LPTV operator Latina Broadcasters of Daytona Beach has asked the FCC to either stay its Feb. 12 decision not to let the broadcaster participate in the incentive auction, or alternately delay the incentive auction, scheduled to launch March 29. It has given the FCC until tomorrow (Feb. 24) to make a decision, after which it says it will go to court to try and get reinstated or block the auction.
Latina was eligible to upgrade to Class A status (which would have made eligible for a potential multimillion dollar payout or channel protection in the repack if it did not win), but missed the deadline for upgrading according to the FCC, which declined its request that it be allowed to participate--the FCC had made an exception in at least one other case, but the commission said that was based on a a different set of facts.
In an emergency motion for a stay filed Feb. 22 with the FCC, Latina said the FCC was wrong to exclude it; that it would suffer irreparable harm without a stay; and that the FCC had discriminated against it by excluding its WDYB but making an exception for another station.
Latina said that given the short period between the FCC's Feb. 12 order denying its participation and the start of the auction, it would consider the petition denied if the FCC did not take any action by Feb. 24 and would then go to court to try and get into the auction.
The broadcaster said the FCC had indicated WDYB was eligible for the auction up until the Feb. 12 decision that it was not.
"There were no changes in the facts over these nine months to justify the FCC’s about-face," said Latina in its petition. "Moreover, no party had even asked the FCC to reconsider Latina’s participation."
"Absent the relief Latina is seeking, the auction will commence without Latina," it said. "If that were to occur, not only would Latina be denied the opportunity to participate, but its spectrum usage rights would be gravely endangered, as WDYB faces a severe risk of displacement with no guarantee of securing a replacement channel following the post-auction repack."
Latina filled out the auction paperwork by the deadline, and says it wants the FCC to provisionally reinstate WDJB's application, saying that was consistent with the commission's recognition elsewhere that stations challenging their auction eligibility should be allowed to participate pending results of their appeals.
"In the Incentive Auction Order," they said, "the FCC determined that a station that was at one time eligible to participate in the auction, but is subject to a license validity proceeding or downgrade order may participate in the auction, subject to the results of any appeal. The FCC reasoned that “this approach ensures that we do not unfairly deny reverse auction eligibility to a broadcaster that might prevail in its challenge.”5 Although WDYB is subject to reclassification of its auction status rather than a license validity proceeding or downgrade order, the effect is the same—removal of WDYB’s eligibility to participate in the auction and receive protection in the repack. Because the order reclassifying WDYB’s status is still subject to judicial review, removing WDYB from the auction now would be premature."