FAB Telemedia to Court: FCC Can't Have It Both Ways

FAB Telemedia et al., representing LPTVs not included in the FCC's spectrum auction, have told a federal appeals court that it has standing to seek a stay of the auction's March 29 start date and will suffer irreparable harm if the stay is not granted.

That is the last of the stay request filings to the court, so the clock is now ticking on a decision that could delay the spectrum auction, or perhaps reinstate at least one of the petitioners. The FCC is worried that if the court lets one excluded station in provisionally, the others might seek similar redress.

The U.S. Court of Appeals for the D.C. Circuit is now considering three separate stay requests from LPTVs, including one from Latina Broadcasters that primarily just wants back in the auction—the FCC included it on a provisional list and has since said that was a mistake.

"The FCC argues that Joint Petitioners face no injury sufficiently certain or irreparable to justify a stay, on the ground that the incentive spectrum auction’s impact on LPTV broadcasters 'depends on a host of factors' it insists cannot be known now," FAB said, according to a copy of the filing. "Yet the Commission also claims the auction must proceed promptly on March 29, 2016 because 'any delay' necessarily harms the public interest and third parties. This 'Catch 22' inexplicably asserts that Petitioners are at the same time too early and too late to seek interim relief from this Court. The FCC cannot have it both ways; its position is wrong and unsubstantiated."

The FCC also argued in its filing with the court March 15 that the FAB petitioners—there are three—did not have standing to seek the stay for a variety of reasons.

As to standing and jurisdiction issues, FAB says the FCC is merely citing prior arguments and refers the court to its briefs on the merits already filed.

"FAB believes the existential rights of low power television nationwide must not be cast aside by the FCC’s race to lower the auction gavel, in direct conflict with the ironclad rights of those broadcasters seeking orderly judicial review of their spectrum usage rights to continue to provide free TV service to viewers," said David Mallof of FAB Telemedia.

FAB has asked the court for a decision by March 28, the day before the auction launch. Oral arguments in the underlying appeal of the FCC's auction framework are not scheduled until May 5.

Actually, the bidding part of the incentive auction probably won't start until early May. March 29 is the date by which TV stations have to elect to participate and choose their options.

The court will likely have to release three separate stay decisions—for Latina, Videohouse and FAB.

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.