Representatives of the broadcast television industry that have asked the D.C. Circuit Court of Appeals to overturn FCC rules mandating unlicensed usage of the digital TV white space bands urged the court this week to reject an FCC request to hold their appeal in abeyance. According to those representatives, delayed consideration of the case could result in a flood of white space devices being deployed into the market that the court would be unable to retrieve if it rules ultimately in favor of the petitioners. In its motion for abeyance, the FCC told the court that a grant of its request would provide the agency with additional time to consider petitions for reconsideration of the white space rules that are now pending before the FCC. However, a key issue concerns the timing of two actions that the FCC has identified as prerequisites for the issuance of unlicensed white space devices: the establishment of a TV bands database and the testing and certification of devices. Pointing to the “significant” possibility that both of these steps “will be completed before the FCC issues its reconsideration decision,” the National Association of Broadcasters (NAB) and the Association for Maximum Service Television (AMST) warned the court: “if this case is held in abeyance, white space devices may well enter the market before the court considers the merits of this case.” The NAB and AMST further noted that the FCC “does not state that a reconsideration decision (let alone a decision by this court) is a precondition to the release of white space devices” into the market. As such, NAB and AMST cautioned: “if the court were thereafter to reverse or remand the FCC’s order, it would be too late to remedy harm caused by the unlicensed devices.” In the event the FCC’s request is granted, NAB and AMST said the court should require the FCC to submit reports “at least every 60 days regarding (1) the establishment of the TV bands database, (2) testing and certification of devices, and (3) resolution of the petitions for reconsideration.”