Wireless association CTIA, the Competitive Carriers Association (CCA), the Consumers Electronics Association (CEA) and the Expanding Opportunities for Broadcasters Coalition (EOBC) are among intervenors urging the D.C. Circuit Court to reject legal challenges filed by the National Association of Broadcasters (NAB) and Sinclair Broadcast Group against the FCC’s incentive auction rules.  

Filed last week, the intervenor briefs follow a similar submission by the FCC, which defended the May 2014 incentive auction order as “a reasonable exercise of the agency’s authority” under the spectrum-related portions of the 2012 Middle Class Tax Relief and Job Creation Act (“2012 Act”).  The NAB appeal targets the FCC’s decision to use the new “TVStudy” software in implementing the broadcast coverage preservation methodologies required by OET Bulletin 69.  Sinclair meanwhile has asked the court to overturn the incentive auction order on grounds that it “is arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act.” 

In a joint brief, CTIA, CCA and CEA advised the court that the incentive auction order “lawfully and efficiently addresses” congressional concerns that demand for wireless spectrum is outpacing supply.  The brief takes issue with NAB’s interpretation of 2012 Act provisions that suggest the FCC “must conform not just to OET-69’s method . . . for calculating station coverage but to the way the Commission has implemented that method in the past.”  The joint intervenors argued instead that “OET-69itself refutes that reading, making clear that the methodology and the way that methodology is implemented are two separate things.”  The joint intervenors further maintained that “Sinclair’s claims fail on the merits,” contending, among other things, that Sinclair lacks standing to challenge the repacking deadline prescribed by the FCC and the FCC’s interpretation of Section 309(j)(8)(G)(ii), which outlines the conditions under which broadcasters may relinquish spectrum in exchange for a share of the incentive auction proceeds.  

The EOBC,meanwhile, highlighted 2012 Act provisions that require the participation of at least two competing broadcast licensees in the incentive “reverse auction” process.  That coalition advised the court that “the FCC properly concluded that the two competing participants requirement . . . is satisfied if two independently controlled stations anywhere in the nation submit a complete and rule-compliant application evidencing that they might submit a bid to relinquish their spectrum.” As it stressed that its member stations are “open to considering the possibility of selling some, or all, of their spectrum usage rights in the incentive auction,” the EOBC voiced concern about “the possibility of efforts to delay the auction that would undermine the good faith reliance of EOBC members” on FCC plans “to move forward with the incentive auction on a publicly announced timetable.”  Lamenting that“the mere pendency of this appeal has caused the FCC to postpone the start of the auction,” the EOBC termed the prospect of further delay as “threatening to the extensive work already done exploring potential channel sharing, which efforts are time-sensitive and difficult to salvage.”