The FCC has told the U.S. Court of Appeals to reject a court challenge to its decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations.
The petition for the court to review that decision was filed by Free Access & Broadcast (FAB) Telemedia.
In its filing, the FCC said the court did not even have jurisdiction over the petition to review that decision because "the petition raises issues that were resolved in prior FCC orders and were not reopened in the orders on review," which were "measures to help displaced LPTV stations find new channels" rather than a revisit of the decision not to protect them.
The FCC says it is settled that the statute creating the auction and repack did not mandate protecting LPTVs from displacement and the FCC, in its discretion, chose not to do so.
The FCC pointed out that in an earlier case, the same court had concluded the commission "reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would ‘severely limit… recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.’”
The FCC argues that FAB is trying to relitigate settled decisions through to succeeding decisions—on channel sharing and when wireless companies could commence operations on reclaimed TV channels.
FCC attorneys teed up what they saw as the five key questions in FAB's case, to which they answered yes, no, yes, no and yes.
1. "Is the petition for review time-barred because the issues it raises were resolved in prior FCC orders and were not reopened in the orders on review?"
2. "Is any petitioner a 'party aggrieved' by the Commencing Operations Order when none participated in the FCC proceedings leading to the Order?"
3. "If the Court reaches the merits, are petitioners’ arguments either foreclosed by this Court’s decision in Mako or based on misreading of the orders on review?"
4. "Does either order on review raise serious constitutional questions?"
5. "Did the Commission comply with the Regulatory Flexibility Act in the Channel-Sharing Order?"
"The FCC says it has handled the spectrum auction in accordance with the law and that all aspects of the auction being challenged now in court are settled. Free Access & Broadcast Telemedia LLC respectfully disagrees on both counts," said FAB communications director Dave Seyler. "We will continue to pursue our case at the US Court of Appeals for the District of Columbia Circuit."