor Richard Pierce in an interview. The FCC repeatedly telling Latina it's included in the auction and then excluding it with so little time before the March 29 start (see 1603070057) is likely to look bad for the commission and increase D.C. Circuit scrutiny of the FCC's actions, Pierce said. A rapid shift in policy often can indicate some “questionable” administrative procedure is being used, he said.
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Such reversals aren't that unusual for the FCC, Pierce said, because it's more politicized than many other federal agencies. Because the media is a powerful force with high visibility, the FCC can be more vulnerable to outside influences, he said. With Latina, the FCC was arguing as recently as December that the station was in a different situation from other excluded Class A's and should be included in the auction. Going back on that decision just a month later “really screams” that the agency is being arbitrary, said Fletcher Heald broadcast attorney Harry Cole in an interview. The FCC's actions are “certainly unusual,” he said.
If the FCC disqualified Latina from the auction to bolster its arguments against other Class A's it wanted to exclude, the commission is “using” someone who will be badly hurt by the FCC's decision, said HCH Legal attorney David Wachen, who represents Latina. CEO Nora Soto, a rare minority female licensee, started her business with her own money and will be severely injured financially if her station isn't included in the auction, Wachen said. The commission issued numerous notices that included Soto's WDYB Daytona Beach, Florida, in the auction, and Latina met with FCC officials last summer to confirm the station was included, receiving assurances it was, Watkins said. The FCC's most recent argument in Latina's case is that its inclusion in the auction was a mistake and when the agency further scrutinized WDYB's situation, it realized the station hadn't met the requirements to be in the auction. “It wasn't a mistake,” Wachen said. “They moved the goal posts.”
The D.C. Circuit is expected to rule Friday on Latina's request to be included in the auction or for the auction to be stayed. “An agency is free to reinterpret a statue differently than it did before, as long as they have a reasonable explanation of why they changed their mind,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. The FCC has the authority to take away a broadcast license without compensating a licensee, he said.
Stays of the auction have also been requested by Class A's Fifth Street, Videohouse and WMTM, and separately by low-power TV broadcasters Free Access and Broadcast Telemedia and Mako. Oral argument for Free Access and Mako is set for May 5, said a D.C. Circuit order issued Tuesday. The Class A's have oral argument on May 9, while no argument date has been set for Latina.