Final Briefs Filed in Court Challenge of Incentive Auction Order

The FCC's decisions in the incentive auction order make it harder for broadcasters who choose not to sell their spectrum, NAB and Sinclair said in their final briefs filed in the U.S. Court of Appeals for the D.C. Circuit Tuesday. The order's use of TV Study, a 39-month construction deadline and other policies “steamroll” broadcasters in order to secure more spectrum for the auction, the broadcasters said. But NAB's and Sinclair's arguments that the Spectrum Act requires the FCC to use “outdated” OET-69 software are “unreasonable,” the FCC said in its own final brief. The older software can't perform the calculations “necessary to ensure that all stations that will remain on the air following the auction are assigned channels in accordance with the provisions of the Spectrum Act,” quickly enough, the FCC said. The commission's argument that changing the software still fulfills the Spectrum Act's directive not to change the “methodology” doesn't measure up, NAB and Sinclair said. With TVStudy, the commission also is changing the data inputs for terrain elevation and the station specific grids used by the older software, the broadcasters said. “There may be some sense” to the FCC’s argument against using archaic software, NAB said. “But there is sense, too, in Congress’s judgment that the certainty that comes with a familiar standard is critical to achieving a successful, voluntary incentive auction.” In a joint brief CCA, CEA and CTIA also attacked NAB for trying to force the commission to use “archaic software.” The Expanding Opportunities for Broadcaster's coalition also filed a final brief attacking Sinclair's challenges against the construction deadline. “The post-auction transition period reasonably balances the competing public interest objectives of preserving television service and expediting the introduction of new wireless service on reclaimed spectrum,” EOBC said.