D.C. Court Rejects Spectrum Auction Challenge

Says LPTVs can be displaced in repack

The U.S. Court of Appeals for the D.C. Circuit has dismissed a low power TV challenge to the FCC's incentive auction.

Mako Communications had challenged the FCC's decision not to extend protections to LPTV stations in the auction and post-auction repack of TV stations. Mako said that violated the Spectrum Act.

But the FCC argued the act had provided no protections. Mako said though Congress did not specifically protect them that did not trump Congress' mandate elsewhere in the Spectrum Act that nothing should alter LPTV's spectrum usage rights. The court agreed with the FCC and dismissed the challenge.

The same court upheld the FCC's rules for the auction and repacking process against a challenge brought by the National Association of Broadcasters and has rejected earlier LPTV challenges, though one from FAB Telemedia remains in the hopper, with an opening brief filed this week.

In that decision, the court concluded that the FCC was within its discretion not to protect fill-in translator stations in the repack to avoid impairing spectrum in the repack. The FCC succeeded in offering most of the spectrum in the auction with little or no impairment from interference, which makes it more valuable.

The FCC gave that same reason for not protecting LPTVs. "We see no reason for any different result here."

"As a general matter, LPTV stations’ secondary status renders them subject to displacement insofar as they cause interference to primary services," the court said.