FAB Auction Challenge 'Procedurally Barred,' FCC Tells Court
Free Access and Broadcast Telemedia's court challenge of FCC incentive auction rules is an attempt to "relitigate" low-power TV licensee Mako's rejected auction challenge (see 1608300056), the agency said in a reply brief filed in the U.S. Court of Appeals…
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for the D.C. Circuit Monday. Though FAB's challenge is against later-released aspects of the incentive auction plan, those orders don't "reopen the issue of whether LPTV stations should be protected" in the incentive auction, the commission said. Since the decision not to protect LPTV stations wasn't made in the orders FAB has challenged, the appeal should be rejected, the FCC said. The court also should reject constitutional arguments that the auction is an "undue taking" of LPTV spectrum, the FCC said. "It is well settled that broadcast stations, including LPTV stations, have no property right in the radio spectrum." The regulator also pushed back against arguments that its treatment of LPTV stations was arbitrary and capricious, arguing that the decision not to protect LPTV was already litigated during Mako. "This Court in Mako affirmed that decision as reasonable and consistent with the Spectrum Act," the FCC said. FAB's "last-ditch challenge" to that decision is "procedurally barred," it said.