"We meet again." That was judge Karen Henderson launching the oral argument in Free Access & Broadcast (FAB) Telemedia's challenge to the FCC's spectrum auction framework—the same court rejected an earlier FAB challenge to the auction last June.
FAB is challenging how the FCC is implementing the decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations.
The venue was the U.S. Court of Appeals for the D.C. Circuit, where a three-judge panel—the other judges were Thomas Griffith and Sri Srinivasan—heard the arguments of FAB attorney Glenn Manishin that the FCC had engaged in administrative doublespeak and misdirection to alter the spectrum rights of LPTV stations. "This is the case where the rubber hits the road on the FCC's incentive spectrum auction," he said.
The FCC decided not to protect LPTV stations or translators in the TV station repack following the spectrum auction or to set aside channels for them if and when they were displaced by that repack.
Manishin said the FCC had disguised its decision to assign exclusive rights to wireless carriers in the reclaimed 600 MHz band spectrum, likening it to a developer who cuts down all the trees to build new houses.
Judge Griffith asked about jurisdictional issues—the FCC says FAB is trying to reargue settled orders. Manishin argued that the FCC's orders were inextricably intertwined and that it had never defined the exclusive rights of wireless carriers to their new spectrum until deciding it meant that they could be displaced only on the prediction of interference.
Judge Srinivasan pointed out that by the time of the latest order FAB was challenging that there was going to be some definition of the new wireless spectrum holders' "commencing operations," by which LPTVs could be displaced.
Manishin said that initially the FCC had signaled an LPTV needed to move or adjust so as not to interfere, but that morphed in the later order to a definition of exclusive rights that was not foreshadowed in the previous order.
He said the spectrum auction statute made clear that LPTVs' (secondary) rights to spectrum could not be abridged but argued the FCC did so and that displaced stations can't even apply to share the band. Giving wireless operators exclusive rights is the opposite of protecting those LPTV secondary rights, he said.
While he said the constitutional issues—taking of property and deprivation of due process—were important, the Rosetta stone was the FCC's violation of the Regulatory Flexibility Act. He said the FCC never quantified the impact of the auction/repack on LPTVs or explained why it couldn't.
Manishin offered his own back-of-the-envelope impact study that LPTVs will be gone from the top 30 markets in 39 months—the FCC's repack deadline.
FCC attorney William Scher said that the FCC order was settled, that FAB arguments were all about decisions that were reached in 2014 and that their time to challenge has expired.
But if the court got to the merits, he said that it was settled that LPTVs were not protected in the repack, did not get channel set-asides, and that the guard bands were reserved for unlicensed use, and that when wireless carriers were ready to commence operations in their spectrum, LPTVs had to go. He said all exclusive access meant was that when those wireless operators were ready to light up their spectrum, they were entitled to access without harmful interference.
He said the FCC had already made a determination of potential or likely interference for the LPTV stations that were being displaced.
Scher pointed out that in rejecting an earlier challenge to LPTVs' auction status by Mako Communications—the D.C. court had concluded the commission "reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would ‘severely limit… recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.’”
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