LPTVs Ask Appeals Court To Delay Auction

After asking the FCC to delay the March 29 start of its upcoming spectrum incentive auction and being turned down by the commission, low-power TV interests have turned to the U.S. Court of Appeals for the D.C. Circuit to put on the brakes.

In a petition filed with the court Thursday, Videohouse, Fifth Street Enterprises and WMTM claim that the FCC’s auction rules deny LPTV operators the ability to participate in the auction as well as “protection in the spectrum repacking process.”

They want court to stay the commission’s earlier decision preventing them from participating in the auction or to postpone the auction’s start until the court challenges are resolved. And Videohouse has asked the court to rule on its request by March 11.

The commission denied an earlier auction postponement request from Latina Broadcasters, saying a delay “would disserve both consumers and eligible entities who have developed business plans based on the current schedule, including securing financing and deferring other business plans.”

The FCC defended its denial of Latina’s request for a stay, filing a response with the court on Friday. “Latina has not shown that the court is likely to reverse [the FCC’s decision that Latina’s WDYB is ineligible to participate in the auction], nor is Latina likely to suffer irreparable harm absent a stay. And any delay — which would result either from ordering a stay or from ordering last-minute changes (especially ones that may irreversibly affect the final results) — would harm other parties and the public interest.”

The LPTV Spectrum Rights Coalition filed a friend-of-the-court brief in support of Videohouse. “At the end of 2011, just months before Congress passed the Spectrum Act and set in motion the plans for the Incentive Auction, there were nearly 500 licensed Class A stations. At the end of 2015, four years later, there were fewer than 400. In other words, more than 17% of Class A stations were downgraded or had their licenses cancelled, each representing potentially millions in Incentive Auction payout savings and substantial hours of spectrum repacking work.

“It is difficult to escape the conclusion that this reduction in the number of Class A stations demonstrates the success of a systematic effort by the FCC to preemptively clear TV spectrum in advance of the incentive auction in order to save money and ease post-auction repacking. Congress made clear in the Spectrum Act that the FCC had a responsibility both to protect broadcasters and to clear spectrum for new uses. In evaluating the FCC’s treatment of the petitioners in this case, SRC urges the court to take into account the FCC’s overall behavior toward, and treatment of, Class A television stations generally during the period since enactment of the incentive auction legislation.”

Filing opposition to the Videohouse stay request are station owners Ellis Communication, PTP Broadcasting Management and WRNN, all of whom plan to offer their spectrum for sale in the auction.

In a filing with the court, they say that each of their business plans is premised on the auction going forward beginning March 29 and that postponing it “would keep the business operations of eligible broadcast television auction applicants in an extended state of limbo, not knowing whether or how far to make long-term business plans while the possibility that their spectrum may be purchased in the auction remains uncertain.”

They continued: “The auction process is complex and, in the almost seven months since the date of the auction was announced, many applicants, both on the broadcast and the wireless side of the auction will have retained economists, auction experts, IT experts, investment strategy advisors, and similar consultants and advisors to assist them in participating in the process, all pointing to an auction commencing on March 29. A stay would undermine such applicants’ ability to keep their auction teams together or to do so without incurring considerable added expense.”