Court Won't Force FCC Action on Class A LPTV Decision

Sources: FCC plans to deny petition to reconsider
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A federal court has denied a request by Class A low-power TV station owners to force the FCC to rule on their request to participate in the incentive auction. That came after the FCC signaled a decision would be forthcoming and there were still legal avenues for those LPTVs before the auction launches.

According to FCC sources who have seen a draft of that decision circulated by the chairman for a vote late last month, the commission plans to deny the request if the chairman can get three votes. Class A's are low powers but with primary status. Unlike other low powers, Class A's as of a certain date (Feb. 22. 2012)  are eligible to participate in the auction.

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

But the court did say it expects the FCC to act on the request in time for the parties to seek judicial review of that decision before the March 29 launch of the incentive auction.

Only Class A low powers can be protected in the repack.

The owners had asked the court to direct the FCC to decide by Monday (Jan. 4), given that the deadline for applying to put spectrum in the auction is Jan. 12, but the court said that the FCC's delay in deciding on the petition—which was filed in September—was not "so unreasonable" as to justify the "extraordinary" remedy of mandamus, essentially a judicial command.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that based on the FCC's response to the petition for that writ of mandamus, it expected it to rule promptly to allow that review before March 29.

In its response to the court, the FCC had said that the Jan. 12 end of the application window did not foreclose judicial relief. It also said it would be able to allow them to file applications to participate after Jan. 12 if necessary, including by staying the start of the auction.

"It is therefore unnecessary for the Court to direct the FCC to resolve the pending reconsideration petition by January 4, 2016 (or any other date, for that matter)," the FCC said.

It also pointed to the draft order disposing of the petition, which it told the court had already been circulated to the other commissioners (on Dec. 23) so there is no need for the court to compel the FCC to act, presumably what the court was referring to when it said the FCC's response signaled a decision could be forthcoming.

"We expect the FCC to act swiftly on this matter, as the clock is ticking, and the Court of Appeals is the single entity which can stop the auction at this time," said the LPTV Spectrum Rights Coalition.

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