Free Access & Broadcast Telemedia (FAB) has filed the opening salvo in its second lawsuit challenging the FCC spectrum auction.
FAB has argued that the FCC was arbitrary and capricious in not protecting low-power TV channels in the post-auction repack given statutory prohibitions on altering their spectrum usage rights.
The FCC points out that those rights are also, by rule, secondary to those of full-powers.
In its initial brief to the U.S. Court of Appeals for the D.C. Circuit, FAB reiterates that argument but has more arrows in its quiver.
FAB says the FCC's channel-sharing order violates the Regulatory Flexibility Act for not quantifying the impact on LPTVs, not considering alternatives to its approach to them, and not taking steps to minimize the impact.
FAB says that in addition to being arbitrary and capricious, the FCC's mandate that LPTVs vacate their channels as soon as a wireless carrier starts testing the spectrum it wins at auction is unconstitutional.
FAB says that given that is triggered by a notice from those carriers without FCC review that is a delegation of government enforcement power in violation of due process.
FAB also argues it is an unconstitutional taking of property in violation of the Fifth Amendment.
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