In a second development concerning the incentive auction, several low-power television (LPTV) station licensees asked the D.C. Circuit Court of Appeals this week to overturn an order, handed down by the FCC in June, that denies reconsideration of incentive auction rules adopted by the FCC in May 2014. Filing a joint petition for review, Free Access & Broadcast Telemedia LLC and Word of God Fellowship, Inc. (WOGF) told the court that the reconsideration order, as well as the 2014 incentive auction order and “all related final orders and rules issued by the FCC,” should be vacated on grounds that they “alter the spectrum usage rights” of LPTV licensees in violation of the 2012 Middle Class Tax Relief and Job Creation Act. Charging that both orders are “arbitrary and capricious,” the joint petition also claims that the orders violate the Regulatory Flexibility Act of 1980 “by failing to conduct a reasonable analysis of the potential adverse economic impacts on [LPTV] stations as small entities.”

When seeking FCC reconsideration of the 2014 incentive auction order, Free Access argued unsuccessfully that the FCC “should not consider spectrum occupied by LPTV stations as vacant and available for sale in the forward auction.” Denying reconsideration, the FCC declared that Congress did not mandate protections for LPTV stations, and the agency therefore rejected arguments that it should “further analyze the potential impact of the incentive auction on the LPTV service before conducting the repacking process.”

Similar claims were presented to the D.C. Circuit in petitions filed by LPTV licensees Mako Communications and Beach TV Properties, Inc. Officials at the FCC—which prevailed in previous legal challenges against the incentive auction rules filed by the National Association of Broadcasters and Sinclair Broadcast Group—offered no comment.