LPTVs to FCC: See You in Court - Broadcasting & Cable

LPTVs to FCC: See You in Court

Say denial of incentive auction-related petitions will trigger legal challenge
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Mike Gravino, director of the LPTV Spectrum Rights Coalition, tells B&C/Multichannel News that taking the FCC to court over the incentive auction is now a "given."

That comes after the FCC denied more than two dozen LPTV decisions to reconsider various aspects of the upcoming incentive auction. Except for class A LPTVs, low power stations and translators, the latter of which help extend the reach of full-power stations to hard-to access populations, don't get to participate in the auction, or get protection from interference of displacement in the station repack after the auction.

Gravino said that representatives of his industry, the National Association of Broadcasters and noncommercial TV execs are meeting with FCC chairman Tom Wheeler Monday to talk about the FCC's Auction Procedures public notice, which will deal with other issues with the FCC's denial of those petitions, but signaled the die is cast for further legal action.

The U.S. Court of Appeals for the D.C. Circuit recently rejected the National Association of Broadcasters and Sinclair's legal challenges to the auction, but it looks like it will be getting some more action.

"Taking the FCC to court is a given for the LPTV industry, but which group does it, and when, is still being analyzed."

There were over 25 denials of LPTV petitions, essentially all of the ones which were submitted. Unlike the NAB and Sinclair legal challenges, which accepted a speedy process by the court, LPTV will probably not be so accommodating, he said.

Both broadcasters and the FCC asked the court for an expedited hearing.

"[I]f the FCC attempts to move the auction process forward while the cases are still in the front of the court," Gravino said, "a stay will be asked for." Asking for a stay and getting one are two different things however. There is a high bar for getting a stay—just ask ISPs who were denied a stay of the FCC's net neutrality rules recently by the same court.

But even without a stay, Gravino predicted the LPTV legal challenge could not be resolved for at least a year. The FCC is still planning to hold the auction in early 2016, with broadcasters beginning to apply to participate starting this fall.

The coalition argues that the FCC refused to even study the impact of LPTV on the process.

In the text of its order denying the LPTV petitions to reconsider, the FCC said "we cannot conclude that we must further analyze the potential impact of the incentive auction on the LPTV service before conducting the repacking process." But in that "further" was the suggestion, later made explicit, that it had already gauged that impact in the context of the statutory language that provided no auction protections for non-class A LPTVs or translators.

"We declined to extend repacking protection to LPTV stations. Nevertheless, recognizing the important services provided by the LPTV stations, we adopted a number of measures to mitigate the potential impact of the repacking process on LPTV stations, and initiated a separate proceeding to consider additional measures," the FCC said. "In short, we have taken into consideration the potential impact of the repacking."

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