Yesterday, attorneys for low power television (LPTV) station owners Mako Communications and Beach TV Properties, Inc. outlined their grievances against the FCC’s incentive auction rules at the D.C. Circuit Court.  The petitioners asserted that the FCC’s refusal to grant LPTV licensees protection during the broadcast channel repacking process violates Section 6403(b)(5) of the 2012 Middle Class Tax Relief and Job Creation Act, which states that “nothing in this subsection shall be construed to alter the spectrum usage right” of LPTV stations.  Counsel for the FCC, meanwhile, highlighted the secondary status of LPTVs in reminding the court that the agency is authorized under Section 6301(b)(1) of the 2012 Act to “make . . . reassignments of television channels as the Commission considers appropriate” and to “relocate such portions of such spectrum as the Commission determines are available for reallocation.” 

Arguments were heard by a three judge panel consisting of judges Thomas Griffin, Sri Srinivasan and David Sentelle.  In a related development, the same panel also listened to arguments presented by a third petitioner, Free Access & Broadcast Telemedia (FAB).  As it echoed many of the arguments presented by Mako and Beach, FAB—an investor in LPTV licensees that holds no LPTV licenses of its own—defended its standing or eligibility to challenge the incentive auction rules.  Meanwhile, in presenting his client’s case to the court, counsel for Mako claimed that the secondary status of LPTV stations relates only to interference from full power and Class A television stations, which LPTVs are bound to accept.  Charging that the FCC is using the secondary status of LPTVs as a justification for revoking their spectrum and forcing them off the air, Mako complained “there’s just nowhere for the [LPTV] stations to go” once the incentive auction repacking process is complete. 

Countering Mako’s arguments, FCC Associate General Counsel Jacob Lewis maintained that there was no alteration of LPTV spectrum rights as LPTV licensees retain the same secondary status they held before the incentive auction rules were adopted.  Asked by Judge Sentelle, “what are the lower power stations secondary to,” Lewis answered that the list includes wireless stations as well as full power and Class A television stations.  As he cited a 2002 FCC order specifying that LPTV stations can be secondary to wireless services, Lewis told the court that Congress could have made an explicit statement in the 2012 law if it had wanted to protect LPTV stations from displacement.