With the FCC application filing deadline for the “reverse” phase of the broadcast incentive auction just two weeks away, the D.C. Circuit Court of Appeals denied a petition, filed by three Class A low power television (LPTV) licensees, that sought to force expedited FCC action on a related petition for reconsideration filed by the licensees. The petition challenges FCC rules that leave certain Class A LPTV operations unprotected during the channel repacking process and ineligible to participate in the auction, which is scheduled to commence on March 29.
Issued on December 30, the D.C. Circuit ruling responds to an emergency petition for a writ of mandamus, which was filed December 22 by The Videohouse, Inc., Fifth Enterprises LLC and WMTM LLC. At issue is the FCC’s decision last June to deny the licensees’ request for reconsideration of incentive auction rules that offer repacking protection to LPTV licensees that had been granted primary Class A status prior to February 22, 2012 or had applied for such status by that date. Notwithstanding the fact that they had requested and obtained Class A status after February 22, 2012, the licensees
complained in a second FCC petition filed in September that the agency’s treatment of out-of-core Class A stations “was based on inaccurate factual premises” and was “procedurally improper.” The second petition, which asks the FCC to enable the participation of affected Class A LPTV licensees in the reverse auction and “extend protection to them in the repacking process,” remains pending before the agency. In an emergency motion for a stay of the reverse auction filing window that was denied last month by the FCC’s Mass Media Bureau, the licensees warned that they would not only be “foreclosed from participating in the reverse auction” but would also risk the loss of “their existing spectrum rights, as they are likely to be displaced with little chance of securing a replacement channel following the post-auction repack.”
In hopes of spurring FCC action, the licensees asked the D.C. Circuit to require the agency to issue a decision on their pending petition for reconsideration no later than Monday, January 4. Concluding, however, that the licensees “have not shown the [FCC’s] delay to be so unreasonable as to warrant the extraordinary remedy of mandamus,” and citing FCC representations that a draft order addressing the licensees’ petition is already circulating among the FCC’s commissioners, the three-judge panel denied the requested relief, but voiced expectations that the FCC “will rule on the pending reconsideration promptly, so as to allow petitioners to seek judicial review with an opportunity for meaningful relief before the incentive auction commences on March 29.” Upon receiving news of the court’s ruling, a spokesman for the LPTV Spectrum Rights Coalition said, “we expect the FCC to act swiftly on this matter as the clock is ticking.”