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.
Monty Tayloe
Monty Tayloe, Associate Editor, covers broadcasting and the Federal Communications Commission for Communications Daily. He joined Warren Communications News in 2013, after spending 10 years covering crime and local politics for Virginia regional newspapers and a turn in television as a communications assistant for the PBS NewsHour. He’s a Virginia native who graduated Fork Union Military Academy and the College of William and Mary. You can follow Tayloe on Twitter: @MontyTayloe .
A draft NPRM slated for the FCC's March 31 meeting would seek comment on expanding the amount of described video available to consumers who are visually impaired, industry officials told us. The proposal is based on portions of the 21st Century Communications and Video Accessibility Act (CVAA) that give the FCC authority to make such an expansion after June 2016, an industry official said.
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.
The FCC is playing the role of an “eager purchaser” rather than a disinterested neutral agency by intervening in the dispute between Gray Television and Media General over a joint sales agreement connected with Gray’s purchase of Schurz stations (see 1603100058), said Media General to Franklin County, Georgia, Superior Court Monday. Media General was filing in opposition to a Gray emergency motion for reconsideration filed Friday that seeks to dissolve a court ordered injunction keeping the JSA in place. The FCC’s statement of interest in the case shows the injunction is “in contravention of federal law,” Gray said. The FCC’s position is “the result of Gray’s aggressive and misleading lobbying effort,” Media General said.
The U.S. Court of Appeals for the D.C Circuit ordered the FCC to respond by Tuesday to broadcaster Mako Communications' emergency request for a stay of the TV incentive auction, in a Friday order. Mako’s request for stay was filed March 10. Court decisions on similar stays requested by Latina Broadcasters and Class A station Videohouse are expected this week, several broadcast attorneys told us. The D.C. Circuit's order for a fast FCC response could be seen as a sign it's sympathetic to the low-power TV position, said Fletcher Heald broadcast attorney Harry Cole in an email.
The FCC’s Incentive Auction Task Force will send letters this week containing the passwords and information that will allow broadcasters participating in the auction to make their “initial commitment” to participate by the March 29 deadline, IATF officials said at a workshop on the reverse auction Friday. The initial commitment is the final deadline for auction participation, and the point at which broadcasters will inform the FCC whether they’d like to go off air, move to part of the VHF band, or stay on air and be repacked, said IATF Legal Adviser Erin Griffith Friday. The presentation also included a “sneak peek” at the software broadcasters will use to track and respond to bids in the incentive auction.
A court challenge by Media General against Gray Television's purchase of Schurz TV stations led Media General to violate the Communications Act, said DOJ in a statement of interest filed with U.S. District Court in Savannah, Georgia, Wednesday. A Richmond County, Georgia, Superior Court judge granted a Media General request for an injunction preventing Gray and Schurz from breaking a joint sales agreement with Media General over WAGT Augusta and from selling WAGT's spectrum in the incentive auction. The dissolution of that JSA was one of the conditions of the Media Bureau's February approval of Gray/Schurz's TV stations, and Media General's request is a violation of the Communications Act, bureau Chief Bill Lake said in a letter to DOJ. “By seeking an injunction to require continued implementation of the JSA, Media General has sought a remedy in conflict with the Commission’s order,” Lake said. “The Commission has long taken the view” it's a violation of The Communications Act for a company “to seek injunctive relief that interferes with a licensee’s ultimate control of a station,” Lake said. Gray argued in court filings the case is rightfully under the jurisdiction of the U.S. District Court in Georgia, and that the case was removed from the lower court before the injunction was ordered. However, the case was remanded to the lower court late Thursday, according to a judgment. Though the court denied a Media General request for an emergency injunction as moot, it's not clear if the injunction from the lower court still applies. According to the judgment, the U.S. District Court lacks subject matter jurisdiction over the case. But the court ordered the injunction be treated as in effect until those questions are decided. By entering into the transaction with Gray that included changes to its JSA agreement, Schurz violated the terms of that agreement, Media General argued. Under a recent congressional change to JSA attribution rules, existing JSAs are grandfathered for the next two decades, while the bureau ruled existing JSAs that are transferred will be treated as new arrangements and thus subject to the new rules. In an email to bureau staff filed as an ex parte, broadcast attorney Jack Goodman -- who represents Schurz -- speculated Media General may be planning to use this case “as leverage” as part of an attempt to argue that its JSAs can't be terminated as part of its proposed sale to Nexstar. Goodman, Media General and Nexstar had no further comment Thursday.
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.
Access to consumer data may be the real prize in the battle between pay-TV carriers and supporters of FCC-proposed changes to the set-top box market (see 1602180065), cable attorneys, analysts and data experts said in interviews.
The FCC is considering a regional approach to the post-incentive auction repacking effort, said Incentive Auction Task Force Vice Chairman Howard Symons during a webinar on repacking hosted by Broadcasting & Cable Tuesday. Though the commission hasn’t reached a final decision on the repacking, Symons said repacking by region “probably makes the most sense,” compared with repacking the whole nation at once or by market.