LPTV Incentive Auction Stay Request Denied Hours After Briefing Completed
The U.S. Court of Appeals for the D.C. Circuit denied a request from low-power TV broadcaster Free Access & Broadcast Telemedia that the incentive auction be stayed. LPTV broadcasters FAB, Mako Communications and Word of God “have not satisfied the stringent requirements for a stay pending court review,” said the order from Judges Karen Henderson, Brett Kavanaugh and Patricia Millett. Two other requests for a possible stay of the auction await a decision from the court, both from Class A broadcasters (see 1603160065). The decision against FAB and Mako can be seen as an indication the court may not look favorably on the other stay requests, but not a strong one since the arguments and circumstances of the three cases are very different, several broadcast attorneys told us.
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The court's timing can also be seen as an indication of its disposition toward the stay request, said HCH attorney David Wachen, who represents Latina Broadcasters, another LPTV outlet. The order denying the stay was issued Wednesday just hours after the final brief in the case was filed by the LPTV broadcasters. That quick turnaround suggests the D.C. Circuit “didn't think much” of the LPTV stay request, Wachen said.
The D.C. Circuit may have been prepared to deny the stay for a while, and was simply waiting for the final brief before issuing the decision, suggested Fletcher Heald broadcast attorney Peter Tannenwald. The stay requests by Latina Broadcasters and separately by Fifth Street, Videohouse and WMTM have been fully briefed for roughly a week without orders being issued, suggesting the court is taking more time considering them, Wachen said. But he also said the D.C. Circuit may have been waiting for all three requests to be completely briefed before deciding any of them, which would suggest decisions in the other two could be issued soon. It's impossible to do more than speculate about the court's intentions, Wachen said. Attorneys for FAB, Mako and Word of God didn't comment.
The LPTV broadcasters can appeal the denial to a full panel of the D.C. Circuit, or simply continue the case on the merits, attorneys told us. But the case isn't set for oral argument until May, months after the beginning of the incentive auction. Unlike the Class A's pursuing a stay, the low-power case is based on arguments that the FCC is wrong to exclude LPTV stations from protection and participation in the incentive auction. A court finding in their favor would likely require a radical redesign of the auction, Tannenwald said. The Class A cases are based on including one or four Class A stations, possibilities the court may find more practical, he said. Since the other stay requests are still pending, the LPTV broadcasters still have a chance, Wachen said. A stay in any of the cases will benefit all of the parties, he said.