Last week, the focus of the spectrum auction shifted from the mechanics of the band plan to the legal eagles circling the process, and ended with a big victory for the Federal Communications Commission.
The FCC settled the challenge leveled by LPTV owners Videohouse, Fifth Street Enterprises and WMTM, which sued over their exclusion from the auction.
It did not appear that the station owners got provisional participation in the auction in the settlement, which was approved by the court, but instead likely concluded it was better not to press their case and potentially delay the auction, given that they also own stations that are in the auction and eligible for big paydays.
An FCC source said the settlement would not have any impact on the May 31 start of the auction or its timeline, also suggesting the FCC did not have to accommodate the excluded stations. Oral argument had been scheduled for May 9 in the court.
Coincidentally, on the day the settlement was announced, FCC lawyers were squaring off in the same court against attorneys for LPTV station owner Mako Communications and LPTV option owner FAB Telemedia, which told the court that the FCC is trying to turn those stations’ acknowledged secondary status when it comes to interference issues into a blanket license to displace them in the auction.
If that challenge were upheld, and the FCC were forced to find new channels for all the LPTVs, it could double the number of stations the FCC would need to repack.
Mako’s arguments were mostly on substance, while FAB’s counsel spent most of his time arguing for the court challenge.
Mako and FAB both contended that the FCC was violating the congressional directive in section b(5) of the auction legislation, which says that “nothing in the incentive auction alter[s] the spectrum usage rights” of LPTV stations.
FCC sttorney Jacob Lewis said that b(5) essentially prevented the FCC from being able to displace LPTVs without respect to whether or not they would interfere with full-power, Class A or unlicensed wireless spectrum users, given the new repack authority the FCC was also getting in the statute.
As to the FCC being able to displace them for interference reasons, Lewis said the agency had that authority and nothing in the statute trumped it. mememe
