Early Settlement in Incentive Auction Court Challenge Unlikely
An early settlement of NAB and Sinclair’s petition for review of the FCC incentive auction order seemed possible earlier in the proceeding but now seems unlikely, officials involved in the case said in interviews Tuesday, the day that NAB and Sinclair filed a joint reply brief in the case. The FCC has treated congressional instruction that it preserve broadcaster coverage areas as “an inconvenience to be minimized or ignored in the Commission’s myopic quest to transfer spectrum to wireless companies,” said NAB and Sinclair's joint brief in the U.S. Court of Appeals for the D.C. Circuit. “We are confident that our incentive auction rules fully comply with the statutory requirements to preserve the coverage area and population served of stations that elect to remain on the air after the auction,” an FCC spokesman told us.
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Oral argument is set for March 12, and it likely won’t be settled by then, said NAB Executive Vice President-Strategic Planning Rick Kaplan. “Unfortunately, it appears that we will be unable to settle the litigation,” he told us. NAB “worked very hard to reach a sensible solution” with “dedicated” FCC staff and an “engaged and helpful CTIA,” he said. Kaplan said a late start in coming to the negotiation table combined with the expedited schedule of the court proceeding “proved too difficult to overcome.” There was no “back and forth” with the commission over the broadcaster concerns until the auction order was released, Kaplan said. The FCC didn’t comment on possible settlement of the case.
Such a settlement would have been difficult to arrive at anyway, given the intense complication of the incentive auction, its time frame and the FCC processes required to alter the auction order, said a communications attorney connected with the case. Another attorney connected with the matter said NAB had been offering the FCC a compromise connected with the use of the TV Study software in the auctions since before the auction order was released.
CTIA hasn’t taken a settlement off the table as a possible result, emailed Vice President-Regulatory Affairs Scott Bergmann. “We continue to pursue any opportunities to remove or reduce any uncertainty around the incentive auction, and are hopeful the ongoing litigation can be resolved quickly by settlement or otherwise.”
Even without an early settlement, the court proceeding won’t delay the auction, Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden told us. With the oral argument in March, a decision on the case is likely to be handed down in May, Padden said. Expecting an FCC win -- EOBC filed an intervenor brief supporting the commission -- and consequently little change to the incentive auction order, Padden doesn’t think the matter threatens the auction timeline.
The auction order recasts the Spectrum Act as being “solely about reallocating as much spectrum as possible to wireless providers, while minimizing the FCC’s unambiguous statutory obligation to protect broadcasters,” said NAB and Sinclair. The commission’s use of TV Study “moves the Spectrum Act’s goalposts,” said the brief. FCC arguments that the more advanced software is required the auction should not receive judicial deference, NAB and Sinclair said. “A legislature says in a statute what it means and means in a statute what it says there.”