FCC Asks D.C. Circuit to Expedite Incentive Auction Challenge Proceeding

The FCC wants NAB’s petition for review of the incentive auction order expedited, the agency told the U.S. Court of Appeals for the D.C. Circuit Thursday. It “would be in the public interest” to resolve NAB’s petition “as promptly as possible,” said the commission. The NAB filed an emergency motion Wednesday (CD Aug 28 p14) seeking a quick resolution. Though industry observers have told us they expect the case to be resolved through negotiations outside court (CD Aug 18 p6), it’s still in both the FCC’s and NAB’s interests to have the court proceeding go as quickly as possible, said Fletcher Heald broadcast attorney Frank Jazzo in an interview. He represents NAB members, but is not involved in the challenge of the auction order.

FCC cooperation with the NAB on expediting the case could be a good sign for a possible resolution, said Jazzo and other broadcast industry officials. Though several industry officials had said the NAB challenge was likely to mean delaying the auction, the FCC response makes that less likely, said Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden. “Now that the FCC has consented to the NAB’s motion for expedited treatment, it is clear that the speculation about delay of the auction was completely unfounded."

It would have been politically difficult for the FCC to do anything but encourage an expedited case, said several broadcast attorneys. “I wouldn’t read too much” into the FCC’s agreeing it wants the case hastened, said NAB Executive Vice President-Strategic Planning Rick Kaplan. The FCC needs to show legislators, possible wireless spectrum buyers and prospective auction participants that the auction will proceed, so dragging its feet in court wasn’t a realistic option, said Pillsbury Winthrop broadcast attorney Scott Flick. “They need to be seen to be moving quickly."

Though the NAB had asked the court for an expedited proceeding in its initial filing earlier this month, it waited 10 days to file the emergency motion to allow other possible challengers to file their own petitions, Kaplan said. Other challengers who filed petitions in other circuits within the first 10 days after the NAB would have been eligible to participate in a lottery to select the circuit where the matter would be decided, Kaplan said. Since no other challengers did so, the case is likely to stay in the D.C. Circuit, he said. Other petitions challenging the auction order can be filed until Oct. 14, and the FCC reserves the right to argue that they should be included in the proceeding, said the agency filing. NAB has said it doesn’t expect additional filings, though the low-power TV industry has indicated that it plans to challenge the order. Along with petitions to review, reconsideration petitions filed at the FCC are also possible, broadcast attorneys said.

The NAB emergency motion goes into more detail on the association’s complaints about the order, which involve the commission’s failing to protect stations’ population-served coverage areas, the use of updated TVStudy software that broadcasters say reduces coverage areas, and not protecting fill-in translators. Though the initial filing included language attacking the commission’s plans for the $1.75 billion fund for reimbursing repacked broadcasters, the emergency motion doesn’t address that issue. Kaplan said the motion concentrates on the arguments that NAB thinks are appropriate to be resolved through courts.

Under the TVStudy software, one of Nexstar’s stations would have “97.8 percent population loss -- essentially, the loss of nearly its entire population served” as compared with calculations made under the original OET-69 software, said CEO Perry Sook in a sworn declaration submitted with the NAB motion. Raycom and Sinclair executives submitted similar declarations, although none with as big a loss under TVStudy. Sinclair estimated in its declaration that it would spend over $1 million getting ready for the auction, money that would be lost if the auction has to be redone because of a court decision. The lost money is one of the reasons the court challenge should be expedited, the declarations said. Nexstar estimated its auctions preparation cost at $200,000 and Raycom at $500,000, the declarations said.