Court Orders Latina Into Auction; FCC Blocking Videohouse
The FCC will allow Class A Latina Broadcasters to participate in the incentive auction and the auction will begin on schedule on March 29, commanded the U.S. Court of Appeals for the D.C. Circuit in an order released Thursday. Though the FCC previously claimed in pleadings in the Latina case that including WDYB Daytona Beach would cause a delay of the auction, it said Friday the auction would take place on time, in a statement. That didn't stop some from worrying the auction may yet be delayed.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The commission tried to head off a similar ruling in the other Class A challenge against the auction, with a letter to the D.C. Circuit Friday saying including Videohouse would “substantially delay the auction by months.” The court shouldn’t trust the FCC on the prospects for a delay since it said the same thing about Latina two weeks ago, Videohouse said in a response filing. “The Court should not credit the FCC’s revised litigation position.” Attorneys had told us Latina had the best argument against the FCC of the challengers to the incentive auction (see 1603090078).
The court’s willingness to rule against the FCC and stay the order excluding WDYB bodes well for Videohouse, since the court rarely issues such stays, said Fletcher Heald attorney Harry Cole, who isn't part of the case. The stay hinged on the court's accepting Latina’s claim that being left out of the auction would do irreparable harm, and rejecting the FCC argument that, since Latina can’t know it will be displaced, harm isn't certain, Cole said. That's the same claim of irreparable harm Videohouse is making, he said. The FCC’s letter to the court on Videohouse is evidence it's concerned about the same thing, said Cole and a broadcast lawyer connected with the challenges to the auction.
The Latina decision can also be seen as indicating a full stay of the auction is unlikely in the Videohouse case, since in Latina the same court took pains not to affect the auction as a whole. According to the order, the court actually dug into the incentive auction data the agency makes available to determine if including Latina would lead to a delay. ”Based on a review of the FCC’s broadcast incentive auction website, it appears the agency’s auction data files and other projections are based on the assumption that petitioner’s station would be eligible to participate,” the order said. “The court got its hands dirty,” Cole said. HCH attorney David Wachen had told us that since the FCC had included Latina in all of its prior auction calculations, it shouldn’t be difficult to re-include it.
The stay is the second time in two weeks the D.C. Circuit has blocked an FCC order, Commissioner Ajit Pai said in a released statement, referring to the inmate calling stay (see 1603070055). “I dissented from each of these unlawful decisions, and I am pleased that the court has stepped in to provide badly needed judicial oversight,” Pai said. He also pointed to a recent letter from a dozen senators criticizing the FCC policy toward joint sales agreements (see 1603140065). “That the courts and Congress have felt compelled to intervene in these ways suggests the agency lacks respect for the rule of law,” Pai said. “The Commission needs to follow the law and return to the tradition of bipartisan, collaborative decision-making.”
Though being included in the auction was Latina’s stated reason for pursuing legal action, Cole said it’s likely the broadcaster will continue forward with its case, at least until the auction is complete and its status is decided. One criterion for granting a stay is that the court believed the party requesting it has a chance to win on the merits, Cole pointed out. That aspect of the Latina ruling that could be seen as boding well for Videohouse, Latina itself, and even LPTV petitioners Free Access & Broadcast Telemedia, Mako and Word of God, because those cases will likely all continue on the merits (see [Ref:1603170054), one attorney following the case told us.
If the auction is stayed or delayed for months, as the FCC suggested it would have to be, the low-power TV and Class A's that aren’t granted stays could still be included if they win their cases on the merits, attorneys told us. FAB, Mako, Videohouse and the other Class A's have oral arguments scheduled for May, possibly in time for a delayed auction, a lawyer noted. Latina’s case was expedited by the same order granting the stay, with oral argument scheduled for a date in September to be determined.
The Competitive Carriers Association and CTIA issued statements supporting the court’s decision. "We're pleased the DC Circuit ruled in a way that will prevent delay of the start of this much needed auction and that the FCC indicated it remains committed to a March 29 start date," emailed Scott Bergmann, CTIA vice president-regulatory affairs.
"I am very pleased with the Court's decision to not further delay the upcoming incentive auction,” emailed CCA CEO Steve Berry. “Auction participants have spent countless hours organizing business plans and making investments in preparation for the March 29 start date and these organizations would be negatively impacted by a delay -- especially smaller carriers with limited financial and human resources,” Berry said. “All I am hoping for is a March 29 start and just enrichment of hundreds and hundreds of deserving broadcasters!" emailed incentive auction advocate Preston Padden, former executive director of the Expanding Opportunities for Broadcasters Coalition, which was dissolved last fall.