The FCC's Media Bureau has declined to grant a stay of its decision not to let Class A low power WDYB-CD Daytona Beach, Fla., participate in the incentive auction, or, in the alternative, to stay the March 29 start date of its incentive auction.
The bureau said denying the stay would not cause irreparable harm, one of the tests for a stay, because the station would not have to go off the air. It also said granting the stay would "harm others."
That means the station, which is owned by Latina Broadcasters of Daytona Beach, cannot participate in the auction while a federal court considers its challenge to that FCC decision.
Latina asked the court Feb. 19 to review the FCC decision.
Latina may not have to go off the air, but the financial stakes were high, the LPTV Spectrum Rights Coalition points out. WDYB's opening bid price in the auction is $87,399,900. There were no guarantees it would win, of course, or get that top price if it did, but if it isn't in the auction, it has no chance of winning.
In a Feb. 12 ruling, the FCC concluded WDYB was not eligible for the auction--after initially signaling it was--because it had missed a February 2012 deadline for stations that were upgrading to Class A status. Only Class A LPTV's can enter the auction or have their stations protected in the repack.
Latina pointed out that the FCC had made an exception for a station it argued was similarity situated.
In declining both the request for a stay of the deicison, or to delay the start of the auction, while the court was considering Latina's appeal, the FCC explained what harm granting a stay of the auction would do.
"The Commission has devoted considerable time and resources since the enactment of the Spectrum Act to preparing for the incentive auction," said the bureau, "an unprecedented proceeding involving numerous complex and highly technical issues, representing the culmination of four years of work by the Commission and dozens of members of its staff, with significant ramifications for the nation’s economy and consumers. The beginning of the auction is now only five weeks away. A delay would disserve both consumers and eligible entities who have developed business plans based on the current schedule, including securing financing and deferring other business plans."
The Media Bureau also explained why it was not going to stay its decision not to include WDYB in the auction, pointing to the numerous stations with legal challenges who could seek the same result.
"In addition to Latina, three other Class A licensees have sought judicial review of the Commission’s eligibility decisions, the bureau said. "A former full-power station permittee has
filed an Emergency Petition for Writ of Mandamus. Moreover, LPTV interests have sought judicial review of the Commission’s decision not to protect LPTV stations, which number in the thousands. Accepting Latina’s claim for provisional eligibility, therefore, would also necessitate provisional eligibility for numerous other stations .Adding to the list of stations eligible to participate in the auction and/or receive repacking protection at this stage," said the bureau, "would entail system modifications that would impact the overall schedule for the auction and frustrate the purposes of the Spectrum Act."
Latina had threatened to seek a court stay of the decision, or alternately the March 29 auction start date, if the FCC did not grant its request for one of those options, so look for Latina to file that stay request as early as Friday.