Another Auction Stay Request Sought

Free Access & Broadcast Telemedia (FAB) and other parties today petitioned the U.S. Court of Appeals for the DC Circuit to stay the FCC’s incentive spectrum auction pending judicial review. The action comes after being denied a similar request from the FCC.

FAB says the commission’s auction rules “contravene the express terms of the agency’s underlying statutory authority (the Spectrum Act of 2012), reverse decades of settled FCC policy on the “secondary” status of licensed low-power television, and  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.”

FAB claims the commission disregarded a legal prohibition from reorganizing broadcast spectrum in the auction in a way that would “alter the spectrum usage rights of low-power television stations” and claims 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.”

It goes on to claim that the “FCC’s unprecedented decisions arise in large part from the agency’s desire to clear-cut the television spectrum band, maximizing the spectrum to be sold to new licensees.”

FAB suggests that “ the one and only step required for the commission to remedy the imminent harm to LPTV is simple, indeed trivial. All that is necessary is to load the FCC’s existing television database, which includes all LPTV stations and engineering details, into its auction software…. This requires no laborious effort whatever and demonstrates that far from delaying the auction, including LPTV in the ‘repack’ would have no impact on the agency’s ability to complete the auction within the next six-and-a-half years.”

Without a stay of the auction until the matters are resolved, FAB concludes, “the FCC enjoys the opportunity to follow the unwarranted lead of other federal agencies by imposing new, questionable policies on regulated industries, permanently affecting private rights, before judicial review.”