Monty Tayloe

The U.S. Court of Appeals for the D.C Circuit ordered the FCC to respond by Tuesday to broadcaster Mako Communications' emergency request for a stay of the TV incentive auction, in a Friday order. Mako’s request for stay was filed March 10. Court decisions on similar stays requested by Latina Broadcasters and Class A station Videohouse are expected this week, several broadcast attorneys told us. The D.C. Circuit's order for a fast FCC response could be seen as a sign it's sympathetic to the low-power TV position, said Fletcher Heald broadcast attorney Harry Cole in an email.

The FCC’s Incentive Auction Task Force will send letters this week containing the passwords and information that will allow broadcasters participating in the auction to make their “initial commitment” to participate by the March 29 deadline, IATF officials said at a workshop on the reverse auction Friday. The initial commitment is the final deadline for auction participation, and the point at which broadcasters will inform the FCC whether they’d like to go off air, move to part of the VHF band, or stay on air and be repacked, said IATF Legal Adviser Erin Griffith Friday. The presentation also included a “sneak peek” at the software broadcasters will use to track and respond to bids in the incentive auction.

A court challenge by Media General against Gray Television's purchase of Schurz TV stations led Media General to violate the Communications Act, said DOJ in a statement of interest filed with U.S. District Court in Savannah, Georgia, Wednesday. A Richmond County, Georgia, Superior Court judge granted a Media General request for an injunction preventing Gray and Schurz from breaking a joint sales agreement with Media General over WAGT Augusta and from selling WAGT's spectrum in the incentive auction. The dissolution of that JSA was one of the conditions of the Media Bureau's February approval of Gray/Schurz's TV stations, and Media General's request is a violation of the Communications Act, bureau Chief Bill Lake said in a letter to DOJ. “By seeking an injunction to require continued implementation of the JSA, Media General has sought a remedy in conflict with the Commission’s order,” Lake said. “The Commission has long taken the view” it's a violation of The Communications Act for a company “to seek injunctive relief that interferes with a licensee’s ultimate control of a station,” Lake said. Gray argued in court filings the case is rightfully under the jurisdiction of the U.S. District Court in Georgia, and that the case was removed from the lower court before the injunction was ordered. However, the case was remanded to the lower court late Thursday, according to a judgment. Though the court denied a Media General request for an emergency injunction as moot, it's not clear if the injunction from the lower court still applies. According to the judgment, the U.S. District Court lacks subject matter jurisdiction over the case. But the court ordered the injunction be treated as in effect until those questions are decided. By entering into the transaction with Gray that included changes to its JSA agreement, Schurz violated the terms of that agreement, Media General argued. Under a recent congressional change to JSA attribution rules, existing JSAs are grandfathered for the next two decades, while the bureau ruled existing JSAs that are transferred will be treated as new arrangements and thus subject to the new rules. In an email to bureau staff filed as an ex parte, broadcast attorney Jack Goodman -- who represents Schurz -- speculated Media General may be planning to use this case “as leverage” as part of an attempt to argue that its JSAs can't be terminated as part of its proposed sale to Nexstar. Goodman, Media General and Nexstar had no further comment Thursday.

Although it isn't unusual for administrative agencies to reverse themselves, FCC flip-flopping on Latina Broadcasters' inclusion in the incentive auction may be extreme, attorneys and an administrative law expert told us. Though courts tend not to be sympathetic to arguments an agency didn't provide enough notice of a change in policy, the U.S. Court of Appeals for the D.C. Circuit may feel the radical shift on Latina “doesn't pass the smell test,” said George Washington University administrative law professor Richard Pierce in an interview. The FCC repeatedly telling Latina it's included in the auction and then excluding it with so little time before the March 29 start (see 1603070057) is likely to look bad for the commission and increase D.C. Circuit scrutiny of the FCC's actions, Pierce said. A rapid shift in policy often can indicate some “questionable” administrative procedure is being used, he said.

The FCC is considering a regional approach to the post-incentive auction repacking effort, said Incentive Auction Task Force Vice Chairman Howard Symons during a webinar on repacking hosted by Broadcasting & Cable Tuesday. Though the commission hasn’t reached a final decision on the repacking, Symons said repacking by region “probably makes the most sense,” compared with repacking the whole nation at once or by market.

Access to consumer data may be the real prize in the battle between pay-TV carriers and supporters of FCC-proposed changes to the set-top box market (see 1602180065), cable attorneys, analysts and data experts said in interviews.

The FCC, several trade associations and a group of broadcasters attempted through court filings to fend off a stay of the incentive auction requested by Class A broadcaster Latina Broadcasters in the U.S. Court of Appeals for the D.C. Circuit. The auction is to start March 29. “Any unnecessary delay, especially this close to the start of the auction, would cause substantial harm” to companies that have delayed business plans or have investments or financing riding on the current schedule,” the FCC said in an opposition filing Friday.

The FCC enforcement advisory on pirate radio issued Tuesday (see 1603010075) is a step in the right direction but needs to be accompanied by ramped up enforcement, broadcast officials and attorneys told us Wednesday. The statement had been in the works for at least a few weeks. Broadcasters have long complained about pirate radio, and did so even more when the FCC scaled back its Enforcement Bureau field offices. Commissioner Ajit Pai had said a whistleblower alleged the bureau was not prioritizing pirate radio enforcement (see 1512150014).

The FCC lacks authority to tell pay-TV carriers and device manufacturers where in their user interfaces that closed-caption display settings must be located, said AT&T, CTA, NCTA and the Telecommunications Industry Association in comments in docket 12-108 in response to a second Further NPRM. A joint filing by several consumer groups, including the National Association of the Deaf and Telecommunications for the Deaf and Hard of Hearing, supported the FCC proposal to require caption display settings to be on the first level of device menus.

Broadcasters have concerns about and may soon begin a lobbying push in Congress and at the FCC over the commission's policy on broadcast transactions that contain joint sales agreements, broadcast attorneys and industry officials told us. The FCC needs to fall in line with the congressional adjustments to the JSA attribution rules, some broadcast attorneys told us. In a provision of the FY 2016 omnibus appropriations law, the deadline to unwind existing JSAs was moved from June 2016 to Oct. 1, 2025 (see 1512210050). The deadline also was raised by some on Capitol Hill, who mentioned concern the commission is trying to get around the JSA law change (see 1602230070).