Any Broadcaster Court Challenge to Auction Order Seen Focusing on Coverage Area
If broadcasters challenge the TV incentive auction order in court, the likely focus of petitions for review will be the congressional directive to use “all reasonable efforts” to preserve stations’ coverage areas, said industry officials in interviews this week. NAB President Gordon Smith said the order (http://bit.ly/1oX6QVm) ignored that directive. Broadcast attorneys described the order that was approved at last month’s FCC meeting as putting policies that would have preserved station coverage secondary. Some in the industry already have slammed the order, even before its release June 2, as not giving stations enough time to get construction permits post-repacking (CD May 23 p2).
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The order treats any policy that would cause “a marginal reduction” in spectrum sold as a failure of the auction, rather than following the spirit of the congressional directive, said broadcast attorney Jack Goodman. “Congress didn’t say, ‘Do anything you can to preserve service as long as it doesn’t inconvenience [the auction] in any way.'” Broadcasters twice took the FCC to court over what’s perceived as a crackdown on TV-station resource-sharing deals by the Media Bureau and on an FCC order requiring some such arrangements be attributed under media ownership quotas.
Though the auction hasn’t happened yet, broadcasters won’t have trouble arguing in court that the spectrum order is eligible to be challenged, said Drinker Biddle broadcast attorney Howard Liberman. “It’s clearly a final decision.” The congressional directive to preserve station coverage areas was the primary reason broadcasters supported the auction act, said a broadcast attorney. If broadcasters perceive it as not being followed, court challenges are inevitable, the attorney said. “Broadcasters supported the bipartisan Spectrum Act precisely because Congress captured the proper balance between repurposing spectrum for mobile broadband while holding local TV stations harmless in the process,” said Smith in a news release. NAB had no comment for this story, nor did the FCC.
Although NAB filings have focused on the commission’s use of the TVStudy repacking software as the threat to coverage area, a perceived lack of opportunity for broadcasters to appeal or change channel assignment decisions is also a factor, attorneys told us. According to the order, broadcasters with a channel assignment that isn’t buildable can ask the Media Bureau to be reassigned to another channel if an open one is available. There aren’t likely to be many open channels after the repacking, especially in crowded markets, said engineer Don Everist of Cohen Dippell. New channel assignments could be problematic for a reason the commission may not anticipate, such as local tower height regulations, Goodman said. In that situation, a broadcaster that can’t find a substitute channel could be without recourse, he said. The bureau would give priority to stations in that situation, the order said.
By rejecting policies that would have been more favorable for broadcaster coverage areas, the FCC may have left the auction order vulnerable in court, said an industry lawyer. The order is likely to appear one-sided against broadcasters in a court challenge, making it more likely that it could be thrown out, the attorney said. If that happens, the whole auction could be tied up in a lengthy court battle, said the lawyer. Commissioner Ajit Pai voiced similar concerns that the order would “be for naught if a court postpones or invalidates the incentive auction having found these changes to be unlawful,” in a statement on his vote against the order (http://fcc.us/1q4SiDc). -- Monty Tayloe (mtayloe@warren-news.com)