LPTV Investors Ask DC Circ. To Rehear Auction Challenges

Share us on: By Michael Macagnone

Law360, Washington (August 15, 2016, 8:52 PM ET) — Low-power TV investors and a religious LPTV station urged the D.C. Circuit on Friday to reconsider tossing their challenge to the upcoming spectrum auction, saying the Federal Communications Commission has trampled the rights of LPTV license holders.

The petitioners urged either the original three-judge panel or the full court to rehear and possibly overturn the panel decision in June that rejected Word of God Fellowship Inc.’s challenge of the auction because the channel did not participate in the FCC proceedings below and Free Access & Broadcast Telemedia LLC’s challenge because owning option rights to LPTV stations did not give it the property interest necessary to sue.

Free Access, according to the petition, is left with no judicial recourse to challenge the repacking of spectrum in the FCC’s spectrum auction, which could take some LPTV stations off the air. The company argued that, while creditors have the option to protect their interests in bankruptcy and shareholders have other court protections to ensure their protection, option holders have no such recourse and should not be subject to the “shareholder rule,” which in this case bars owners of a company from challenging adverse agency action against the company itself.

The petition said that the Hobbs Act, the statute that gives federal courts jurisdiction over agency actions like the spectrum auction, should give Free Access standing and an opportunity to challenge the FCC’s actions in federal court.

“Its constitutional standing is uncontested (and unassailable). In holding that Free Access lacked prudential standing, the panel ignored Congress’ clear instruction that under the Hobbs Act, any ‘party aggrieved’ — irrespective of shareholder or option-holder status — may petition for review of FCC actions,” the petition said.

Friday’s petition also criticized the nixing of Word of God’s challenge, saying the channel should have been allowed to challenge the FCC’s plans on the basis of its participation in the [/companies/national-association-of-broadcasters]National Association of Broadcasters during FCC proceedings even though it did not participate separately. Requiring separate participation to retain standing undermines the purpose of trade associations and could create a mountain of duplicative filings in future rule-makings from companies preserving their standing, according to Word of God.

“It turns the Hobbs Act into a Hobson’s choice, forcing companies to either irrevocably delegate their judicial review rights to trade groups, or file needlessly redundant papers,” the petition said.

The petition urged the D.C. Circuit to reach beyond the jurisdictional decision it reached in June to address what the petitioners’ view as a violation of the Spectrum Act. It said the law requires that the agency preserve spectrum for LPTV stations, not “repack” it as the agency has interpreted, potentially pushing them off the air.

The panel heard oral argument in the case in early May. During the hearing, other parties including LPTV station owner Mako Communications LLC also slammed the repacking plan as making low-powered broadcasters secondary to full-power stations and wireless carriers, in violation of the Spectrum Act.

Representatives for the FCC declined to comment Monday. Counsel for the groups could not be immediately reached for comment.

Judges Thomas B. Griffith, David B. Sentelle and Sri Srinivasan sat on the panel for the D.C. Circuit.

Free Access and Word of God are represented by C. Boyden Gray, Adam Rabun Fast Gustafson, Jeffrey White and Derek S. Lyons of Boyden Gray & Associates PLLC and Glenn B. Manishin of ParadigmShift Law LLP.

The FCC is represented by William J. Baer, Robert J. Wiggers and Kristen C. Limarzi of the U.S. Department of Justice and in-house by Jacob M. Lewis, Jonathan B. Sallet, David M. Gossett and Thaila K. Sundaresan.

The case is Free Access & Broadcast Telemedia LLC et al. v. Federal Communications Commission et al., case number 15-1346, in the U.S. Court of Appeals for the District of Columbia Circuit.

–Additional reporting by Jimmy Hoover. Editing by Brian Baresch.

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Dear Fellow LPTV Broadcaster and Industry Leaders,

The auction has ended and most of us are still here.  While it was not only our hope but the hope of many others that the auction would not take place . . . it did, but it did not have the devastating effect that it might have had. 

The world after the auction looks different and amazingly so has a very bright future!

What does that future look like?  Not only the amazing possibilities of ATSC 3.0 but the landscape of a nation of people who are increasingly cutting their cable cords and looking for free, over the air, broadcasting content.

That’s why it’s more important than ever that you join the Advanced Television Broadcast Alliance.  Our board of directors have a combined 500+ years of experience which beginning with your membership we are going to start making more available to our members on an increasing basis.

Soon as an ATBA member, you will be eligible to start tapping into not only this brain trust through unique services available only to our members but regular news updates regarding our collective broadcast future.  We are exploring new ways to tap into information from Washington as well as important updates that will benefit you right there where you live.

The need for the ATBA has increased with the new opportunities that are becoming available for those of us who still know that the future of LPTV, Class A and Translators is bright!  Are you selling your station to local sponsors?  Are you maximizing your spectrum to the advantage that you truly can?  Are you struggling with FCC rules and regulations that you either don’t understand or can’t get explained?

The ATBA is developing a database of information to help you find the answers you need! 

In addition we are still working with the true decision makers in Washington.  Your ATBA has earned the respect and the ear of the true movers and shakers that continue to shape our collective broadcasting future.

So what can you do to get involved and begin to take advantage of these, and many other, benefits?  Join the ATBA today!  Your membership benefits will include:

  1. Members only access to hundreds of years of LPTV experience through our new “Brain Trust”
  2. Early entry to our annual NAB LPTV evening event with access to our special event guest(s)
  3. Exclusive digital content regarding real world information you need to know
  4. Eligibility for recognition for your hard work through our ATBA LPTV Awards
  5. Access to equipment manufacturers with discounts available especially for ATBA members!

To be honest you can’t afford not to be a member of the ATBA! 

We’re making it affordable because it’s a win – win!  When you join, you’re going to receive more than just the benefits listed above but also you’ll be aligning with hundreds of others who, like yourself, have a vested interest in the continued forward movement of free, over-the-air broadcasting.  It’s a win for your ATBA because we will increase our strength through numbers as we grow together.

So what’s the next step?  If you’re ready follow this link https://www.broadcastingalliance.org/join-us/ to sign up.  If you have more questions please don’t hesitate to call a member of the ATBA board of directors by calling this number (877) 214-4277.   You’ll get a rapid response!

Thanks for taking the time to read this note and for your ongoing passion for the future of communication in this great country.

Respectfully,

The Board of Directors – The Advanced Television Broadcast Alliance