Sinclair Incentive Auction Challenge Broader Than NAB; May Not Be Expedited

Sinclair’s petition for review of the FCC incentive auction order (CD Sept 19 p12) raises a broader scope of issues than the NAB challenge (CD Aug 19 p1), and the company hasn’t decided if it will push for an expedited hearing of the case as did NAB and the FCC, Sinclair Vice President-Advanced Technology Mark Aitken told us Friday. The U.S. Court of Appeals for the D.C. Circuit issued an order Friday consolidating the two petitions and vacating the expedited briefing schedule requested by NAB and FCC.

Sinclair’s broader range of problems with the auction order might be harder to settle than NAB’s narrowly focused criticisms of the repacking and TVStudy software, said broadcast attorneys. Others said it was likely that because of the cases being consolidated, the court would still hear the case on an expedited basis. “It is our hope that Sinclair’s petition will result in only a brief delay” in the court proceeding, said Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden.

NAB was “fully aware” of Sinclair’s concerns before the association filed its appeal, said Aitken, who provided a declaration on the adverse effect of the auction on Sinclair included in the NAB petition. “We have decidedly different concerns,” Aitken said. NAB Executive Vice President-Strategic Planning Rick Kaplan said the association was given “a heads-up” that Sinclair was filing a petition. In previous court filings, NAB said it wasn’t expecting petitions in addition to its own.

Sinclair’s petition broadly points to the incentive auction order as exceeding FCC authority and violating the Spectrum Act and Administrative Procedure Act. Though more specifics of the challenge aren’t yet available, Aitken said the FCC order used an interpretation of Congress’s intention that “does not fit any plain English understanding” of the legislative language. Sinclair has raised concerns about the post-auction repacking’s effects on the broadcast industry, and pushed hard for rule changes allowing broadcasters to more flexibly use their spectrum (CD May 9 p16). “The FCC has had every opportunity to address these issues in various replies,” Aitken said. “The FCC has not addressed these issues.” The FCC did not comment.

NAB’s petition is focused on a narrow range of issues to increase the possibility of a quicker settlement, said broadcast attorneys not connected with the case. As the number of issues that need to be briefed and negotiated increases, it takes longer for a case to work itself though the system, said Fletcher Heald broadcast attorney Dan Kirkpatrick. Based on the aspects of the auction the FCC is still deciding, it’s likely to be delayed for reasons outside the court challenges, said another broadcast attorney. That would provide more time to resolve the Sinclair and NAB petitions more time, he said.

CTIA expects Sinclair to push for an expedited case as NAB and the FCC did, said CTIA Vice President-Regulatory Affairs Scott Bergmann. “We need to work collaboratively to keep to the FCC’s auction timetable.”