FAB Seeks Further Review of FCC Spectrum Auction Decision

Says court denial of standing is punitive, erroneous

With the forward portion of the FCC's broadcast incentive auction scheduled to start Aug. 16, Free Access & Broadcast Telemedia (FAB) has asked either a panel of judges or the entire bench of the U.S. Court of Appeals for the D.C. Circuit to review its decision denying FAB standing to challenge the auction.

LPTV station owner Mako Communications and LPTV option owner FAB Telemedia told the court during oral argument May 5 that the FCC is trying to turn those stations' acknowledged secondary status when it comes to interference issues into a blanket license to displace them in the spectrum auction.

But the court did not even get to FAB's argument (it has yet to rule on Mako’s auction challenge). On June 28, a three-judge panel ruled that because FAB did not own an LPTV or a stake in an LPTV, it lacked standing even to bring the suit.

In asking the court to rethink that decision, FAB said the original decision ignored Congress' clear instruction that any aggrieved party can petition for review of an FCC decision.

"The panel’s decision runs contrary to congressional intent and forecloses option holders’ only avenue for protecting their interests against unlawful agency action, with destabilizing consequences for options markets, which are essential financial tools in the communications sector."

The court also denied standing to Word of God, which does own LPTVs, because it did not participate directly at the FCC on the auction. But FAB tells the court that Word of God did participate indirectly via the National Association of Broadcasters and that not to treat that as participation "unnecessarily punishes companies that rely on trade groups to advocate for them."

The request for review is a long shot, but it is probably not the only legal arrow in the LPTV quiver as station owners seek protections for their spectrum in advance of the post-auction station repack.