DC Circuit Rejects Free Access Auction Challenge

and channel sharing orders, but the FCC argued and the court ruled in an opinion released Tuesday that the policies FAB targeted actually stemmed from the 2014 incentive auction order. “The window for challenging the Auction Order shut 60 days after that order was entered, and it will stay shut unless cracked open again by the Commission itself,” said the majority opinion by Judge Thomas Griffith. Judges Sri Srinivasan and Karen Henderson were also on the panel. “This petition for review flies beak-first into that hard limit insofar as it aims to re-litigate the Auction Order’s procedures,” the opinion said. The auction order’s effects on low-power TV already were upheld by the court in the Mako case, Griffin said. Rejecting all the parts of FAB’s challenge that stemmed from the 2014 order, the court considered arguments against the other two orders but also found them wanting. FAB argued the FCC acted in an arbitrary fashion by not studying the effect of the auction on LPTV, but Griffin disagreed. Channel sharing “would help some LPTV stations by enabling them to survive the repacking process and save money by sharing costs,” Griffin said. “The Commission was surely right that letting some LPTV stations share channels after the auction would be better than offering them no assistance at all.” The FCC in 2014 “made decisions that threatened to drive petitioners off the air -- decisions that petitioners understandably tried to challenge,” Griffin said. “But the law does not leave them free to keep trying.” FAB didn’t comment.