Arguing that the FCC acted in an arbitrary and capricious manner in declaring it ineligible to participate in the incentive auction, Latina Broadcasters of Daytona Beach-the licensee of Class A low power television (LPTV) station WDYB-asked the D.C. Circuit Court last Friday to stay the commencement of the reverse phase of the incentive auction on March 29, or reinstate Latina as an auction participant on a provisional basis, pending court action on Latina's related appeal of the FCC's decision to deny reconsideration of the company's auction eligibility.
Latina-one of several LPTV licensees that are contesting the incentive auction rules in court-filed its request with the court as the FCC rejected the company's motion for stay of the incentive auction start date. In an order on reconsideration issued February 12, 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 eligible to participate in the sale. The FCC admitted in the order that it had erroneously included WDYB on its list of auction-eligible stations even though WDYB had not been granted Class A status or had an application pending to be accorded such status on or before February 22, 2012. (Under previously-enacted incentive auction rules, LPTV licensees must satisfy either of these two conditions to participate in the auction and have their operations protected during the post-auction channel repacking process.) Nevertheless, in denying Latina's request for stay, the FCC concluded last Thursday that Latina had failed to satisfy the agency's four-part test for a grant of a stay, which includes (1) the likelihood of its appeal succeeding on the merits, (2) proof of irreparable harm, (3) no evidence of harm to third parties, and (4) compliance with public interest standards.
As it asked the D.C. Circuit to rule on its request by March 11, Latina argued that the FCC's decision was discriminatory as evidenced by WDYB's exclusion from the auction while another similarly-situated station -KHTV in Los Angeles-had been included. Latina also accused the FCC of changing WDYB's eligibility without providing Latina with any notice or opportunity to comment on the agency's action. Citing the FCC's earlier declaration in the Incentive Auction Order "that a previously-eligible station that is subject to a license validity proceeding or downgrade order may participate, pending the results of an appeal," Latina declared: "in contrast to the imminent harm to Latina if the auction were to proceed absent WDYB, permitting one additional station to provisionally participate would cause no real disruption." The FCC is expected to state its case in a brief to be filed with the court today.