A federal appeals court has denied an expedited hearing of its challenge to the FCC's incentive auction repack plan.
The U.S. Court of Appeals for the D.C. Circuit instead scheduled oral argument for May, which means a decision might not come until early summer--the incentive auction is scheduled to start March 29, though that is actually only the last day for stations to declare they are participating and how.
The actual online auction won't begin for at least a couple weeks after that and the repack plan won't be due until six months after that.
The two cases, Mako Communications, LLC v. FCC and Free Access & Broadcast Telemedia, LLC and Word of God Fellowship, Inc. v. FCC are scheduled to be heard on the same day and by the same three-judge panel: Judges David Tatel, Janice Brown, and Thomas Griffith.
The court did agree to revise the briefing scheduled, but did not say to what.
The incentive auction spectrum legislation does not necessarily preserve LPTV station coverage or interference from full-power stations and the FCC auction framework does not protect them.
The LPTV petitioners say lack of protection does violate another portion of the legislation, which says that “[n]othing [in it] shall be construed to alter the spectrum usage rights of low-power television stations."
Problem is that LPTVs already lack the status as full-powers. "[T]he Commission’s decision not to protect LPTV stations in the repacking is entirely consistent with their secondary spectrum usage rights, and does not alter them," the FCC told the court last month in response to the suit.
"[A]lthough repacking could lead in specific cases to an LPTV station being forced to go off the air permanently, LPTV stations have always faced that risk: their status as a secondary service means that they can be forced off their channels by primary users of the same spectrum, and required to cease operations if they cannot find a different channel on which to operate. That potential consequence resulting from LPTV status reflects those limited license rights; it does not revoke them."
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