The judges have been picked for the ongoing legal challenge to the FCC's broadcast incentive auction.
On May 16, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in the case of Free Access & Broadcast (FAB) Telemedia.
It is the third of three cases being argued that day before judges Karen Henderson, Sri Srinivasan and Thomas Griffith.
FAB is challenging the FCC's decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations.
The FCC says it is already settled that the statute creating the auction and repack did not mandate protecting LPTVs from displacement and the FCC, in its discretion, chose not to do so.
The FCC also pointed out that in an earlier challenge, the same court—in rejecting a challenge to LPTVs' auction status by Mako Communications—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.’”
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 and that it constitutes an unconstitutional taking of property in violation of the fifth amendment.
FAB also says the FCC's channel-sharing order violated 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.
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