Court To FCC: Let Latina Into The Auction

On Thursday, the U.S. Court of Appeals for the D.C. Circuit issued an order staying an FCC ruling that low-power Azteca America affiliate WDYB-CD Daytona Beach, Fla. (DMA 19), was ineligible to participate in the FCC’s upcoming spectrum incentive auction scheduled to begin on May 29.

In effect, the court’s decision allows WDYB to participate provisionally in the auction, while the court decides the merits of an appeal by the station’s owner, Latina Broadcasters of Daytona Beach, which argues that the FCC’s decision to keep WDYB out was unlawful.

“I am so grateful to the U.S. Court of Appeals for preserving our chance for a meaningful remedy should we prevail in our case,” said Nora Crosby Soto, the owner of Latina, after hearing the news of the U.S. Court of Appeals’ ruling. “We believe our case is very strong and look forward to our day in court, as I fight to preserve my dream of 30 years and the considerable investment I’ve made in WDYB over the last six,”

On Feb. 12, the FCC ruled that WDYB was ineligible to participate in the auction that is scheduled to start on March 29, after being told by the FCC multiple times that WDYB was eligible. With just 31 business days before the auction is set to begin, Latina said it was left without sufficient time to seek meaningful judicial review.

Given the timing of the FCC’s decision so close to the auction’s start, Latina asked the FCC to stay its Feb. 12 order (meaning that WDYB would be eligible to participate in the auction, provisionally, until the court has time to fully consider the merits of her case), but the FCC quickly denied the request.

As a result, Latina filed an Emergency Motion for Stay Pending Appeal on Feb. 26, asking the court to allow WDYB to remain auction eligible while the court decides her case. Latina argued that this compromise would result in no harm to other parties or a delay in the scheduled auction, but at the same time afford Latina the opportunity to have the court determine whether the FCC’s actions with respect to WDYB were proper.

Given its issuance of a stay, it seems the court found Latina’s arguments concerning the irreparable harm it would suffer should the auction proceed without WDYB persuasive.

Without auction eligibility, which guarantees spectrum to WDYB for continued operations post-auction, WDYB could be forced off the air, Latina said, resulting in the elimination of  “alternative television programming geared toward Hispanic viewers.”

Organizations from across the U.S. supported Latina, including the National Hispanic Media Coalition, League of United Latin American Citizens  and the National Latina Business Women’s Association – LA.

“I am humbled and moved by the how Latino leaders have stood with me and Latina’s mission to provide programming and resources to the underserved Latino community in the Orlando/Daytona Beach area,” Soto added.

According to Latina, she is one of four Hispanic women in the United States who are majority owners of a television station.

The FCC had told the court that if it was ordered to let Latina back in the auction, it could delay the auction’s start because the auction databases have been tested without Latina in them. To reload the databases with Latina and retest would take some time.

However, the court said “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.”