Arguing that low power television (LPTV) licensee Latina Broadcasters “has no entitlement, equitable or otherwise, to participate” in the incentive auction and that the FCC’s February 12 order declaring Latina ineligible to participate in the auction constitutes a reasonable exercise of the FCC’s discretionary authority, the FCC asked the D.C. Circuit Court last Friday to deny Latina’s motion to stay the March 29 incentive auction start date. 

Latina—one of several LPTV licensees that have filed legal challenges against the incentive auction rules—filed its request with the court on February 26, the day after the FCC rejected the company’s motion for stay of the incentive auction start date.  In the February 12 order, the FCC declared that Latina was not entitled to repacking protection and was therefore not eligible to bid in the incentive auction despite the agency’s earlier pronouncement that Latina was qualified to participate in the sale.  Defending itself against Latina’s accusation that the February 12 decision was arbitrary and capricious, the FCC explained in a reply brief that the Latina LPTV facility licensed under call sign WDYB “was initially included on provisional lists of over 2,200” LPTV stations that had applied to convert to Class A status before the statutory deadline of February 22, 2012.  The FCC advised the court, however, that when WDYB’s eligibility for discretionary protection “was called into question, the Commission reexamined the station’s regulatory history and found that, in fact, WDYB was not eligible to participate in the auction.”  Adding that Latina “does not contest the FCC’s determination that only licensees of stations that had a full power or Class A low power license or application for a license as of February 22, 2012 have a statutory right to participate in the incentive auction,” the FCC thus maintained that Latina’s appeal of the February 12 order and subsequent request for stay lack merit, emphasizing:  “there is no dispute that WDYB . . . did not have a Class A license or application for a license as of that date.” 

Meanwhile, in a joint motion to intervene, wireless association CTIA and the Competitive Carriers Association warned that a stay “would impose a variety of specific harms on wireless carriers and their customers,” as members of both organizations “have dedicated significant resources toward developing business plans and securing financing and other time-sensitive arrangements necessary to participate.”  These concerns were echoed in a joint amicus brief filed by broadcasters Ellis Communications, KDOC Licensee LLC, PTP Broadcasting and WRNN Licensee Company, which argued that a stay “would not only adversely affect plans put in place to participate in the auction but would keep the business operations of eligible broadcast television auction participants in an extended state of limbo.”  Spotlighting the potential number of broadcasters that could be impacted by a stay, the joint filers said that, while “the number of broadcasters filing applications in the auction has not been announced, amicus estimate at least several hundred and likely closer to a thousand have done so.”