Court Battle Could Muddy Spectrum Auction Picture

Case won't be heard until sometime in May

FCC chairman Tom Wheeler has pledged that the broadcast incentive auction show must go on starting at the end of March, but a federal court could have something to say about that.

The U.S Court of Appeals for the D.C. Circuit won't hear oral arguments in a challenge to the FCC's incentive auction until May, according to the LPTV Spectrum Rights Coalition and a copy of the Feb. 23 court decision, leaving open the possibility that the same court could be asked to delay the start of the auction.  

The U.S Court of Appeals for the D.C. Circuit actually agreed to an aggressive hearing schedule for some LPTV stations' court challenge to the FCC's broadcast incentive auction, but not aggressive enough to be completed by the March 29 start date of the auction, or anything close. The court won't even hold oral argument until sometime in May.

The likely next step would be for the parties to ask the court to stay the start date of the auction. FCC attorneys have suggested in past court filings that might have to be the legal recourse for the stations, but it has also argued that the stay is a high bar that would not be met.

The LPTV owners—The Videohouse, Fifth Street Enterprises, LLC, and WMTM, LLC—had wanted the FCC to reconsider the commission’s decision not to protect their signals in the post incentive auction repack or allow them to participate in the auction because they did not file their applications for Class A status until after a February 2012 deadline for doing so.

They also asked the court last month to get the FCC to finish its reconsidering ASAP, but the court denied that request.

At the time, the FCC pointed out that the parties could always seek a stay of the start of the auction if need be, which led communications firm Fletcher, Heald & Hildreth's CommLawBlog to ponder whether the FCC wanted the auction postponed.

The FCC did not rule on the Videohouse petition for reconsideration—it was denied—until Feb. 12, causing Videohouse to seek the expedited court hearing.

The court gave them only two days—until Feb. 25—to file their initial brief, with the respondent brief (the FCC) getting until March 28, and replies to that April 1, which means the FCC will get lots of time and the LPTVs not much time to respond.

The FCC probably won't start the actual auction until a couple of weeks after that date, but the court has not scheduled oral argument until "an appropriate day in May," and will need time—usually several months and likely at least weeks, to make a decision.

A stay of the auction would be a tough legal bar to get over for Videohouse, but CommLawBlog suggested it could happen. "After all, it’s hard to imagine that the court would move this quickly and this favorably in response to the Videohouse Three’s emergency motion to hustle up the briefing, only to neuter that action by allowing the auction to go forward with the Videohouse Three on the outside looking in."

Separately, another LPTV who was excluded from the auction and was informed of that in the FCC's Feb. 12 decision, has asked the FCC to let it participate provisionally, and gave it until Feb. 24 to make a decision or it was heading to court to potentially block the auction.