Three more low power TV entities asked the U.S. Court of Appeals for the District of Columbia Circuit today to stay the FCC’s incentive auction, pending judicial review of their challenges to the agency’s auction rules. The parties are seeking court action by March 28, one day before the incentive auction starts. Free Access & Broadcast Telemedia LLC (FAB), Word of God Fellowship, Inc., and Mako Communications LLC filed an emergency joint motion this morning (case nos. 15-1264 and 15-1346) even before the FCC’s Media Bureau released an order denying their request for the Commission stay the auction pending judicial review.
The court stay motion is the third filed by LPTV entities recently. Others submitted by Latina Broadcasters of Daytona Beach LLC and The Videohouse also are seeking a stay pending judicial review of their legal challenges. In its stay request, Latina has alternatively sought a stay, pending judicial review, of a recent FCC order that said it is not eligible to participate in the auction or be protected during repacking.
The stay motion filed today sought a stay of the FCC’s auction orders and the auction itself. “Part of the Federal Communications Commission’s (‘FCC’ or ‘Commission’) efforts to fashion the nation’s first-ever incentive spectrum auction, the Orders (i) contravene the express terms of the agency’s underlying statutory authority (the Spectrum Act of 2012), (ii) reverse decades of settled FCC policy on the ‘secondary’ status of licensed low-power television (‘LPTV’), and (iii) will eliminate the channels currently used by countless LPTV stations, forcing many if not most larger-market LPTV licensees to shut down—a fact the agency concedes,” the filing said.
The motion added, “This case fully satisfies the requirements for a stay. Joint Petitioners are likely to succeed on the merits because the Commission disregarded the command of 47 U.S.C. § 1452(b)(5), which prohibits the FCC from reorganizing broadcast spectrum in the auction in a way that would ‘alter the spectrum usage rights of low-power television stations.’ The FCC asserts that LPTV stations are subject to so-called ‘displacement’ simply because they are ‘secondary’ licensees. This result-oriented conclusion distorts and impermissibly redefines the concept of secondary licensees, which are ‘secondary’ only to other licensed services, and then only for purposes of interference; LPTV indisputably enjoys priority, by both FCC rule and an unbroken chain of agency precedent, as against unlicensed wireless services that the FCC’s orders unlawfully attempt to prioritize.”
In its order today in GN docket 12-268 denying the latest stay request, the Media Bureau noted that while the parties “filed their Petitions for Review between five and seven months ago, they have asked for a stay just four weeks before the scheduled commencement of the incentive auction on March 29, 2016.”
By contrast, the Latina and Videohouse stay requests were filed in the wake petitions for review of an FCC order on reconsideration released last month that said the parties could not participate in the auction or be protected during repacking (TRDaily, Feb. 12).
The Media Bureau also pointed out in its order today that oral arguments in the FAB, Word of God Fellowship, and Mako cases are scheduled for May 5. It also said the petitioners have not met the four-part threshold necessary for a stay. – Paul Kirby, paul.kirby@wolterskluwer.com
Courtesy TRDaily