FCC Incentive Auction – Waiting on the Court

Posted on May 1st, 2015 by

A 3-judge panel of the DC Circuit Court held oral arguments in March on NAB’s and Sinclair’s challenge to the FCC’s Incentive Auction Report & Order.  Both sides were questioned on highly technical matters, including the OET-69 methodology and the FCC’s decision to change certain measuring tools using the 2010 census and protect only populated coverage areas for purposes of auction valuation and during the post-auction repack.

The judges did not signal when they might rule on the case.  The NAB’s request for expedited hearing does not dictate a faster decision from the DC Circuit.  So it could be soon, or it could be later.  And remember, the challengers will have appeal rights, too, with the first step being a request for the case to be heard by all the judges of the DC Circuit, and the next step being a challenge to the U.S. Supreme Court.

Much will turn on the scope and details of the DC Circuit’s decision.  If the FCC loses, software would have to be re-written which could delay the planned early 2016 auction target.  If they prevail, but NAB or Sinclair appeals, the FCC will have to make a very difficult decision as to whether to proceed with auction plans or wait for the appeal outcome.