NAB Files Court Challenge of FCC Incentive Auction Order

NAB filed a court challenge on the use of auction software TVStudy in the FCC incentive auction order. “Broadcasters are effectively left with an auction that benefits everyone else while harming only them,” said NAB Executive Vice President-Strategic Planning Rick Kaplan in a blog post (http://bit.ly/VA7RWM).

The petition, filed Monday in the U.S. Court of Appeals for the D.C. Circuit, asks the court to “hold unlawful, vacate, enjoin, and set aside the Commission’s adoption of TVStudy in the Order.” NAB is also challenging the FCC plan for reimbursing relocated broadcasters and efforts to maintain broadcaster coverage areas, Kaplan said. “The Order adopts a new methodology for calculating broadcasters’ coverage areas and populations served and fails to take reasonable steps to preserve broadcasters’ coverage areas,” said the petition.

The petition is not about delaying the auction, Kaplan blogged. “We have filed our petition at the outset of the 60-day filing window and we will be seeking expedited review.” Broadcast attorneys have said legal challenges to the auction are likely to lead to delays in the auction plans.

Delays could be exacerbated by additional challenges to the auction, said industry officials. Other entities may file petitions for reconsideration with the FCC, and when confronted with petitions against an item at both the court and commission levels, the agency has traditionally asked courts to delay until the agency-level challenges are resolved, said a broadcast attorney. The FCC might not do that with the auction timing at risk, the attorney said.

The NAB filing doesn’t have to lead to a court decision on the auction order, said an official who works for a company that may buy wireless spectrum in the auction. With a substantial amount of time between the filing and the auction, the FCC and NAB may be able to negotiate on the auction rules and prevent a court battle, the official said. NAB “would certainly welcome” an FCC adjustment of the auction outside of court action, but will pursue the matter in the courts until its concerns are resolved, Kaplan said. “We are confident that the Report and Order fulfills the mandates established by Congress on this complex matter,” emailed an FCC spokeswoman.

Using TVStudy instead of OET-69 software that has not been updated will reduce coverage areas for some broadcasters and disrupt “what Congress assumed to be a constant in the auction process” Kaplan said. The FCC has said TVStudy, as an updated version of the original software, doesn’t violate the Spectrum Act. By not treating the $1.75 billion fund for reimbursing broadcasters as a budget for the auction, the FCC hasn’t ensured that repacked broadcasters won’t have to pay for their relocation, Kaplan said. He said the auction order “does little to ensure that the Commission won’t repack beyond its financial means and that broadcasters won’t get stuck with the bill.”