Class A Challenges Threaten Auction Delay
The U.S. Court of Appeals for the D.C. Circuit granted a request for expedited proceedings in the appeal by Class A broadcasters Videohouse, Fifth Street Enterprises and WMTM of an FCC reconsideration order excluding them from the incentive auction, the D.C. Circuit said in an order issued Tuesday. Though the court did issue an expedited briefing schedule, the proceeding won't be completed before the incentive auction starts, as the petitioners had requested, the order said. That court challenge of the auction comes alongside a request that the auction be stayed filed Monday by Class A broadcaster Latina Broadcasters, which was also removed from the auction by the same recon order. The FCC might actually welcome such a stay based on pleadings it has filed in the Class A proceeding, said Fletcher Heald broadcast attorneys Harry Cole and Ashley Ludlow in a pair of blog posts this week.
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"We're hard pressed to understand how the FCC hasn't itself laid the groundwork for a stay," wrote the lawyers. "The suggestion that the FCC may wish to delay the auction is silly -- just plain silly," emailed former Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden.
The D.C. Circuit's order expedites the Class A's' appeal, but it doesn't expedite it enough that it will occur before the incentive auction, said the court order. Though the petitioners' first pleadings are due just Thursday, the final briefs in the case aren't due until April, which would mean oral argument wouldn't likely take place until May, said Cole and Ludlow. Not being able to beat the auction makes a stay more likely, said the blog, though Videohouse, Fifth Street and WMTM haven't requested one. It's unlikely that the D.C. Circuit would move so quickly and favorably in response to the Class A's "only to neuter that action by allowing the auction to go forward," the blog post said.
Cole and Ludlow base their belief that the FCC wants a stay of the auction on language in agency pleadings opposing the Class A's' appeal and request for an expedited briefing. In those filings, the commission makes repeated references to a stay, and suggests that seeking a stay is "the normal vehicle" for petitioners seeking to prevent an "irreparable harm," wrote the lawyers. "It seems that the FCC is playing with fire here." The FCC didn't comment.
Broadcast attorneys suggested to us that the commission may be behind on developing software required for the incentive auction. Several attorneys said they believed that software would be made available for auction participants to examine if it were ready, and it hasn't been released by the FCC. A delay of the auction could give the commission more time to finish the software, some attorneys said. One broadcast attorney told us it was unlikely the FCC was seeking a delay on purpose.
Auction participants will have the chance to use and practice with the bidding software before the incentive auction begins, an FCC spokesman told us. Chairman Tom Wheeler has told Congress that the software is in the final testing stages, the spokesman said.
Padden said he has been assured by FCC officials that the software is ready. "Those who keep questioning the auction schedule also continue to question where President [Barack] Obama is born and the truth about Area 51," Padden said. Speaking generally at the NAB State Leadership Conference Tuesday (see 1602230070) Commissioner Mike O’Rielly said he didn’t think the FCC was likely to delay the auction and that a court-ordered delay would be a "heavy lift."
Separately from Videohouse and the other excluded Class A's, Latina Broadcasters filed an emergency motion for stay in docket 12-268 and a petition for review in the D.C. Circuit. Though Latina asked for a stay of the auction, it would prefer that the FCC recon order be stayed instead pending court action on the petition for review, said the court filing. Because the FCC released the order excluding Latina and the other Class A's so close to the March 29 start of the auction, Latina will seek "judicial relief" if the recon order isn't stayed by Wednesday, the motion said.