FCC Wins TV Incentive Auction Litigation, Issues Flurry of Decisions

Posted on June 30th, 2015 by

You’ve seen the headlines. The last 30 days has been a whirlwind of news and developments for the TV Incentive Auction. First, the DC Circuit ruled in favor of the FCC in the litigation brought by NAB and Sinclair over the methodology for calculating coverage areas. That prompted a statement from FCC Chairman, Tom Wheeler, that contained the most specific timeframe yet for the auction – the first quarter of 2016.

The FCC then went into hyper-mode, issuing a flurry of decisions, including loosening up its proposed channel sharing rules in its first reconsideration of an earlier order, announcing the pre-auction deadline for eligible stations to certify their technical facilities, and a 93-page second reconsideration order of its original incentive auction order that rejected several requests for the FCC to tweak its auction protection and procedural rules.

You’ll have time later to review the larger orders, but full power and Class A stations must devote their immediate attention to the pre-auction certification notice. The notice included a list of all stations and their eligible facilities for purposes of the auction. Stations have until July 9, 2015 to prepare and file Form 2100, Schedule 381, certifying their facilities.

To file the form, stations must first review their license and all FCC technical databases (CDBS, LMS, ASR, etc), and then certify as to their accuracy. If inaccurate due to an FCC error, an explanatory exhibit is required. If a station is operating at parameters different than those listed, it must tell the FCC, file an application for a construction permit to obtain authority for its facilities, and file for special temporary authority to continue its present operations. In addition, the schedule 381 seeks information about station antenna type, mounting, and antenna structure details. The schedule must be filed in the FCC’s new LMS filing system.

What’s next? Among other things, the FCC has to issue an order on its auction procedures, including the mechanics of participation and critical issues like pricing. The rumor mill says that the FCC is going to jettison its original plan to use dynamic reserve pricing, which would have artificially lowered prices for station spectrum.

The other thing that is almost assured is more litigation. This time, LPTV stations (and perhaps others) plan to sue the FCC for its interpretation of the auction statute that made LPTV stations ineligible for the auction and unprotected/unreimbursed in the post-auction repacking of TV channels. Whether that lawsuit delays the auction is an unknown at this point; much will turn on the scope of that as-yet unfiled lawsuit.