More LPTVs Seek Spectrum Auction Stay

With the FCC having just denied their spectrum auction stay request, a trio of LPTV owners not eligible for the upcoming auction have joined the parade marching to federal court asking it to delay the March 29 launch of the Spectrum auction

Those are joint petitioners Free Access & Broadcast Telemedia, LLC (FAB), Word of God Fellowship, Inc. and Mako Communications, LLC.

Actually the bidding won't begin until early May. but given that the court didn't schedule oral argument on this or other underlying challenges to the auction until early May, the parties say the FCC should not be allowed to start the auction, potentially, without them.

"Because briefing is complete and argument will be heard in eight weeks a stay of limited duration is both necessary to protect Joint Petitioners from irreparable harm and manifestly in the public interest," they told the court.

They argue that they are likely to get a favorable court ruling because the FCC's decision to exclude LPTVs from the auction stemmed largely "from the agency’s desire to clear-cut the television spectrum band, maximizing the spectrum to be sold to new licensees."

The FCC has said that adding back the LPTV's would reduce the spectrum that could be cleared for wireless, which it said was not in the public interest. But it also pointed out that Congress did not require LPTVs in the auction or protect them in the repack, so, it argues, it is on solid ground.

FAB et al. join Latina Broadcasters of Daytona Beach and Videohouse in seeking a stay of the auction. Latina would prefer the court stay the FCC's 11th hour, and it says unfair and inaccurate, decision that it was not eligible (), but absent that wants the delay.

They all have underlying challenges to the FCC's auction framework that the court will be hearing arguments on, but not until after March 29.

The FCC said in denying the FAB et al. stay request Thursday (March 10), as it did in denying the Latina and Videohouse requests, that they are unlikely to win their underlying cases, that not granting a stay would not irreparably harm them, and that staying the auction until their challenges were resolved would hurt the public interest.

"The beginning of the auction is now only three weeks away," the FCC said in denying the stay request. "The Court has scheduled oral argument in May and will need time after that to reach a decision. In addition to the harms described above, a stay would extend the quiet period that is now in effect for both the reverse and forward auctions,35 which limits the types of discussions that would otherwise take place between and among broadcasters and prospective forward auction bidders.36 Moreover, delaying the auction until all reviews and appeals are final would not be justified by rule or precedent and would be inconsistent with Congress’s goals in enacting the Spectrum Act."

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.