Court Says FCC Has to Let Latina in Auction

Latina Broadcasters will get to participate in the broadcast spectrum auction, at least provisionally. That could delay the start of the auction by several weeks if the FCC meant what it said in arguing against the stay.

The U.S. Court of Appeals for the D.C. circuit handed down the decision late Thursday.

That outcome is better for the FCC than if the court had agreed to stay the auction's March 29 start, which was Latina's backup ask.

Granting Latina Broadcasters of Daytona Beach's request for the stay means the court thinks Latina has a good chance of winning its underlying challenge to the FCC's decision not to let it participate. Latina owns LPTV Azteca America affiliate WDYB.

In addition, the court said that it had checked out the FCC's Web site and it appeared that the FCC's data files and projections are based on Latina being eligible.

In a two-page order, the court said the FCC "has to permit Latina to participation provisionally in the upcoming broadcast spectrum incentive auction, subject to the outcome of judicial review."

The court said that it had reviewed the FCC's broadcast incentive auction web site and "it appears the agency's auction data files and other projections are based on the assumptino that petitioner's station would be eligible to participate."

As a result, the court said letting Latina in should not delay the auction.

But the FCC in its court filing said that a Latina win would mean a delayed auction.

"Allowing Latina to participate on a provisional basis would likewise delay the incentive auction and impair its ability to achieve its important publicinterest objectives. At this late date, an order requiring Latina to be included in the auction and given repacking protection would delay the start of the auction by several weeks, because it would alter the conditions that must be satisfied at each step in the auction," the FCC said.

Of course, the FCC could have been overstating the negatives as a legal strategy. The Court didn't seem to think it would be a problem from its review of the site.

An FCC spokersperson declined comment late Thursday, saying the FCC would not be commenting tonight. Latina's lawyer was not available for comment at press time.

The court said it would expedite the underlying case, but won't even hear oral argument until September 2016, so it looks like Latina is in the auction to stay.

The FCC initially found Latina to be eligible provisionally, but concluded later it should not be on the list. Then the FCC accidentally included it anyway and Latina applied to participate by the Jan. 12 deadline. On Feb. 12, the FCC informed Latina it was not in, which the FCC said was essentially just correcting a mistake. Latina asked the FCC to stay that decisionl. The FCC declined. Latina then asked the court to do the same.

Latina had pointed out to the court in its stay request that the FCC had made "seven separate representations" that WDYB was eligible, then provided no notice that it was reconsidering that status. It also pointed out that WDYB was the only station the FCC said was auction eligible, then "stripped" of its eligibility.

The FCC argued that allowing Latina back in provisionally would mean it might have to let in others challenging the auction and threaten its success and the public interest. The court did not appear to agree since it said it did not think letting this single station in would affect the timing of the auction.

Latina had said that letting one station back in threatened the auction was "disingenuous."

The FCC did allow KHTV Los Angeles to participate even though it also failed to meet the FCC's criteria by the Feb. 22, 2012 deadline. Latina said it was similarly situated and should have been treated the same. It also said the FCC's distinction between the two, that KHTV had spent a decade trying to upgrade to the Class A low-power status that made it auction eligible, was a distinction without a difference and that Latina had also tried to upgrade well before the deadline.

The court has denied one request to stay the auction's March 29 start date, but has yet to rule on another.

“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. 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,” said Nora Crosby Soto, owner of Latina.

"We are obviously very pleased with the court's decision," said David Wachen of HCH Legal, winning attorney for Latina. "We think it is a very appropriate approach. We were happy to hear the court thought we had a strong case on the merits and we are hopeful that maybe the FCC will revisit its view and do the right thing and allow Latina to participate fully so that it could focus its resources on broadcasting and the business instead of litigating. We are optimistic about our case on appeal."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.