Arguing that its decision in the Incentive Auction order not to require protection of low power television (LPTV) stations during the channel repacking process flows naturally from the secondary status of LPTV station operations, the FCC told the D.C. Circuit Court last Friday that legal challenges against the incentive auction rules filed by two LPTV licensees lack merit and should therefore be rejected by the court. Both LPTV industry petitioners—Mako Communications LLC and Beach TV Properties, Inc.—have asked the D.C. Circuit to review the Incentive Auction order, which was adopted by the FCC in May 2014, and/or a related order on reconsideration issued by the FCC last year. Among other things, the petitioners contend that the FCC’s refusal to grant LPTV licensees protection during the broadcast channel repacking process alters the rights of LPTV stations and effectively revokes their licenses. Mako is challenging the reconsideration order, issued in June 2015, in which the FCC declined to reconsider Incentive Auction rules that extend protected status exclusively to full power and Class A television stations. Beach, meanwhile, has asked the court to review both the Incentive Auction order and the reconsideration order.
As it reminded the D.C. Circuit panel of its previous pronouncement that “a challenge to an agency order that does more than deny reconsideration is not reviewable unless it rests on new evidence or changed circumstances,” the FCC declared that “Mako’s claims are therefore unreviewable and should be dismissed.” With respect to Beach, the FCC emphasized that the “explicit preservation mandate” of the 2012 Middle Class Tax Relief and Job Creation Act, which authorized the FCC to conduct incentive auctions, “extends only to full power and Class A stations—not LPTV stations.” Accordingly, the FCC asserted that Beach’s argument in favor of LPTV protection “is squarely at odds with the statute’s primary objective of repurposing spectrum for new uses.”
While acknowledging that “some LPTV stations may be displaced to different frequencies” or may be forced to go off the air as a consequence of the incentive auction, the FCC further claimed that “these consequences do not revoke any LPTV station’s license.” Rather, the FCC told the court that these consequences “simply illustrate one of the longstanding conditions” of LPTV and other licenses which are classified as secondary: “they permit operation only if there is no interference with primary users.”