Broadcasters Ask D.C. Circuit to Keep Challenges to White Spaces Order on Hold

The NAB and the Association for Maximum Service TV asked the U.S. Court of Appeals for the District of Columbia Circuit to continue to hold in abeyance challenges to the FCC’s white spaces order. The groups were responding to a request by the court for the parties’ opinions about how the case should be handled as the commission considers petitions for reconsideration.

The filing Monday asked the court to maintain the status quo concerning the groups’ February 2009 challenge to the FCC’s 2008 white spaces order. ABC, the ABC TV Affiliates Association, CBS, the TV Network Affiliates Association, the Fox Entertainment Group, NBC Telemundo, NBC TV Affiliates, NBC Universal and the Walt Disney Co. joined the appeal. FCC spokesman Robert Kenny said the agency had no comment.

The NAB and MSTV said several reconsideration petitions are active and the court cases should be “held in abeyance pending” commission action. “The FCC should continue to file reports with the Court every 60 days on the status of the FCC’s consideration of the pending petitions for reconsideration,” they said. A supporter of the challenge said the petition “simply asks the court to maintain the status quo with respect to the court case until the FCC has completed the reconsideration process."

The FCC in September approved a follow-up white spaces order taking up petitions for reconsideration. In January, Motorola Solutions, the NCTA, Cellular South and the Wireless Internet Service Providers Association filed recon petitions on the September order. The NAB and MSTV did not.

The FCC was also expected to file a response. The Media Access project, as co-counsel to the Public Interest Spectrum Coalition, will join the FCC in asking that the case remain in abeyance during the reconsideration process, said MAP Senior Vice President Andrew Schwartzman.

Broadcasters seem to have changed their tone on the white spaces order, said Public Knowledge Legal Director Harold Feld. “This certainly demonstrates a dramatic shift from where these parties started in 2008, when they were insisting that white spaces technology would destroy broadcast television and wireless microphone use,” he told us. “Given that the majority of the newly filed reconsideration petitions do not bear on issues relevant to the challenges, the broadcasters and wireless microphone users could certainly have pressed the court to proceed rather than continue to hold the case in abeyance. What is unclear is what is behind the change. It may well be that given several years to consider the evidence, the parties are more willing to wait on further developments in the technology to see how significant the interference risk really is. … Essentially, this allows broadcasters to continue to preserve their right to challenge the rules, while allowing them to see whether white spaces will provide a shield against incentive auctions.”