The FCC won't reconsider its decision not to allow two Class A-eligible low power TV stations to participate in the incentive auction or protect them in the post-auction repack, denying it on procedural grounds as well as on the merits.
Class A "in core" (chs. 2-51) low-powers can participate in the auction, but only Class A-eligible stations (ones that have the ability to upgrade to Class A status) that had either filed for a construction permit by Feb. 22, 2012, when the incentive auction legislation took effect or had filed for a class A license by that date could participate.
Abacus and Videohouse and Latina Broadcasters of Daytona Beach, owners of two Class A-eligible LPTV stations but who had filed for "in core" status but had not filed for Class A status by that date challenged the FCC's initial decision excluding them, pointing out that the FCC had made an exception for another station.
The FCC also initially was not going to include Class A stations that had a construction permits, but only those that had built facilities, but decided to include the dozen of so in the former category at its discretion.
The FCC wanted to limit the number of protected stations because that would limit the space in which to repack other stations after the auction.
The LPTVs contended that their stations were no different from the out-of-core Class A-eligible LPTV stations the commission did use its discretion to protect and that adding them to the list would not hurt repacking flexibility.
The FCC disagreed, saying that even if it had not found the petition to reconsider procedurally defective: "KHTV-CD and the other stations in the protected group filed applications for a Class A construction permit before February 22, 2012, and Petitioners did not."
Republican commissioner Ajit Pai dissented from the decision. "The decision to remove protection from Latina while maintaining it for KHTV is utterly indefensible. And it is impossible to reconcile the Commission’s ostensible support for promoting diversity with such shabby treatment of one the few television stations in this nation owned by a Hispanic woman," he said.
Fellow Republican Michael O'Rielly supported excluding the stations but not the process that got the FCC there. "I concur with the decision to exclude the stations as outlined in this item," he said, "and dissent in part because I cannot agree with this process whereby the Commission continues to inappropriately draw and move lines regarding entities receiving discretionary protection."