FCC Tells Court Spectrum Auction Should Proceed Apace

The FCC, with the backing of the Justice Department, has outlined the reasons it thinks LPTV licensee Latina Broadcasters of Daytona Beach should not be granted a stay by a federal appeals court that could upset its plans or delay the start of the broadcast incentive auction.

That came in a court-ordered brief Friday (March 4).

Latina had sought a stay of the FCC's Feb. 12 decision excluding it or, alternatively, a stay of the March 29 auction start. It has until March 7 to respond. The FCC could have waited until the end of the day to file the brief, so it can't be accused of trying to run out the clock.

In the joint brief, the FCC and DOJ said that Latina "has not demonstrated that this Court should either delay the FCC’s upcoming broadcast spectrum incentive auction (scheduled to commence on March 29, 2016) or direct the FCC to permit Latina, the licensee of television station WDYB, to participate in the auction and be eligible for repacking protection."

The FCC defended its process for auction eligibility, saying: "The FCC’s application of the line it drew in exercising its discretionary authority to determine auction eligibility was entirely reasonable, and Latina has no entitlement, equitable or otherwise, to participate in an auction for which it is not eligible."

The FCC initially found Latina to be eligible provisionally, but concluded later it should not be on the final list because it did not have an application or construction permit, then accidentally included it anyway. The Feb. 12 decision corrected that, the FCC says.

The FCC's filing is just the latest in a series of filings, or was until a pair of briefs in support of the FCC were filed with the court Friday.

Just how complicated the filings and cross filings have become can be seen in the title of one of the briefs: "CONSUMER TECHNOLOGY ASSOCIATION’S AMICUS STATEMENT IN SUPPORT OF RESPONDENTS’ OPPOSITION TO PETITIONER’S EMERGENCY MOTION FOR STAY PENDING APPEAL."

Translated: CTA supports FCC's arguments to the court for why the court should deny Latina's stay request. OK, it's still complicated.

CTA's members include the wireless carriers, technology service providers, and device manufacturers that stand to benefit from the FCC's swift reclamation of broadcast spectrum and re-auction to wireless carriers and the tech companies that supply their equipment. It tells the court the impact of auction delay would be "catastrophic" on its members.

"Many of CTA’s members plan to participate in the broadcast television spectrum incentive auction (Incentive Auction) scheduled to begin March 29, 2016," it told the court. "Other CTA members plan to use the additional unlicensed spectrum that will be generated by the Incentive Auction. Because CTA represents companies from all segments of the consumer technology market, it is keenly aware of the effects that a stay of the Incentive Auction would have on members of the industry and the general public."

"Any delay in the Incentive Auction would stifle innovation and have negative consequences for the U.S. economy, which is increasingly dependent on the availability of adequate wireless spectrum to meet the skyrocketing demands of wireless devices," CTA argues. "A stay is therefore against the public interest. A delayed auction also would have a catastrophic effect on CTA’s members, who have invested millions of dollars in financial, strategic, and practical planning premised on a March 2016 auction."

Also filing a brief in support of the FCC was a group of broadcasters with stations in the auction and eager to get on with it.

Ellis Communications, PTP Broadcasting Management, LLC and WRNN License Company all told the court that they had all prefaced their business plans on a March 29 auction start and delaying it would put them in limbo, including being constrained by limits on communications with third parties triggered by the application deadline.

"The cost of such uncertainty is real and substantial," they said.

The National Association of Broadcasters has not weighed in on the flurry of filings either for or against the stay--it presumably has members participating in the auction and others who are not.

"This is one of a hundred decisions we make internally every week," said NAB spokesman Dennis Wharton. "As a general rule, we file on issues involving broadcasters industry-wide, rather than those that involve a handful of broadcasters."

The stay requests are from a handful, but the impact of delaying the auction would affect everyone.   

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.