FAB Oral Argument Focused on Jurisdiction, Mako
Differences between Free Access & Broadcast Telemedia’s current challenge of the incentive auction rules and a prior one from low-power TV broadcaster Mako Communications (see 1608300056) were a focus Tuesday of a three-judge panel at oral argument at the U.S. Court of Appeals for the D.C. Circuit. The panel included judges who previously sided with the FCC on the incentive auction in multiple cases. Broadcast attorneys didn’t expect FAB to be succeed.
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With the incentive auction complete, FAB Telemedia’s David Mallof didn’t say what he’d want the FCC to do for LPTV stations if the case is decided in FAB’s favor. ”It’s up to the FCC to clean up the mess,” he told us. Mallof also denied the auction process is complete, pointing to the repacking and possible challenges to the FCC transition plan. “It’s not over until it’s over,” he said. The FCC contingent at the hearing, which included former Incentive Auction Task Force Chairman Gary Epstein and his successor Jean Kiddoo, declined to comment.
Mako concerned whether the Spectrum Act prevented the FCC from leaving LPTV stations unprotected in the incentive auction, and was a victory for the FCC. In Tuesday’s oral argument, FCC Attorney Adviser William Scher argued the Mako decision covered all the arguments made by FAB. The LPTV group’s attorney Glenn Manishin of ParadigmShift Law said the two cases are distinct. Each attorney was given 10 minutes to argue, and the three-judge panel asked few questions, so arguments lasted just over 20 minutes. Scher argued FAB was challenging the 2014 incentive auction and decisions about protecting LPTV spectrum made in that order rather than the channel sharing and commence operations orders cited in the case. “Non-protection is not an issue in this case,” Manishin said, saying even if FAB’s challenges are seen as referring to the 2014 order, the court still has the authority to rule against the FCC.
Minutes into Manishin’s time, Judges Thomas Griffith and Sri Srinivasan interrupted to ask about FCC arguments that FAB‘s challenge should be tossed out because FAB didn’t participate in the notice and comment proceedings that preceded the commence operations and channel sharing orders. “Can you just focus our attention on how the challenges you raise survive the jurisdictional objections?” Srinivasan said. Though Manishin argued FAB’s participation in other proceedings connected to the auction fulfilled the participation argument, Griffith disagreed, saying the FAB case met the description of a case that would thus be jurisdictionally barred “to a T.” When Manishin disagreed, Srinivasan probed further. “Do you think if that language governs, you’re out of luck?” he asked. Manishin replied he didn't think so. Srinivasan and Griffith were on the Mako panel, and tossed a previous FAB challenge of the incentive auction for lacking standing.
Manishin argued that because the FCC commence operations order said the wireless buyers in the incentive auction have “exclusive” access to the spectrum bought in the auction, the orders amount to evicting LPTV from spectrum for reasons that aren’t related to interference. In Mako, the D.C. Circuit said the Spectrum Act barred the FCC from pushing a secondary station off its spectrum if it wasn’t interfering with a primary license holder. The FCC orders don’t cite interference as the reason, but instead exclusive access, Manishin said. Scher argued the phrase exclusive access was referring to protection from interference. “You’re wrapping up the concept of interference into the term ‘exclusive,’” Srinivasan said to Scher. “That, I think potentially squares things, whereas their view is that ‘exclusive’ means something other than interference.”