DC Circuit Consolidates LPTV Challenges to Incentive Auction
The U.S. Court of Appeals for the D.C. Circuit consolidated challenges against the incentive auction from low-power TV industry companies into a single case, said an order released Monday. The order, a response to an unopposed motion from the FCC, combines challenges from Beach TV properties, Free Access & Broadcast (FAB) Telemedia, Mako Communications and Word of God Ministries into a single case with a mostly combined briefing schedule. LPTV industry officials not connected to the case told us they see the matter as one of the only chances to change the incentive auction’s effects on LPTV, though other broadcast officials said the auction may be too far along. LPTV stations aren’t part of the auction because the auction legislation doesn’t allow them to be, and LPTV should seek a solution from Congress, said former Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden. The FCC didn't comment Tuesday.
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LPTV companies challenging the incentive auction aren’t seeking a delay of the proceeding, said broadcast attorney Aaron Shainis of Shainis and Peltzman, who represents Mako. But he conceded that accommodating Mako or other LPTV groups could “put a hole” in the incentive auction’s schedule. A briefing schedule said petitioner briefs are due Dec. 30, and final briefs Feb. 26. Since the case is on an expedited briefing schedule, oral argument would likely soon follow, Shainis said. The incentive auction’s planned kickoff is March 29. There’s a tremendous amount of interest in the case within the LPTV industry, Shainis said.
FAB and Mako are challenging the incentive auction on grounds it violates the Administrative Procedure Act in its treatment of LPTV. The auction rules revoke Mako’s low-power broadcast licenses “en masse” without providing “administrative due process,” it said. The rules also subordinate LPTV to “uses beyond full power television,” which is “the only primary use reserved by Congress,” Mako said. FAB said the auction illegally alters “the spectrum usage rights of low-power television stations” and attacked the FCC for violating the Regulatory Flexibility Act by “failing to conduct a reasonable analysis of the potential adverse economic impacts on low-power television stations as small entities” and not showing it has taken steps to “minimize the significant economic impact” of the auction rules on LPTV. FAB also focused on an LPTV impact study, in recent FCC filings (see 1511170066).
Combining the cases is unlikely to hurt their arguments but could be “a distraction” for the court, Shainis said. “We would prefer just handling it on our own.” Before FAB filed its court case, Mako opposed a motion by FAB to file as an intervenor in the Mako case. Though the D.C. Circuit order contains a new briefing schedule for the consolidated cases, Shainis said Mako must still abide by the Friday due date for petitioner’s briefs. The court hasn’t said how oral argument will be divided among the parties.