Free Access & Broadcast Telemedia (FAB) et al., representing a group of low power TVs challenging the incentive auction, have filed a brief with the U.S. Court of Appeals for the D.C. Circuit, one of a host of filings that court is getting from LPTVs.
In its brief to the court, FAB argues that the FCC has illegally altered the spectrum rights of LPTVs, took a "wildly" overbroad view of the incentive auction legislation, and cannot justify its "mistreatment" of LPTVs.
Their central argument is that Congress meant for LPTV spectrum rights to be protected, but that the way the FCC has structured the auction without letting LPTVs participate or have their signals protected in the post-auction repack abrogates those rights.
"[T]he Act expressly prohibited the FCC from reorganizing licensees in a way that would 'alter the spectrum usage rights of low power television stations,'" they told the court. "Yet the FCC ignored Congress’s restriction, choosing instead to construct a process that may shutter hundreds upon hundreds of low-power television (LPTV) stations. The FCC replies that this will not actually 'alter' the LPTV stations’ 'spectrum usage rights,' because the stations have no right to be protected from the FCC’s reallocation of spectrum for new unlicensed purposes—a position justified neither in the Spectrum Act nor the precedents that the FCC cites."
FAB wants the court to vacate the FCC's incentive auction framework, stay the March 29 start of the auction and remand its auction rules back to the FCC with instructions to protect LPTVs.
The court has not set an oral argument date for the FAB challenge, though it has set a May 9 date for the Videohouse challenge.