Seeking a ruling from the court by March 11, Latina Broadcasters of Daytona Beach filed their brief with the U.S. Court of Appeals for the District of Columbia bright and early Monday (March 7), according to a copy supplied to B&C.
Latina, which owns Azteca America affiliate WDYB, is trying to get the court to either allow it to participate in the upcoming spectrum auction—by staying the FCC's decision that it was ineligible—while the court is considering its underlying challenge, or delay the March 29 start of the auction while the court considers the case.
The FCC briefed the court Friday (March 4) on why its decision should stand and the auction should start.
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 the FCC accidentally included it anyway and Latina applied to participate by the Jan. 12 deadline. On Feb. 12, the FCC informed Latina it was not in, which the FCC said was essentially just correcting a mistake.
But Latina said that the FCC's response "underscores that its last-minute decision to strip WDYB’s Auction eligibility was not a reasonable exercise of discretion, but an arbitrary act of outcome-driven decision making" that denied it due process.
Latina pointed out that the FCC had made "seven separate representations" that WDYB was eligible, then provided no notice that it was reconsidering that status. It also pointed out that WDYB was the only station the FCC said was auction eligible, then "stripped" of its eligibility.
The FCC argued that allowing Latina back in provisionally would mean it might have to let in others challenging the auction and threaten its success and the public interest.
Latina said that letting one station back in threatened the auction was "disingenuous."
The FCC did allow KHTV Los Angeles to participate even though it also failed to meet the FCC's criteria by the Feb. 22, 2012 deadline. Latina said it was similarly situated and should have been treated the same. It also said the FCC's distinction between the two, that KHTV had spent a decade trying to upgrade to the Class A low-power status that made it auction eligible, was a distinction without a difference and that Latina had also tried to upgrade well before the deadline.
"In light of Latina’s likelihood of success on the merits, the irreparable harm in the absence of a stay, and the lack of harm to the FCC or any other party from a stay [key showings for a stay request], the Court should stay the Order (or the Auction)," Latina said.
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