FCC Tells Court to Reject Auction-Related Legal Challenge

The Federal Communications Commission has told the US Court of Appeals to reject a court challenge to its decision not to protect low-power TV (LPTV) stations from being displaced in the post-broadcast incentive auction repack of TV stations. The petition for the court to review that decision was filed by Free Access & Broadcast (FAB) Telemedia.

In its filing, the FCC said the court did not even have jurisdiction over the petition to review that decision because "the petition raises issues that were resolved in prior FCC orders and were not reopened in the orders on review," which were "measures to help displaced LPTV stations find new channels" rather than a revisit of the decision not to protect them. The FCC says it is settled that the statute creating the auction and repack did not mandate protecting LPTVs from displacement and the FCC, in its discretion, chose not to do so. The FCC pointed out that in an earlier case, the same court had concluded the commission "reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would ‘severely limit… recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.’” The FCC argues that FAB is trying to relitigate settled decisions through to succeeding decisions—on channel sharing and when wireless companies could commence operations on reclaimed TV channels.