FCC Likely To Try To Highlight Technical Aspects of Incentive Auction in Oral Argument Thursday
The FCC likely will try to highlight the most complicated aspects of the incentive auction as it defends its auction policies from challenges by NAB and Sinclair Broadcast Group during oral argument at the U.S. Court of Appeals for the D.C. Circuit Thursday, several broadcast attorneys told us. Emphasizing the technically challenging aspects of the auction makes it more likely that the three-judge panel hearing the case will defer to the FCC as an expert federal agency and uphold the auction order, the attorneys told us. Attorneys for NAB and Sinclair will in turn try to present their issues in as simple terms as possible, an attorney who represents broadcasters told us. The FCC, NAB and Sinclair all declined to comment on their strategies for the court proceeding.
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Though several broadcasters pointed to increased interest among large broadcast companies in the auction as softening NAB’s stance, they and NAB Executive Vice President Rick Kaplan said the increased interest in the auction was unlikely to affect the association’s argument before the court. “Our advocacy has expanded, not changed,” Kaplan said. While the NAB wants the reverse auction to succeed, its objections to the incentive auction mainly concern the protection of broadcasters' coverage areas, Kaplan said.Though many broadcasters had at one time supported a delay of the incentive auction, many now see it as an inevitability” and want it to happen expeditiously, Fletcher Heald broadcast attorney Frank Jazzo said.
Oral argument time Thursday will be divided among the many participants in the case, according to court documents. Though both sides get 20 minutes, NAB and Sinclair must share their allotted time as co-petitioners. NAB will get 14 minutes, and be represented in the case by Gibson Dunn attorney Miguel Estrada. Sinclair will get the remaining six minutes, and be represented by Pillsbury Winthrop attorney John Hane. Both NAB and Sinclair have argued that the FCC is bound by the Spectrum Act not to alter broadcaster coverage areas in the repacking and to use the OET-69 interference calculating software that existed at the time the act was passed rather than the updated TVStudy software the commission prefers. Separately, Sinclair has argued that the FCC can’t impose a 39-month deadline for stations to cease broadcasting on their old channels after the auction, and that only markets where more than one station enters the auction can satisfy the Spectrum Act’s requirements for a competitive auction. The FCC’s time to refute those arguments is similarly divided: Associate General Counsel Jacob Lewis will get 15 minutes, while Hogan Lovells attorney Dominic Perella will get five minutes to speak on behalf of pro-FCC intervenor CTIA.
Possible outcomes for the case could be full upholding of the FCC’s auction order, full remand of the order to the commission, or partial remand on one or more of the points raised by Sinclair and NAB, broadcast attorneys told us. Any remand scenario that requires the FCC to redo a significant portion of the auction planning could lead to a delay for the auction, several attorneys told us. “A loss, while not fatal to the auction, almost certainly would delay the timetable,” Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden said. EOBC filed in the case in opposition to Sinclair. CTIA cited prevention of delay as the reason for its involvement. “Our participation in this case is to ensure the broadcast incentive auction proceeds as quickly as possible so that wireless companies may continue to meet Americans’ demand for mobile connected lives,” said Scott Bergmann, CTIA vice president-regulatory affairs.
Kaplan said NAB would have liked to resolve the matter through out-of-court negotiation but was unable to do so. He said some discussions in that direction in recent weeks had fizzled out. Such negotiations would have been more successful if they could have taken place before the release of the auction order, he said.