Latina Broadcasters—the licensee of low power television (LPTV) station WDYB in Daytona Beach, Florida—celebrated a legal victory yesterday, as the D.C. Circuit Court of Appeals ordered the FCC to allow Latina to participate provisionally in the March 29 incentive auction. Filed on February 26, Latina’s emergency motion sought a stay of the auction start date or Latina’s provisional reinstatement as an auction participant, pending court action on Latina’s related appeal of the FCC’s February 12 decision to deny reconsideration of the company’s auction eligibility. Despite having included WDYB on its initial list of auctioneligible stations, the FCC declared last month that Latina was not entitled to repacking protection and was therefore ineligible to participate in the incentive auction.
In a March 4 filing, the FCC told the court that WDYB had been included on the agency’s list of auction eligible stations on a provisional basis and that the FCC later withdrew WDYB from the list when the station’s eligibility for discretionary protection “was called into question.” Nevertheless, based on its review of the FCC’s incentive auction website, which revealed “the agency’s auction data files and other projections are based on the assumption that the petitioner’s station would be eligible to participate” in the incentive auction, the court proclaimed that Latina “has satisfied the stringent requirements for this injunctive relief.”
Meanwhile, on the eve of the Latina decision, the D.C. Circuit rejected similar motions for stay of the incentive auction start date filed by Mako Communications, Free Access & Broadcast Telemedia, and Word of God Fellowship, Inc. Each of these entities have appeals pending before the court seeking reversal of the FCC’s decision in the incentive auction order to deny secondary-status LPTV stations protection during the channel repacking process. (The court has yet to rule on one other request for stay of the incentive auction filed by another LPTV entity, The Videohouse.) Although the FCC declined comment on the Latina ruling, a Latina spokesman told reporters: “we’re very excited . . . [and] we believe that we should prevail consistent with our filings.”