Last Friday, the D.C. Circuit Court removed the last potential roadblock against the start of the incentive auction as it rejected a motion, filed by low power television (LTPV) licensee The Videohouse, for a stay of the auction pending court action on the company’s pending appeal of incentive auction rules. The rules being challenged prohibit auction participation by LPTV licensees that lack Class A status. Dismissing the motion in a two-paragraph order, the three- judge appellate panel decreed that Videohouse had “not satisfied the stringent requirements for a stay pending court review.”

On the day preceding the Videohouse ruling, the same judges ordered the FCC to allow the provisional auction participation of Latina Broadcasters, the licensee of LPTV station WDYB, which had been included on the FCC’s initial list of auction-eligible stations but was later withdrawn by the FCC when WDYB’s auction eligibility was “called into question.” In documents filed with the court just hours before Friday’s decision, the FCC warned that, if the court ordered Videohouse’s participation in the auction on a provisional basis, the FCC would be forced to postpone the incentive auction start date in spite of the agency’s earlier pledge that the auction would proceed as scheduled with Latina as a provisional participant. Explaining, “the motion for stay pending review in this case stands in a very different posture,” as “Videohouse expressly seeks a stay of the auction pending review,” the FCC emphasized that Videohouse, unlike Latina, “has never been included in the data file” of eligible auction participants. As such, the FCC convinced the court that “inclusion of Videohouse in the auction, even provisionally, would substantially delay the auction by months” and would therefore “seriously injure the public interest.”

Although the reverse phase of the incentive auction will proceed as scheduled next Tuesday, an FCC spokesman acknowledged that the Latina order could delay an announcement  on spectrum clearing  targets by several weeks and could also induce the FCC to revise and update its timeline for other auction- related activities. Meanwhile, wireless and broadcast industry officials were quick to applaud the court’s decision. Competitive Carriers Association (CCA) President Steve Barry told reporters that he was “pleased with the court’s decision not to further delay the upcoming incentive auction” as “the FCC, CCA and competitive carriers have spent years devoting considerable time and resources to ensure a successful auction.”