LPTVs, FCC Square Off in Court

Attorneys for low-power TV station owner Mako Communications and LPTV option owner FAB Telemedia told a federal court May 5 that the Federal Communications Commission is trying to turn those stations' acknowledged secondary status when it comes to interference issues into a blanket license to displace them in the spectrum auction. The LPTV attorneys squared off against the FCC in oral arguments--their related challenges were heard separately one after the other--in the US Court of Appeals for the District of Columbia. Hearing the appeal was a three-judge panel comprising Judges Thomas Griffith, Sri Srinivasan and David Sentelle.

Mako's arguments were mostly on substance, while FAB's counsel spent most of his time arguing for why it had standing to bring the court challenge--it owns options to buy LPTV's from Word of God Fellowship, rather than owning the stations themselves. Word of God, which also has auction eligible stations. But both Mako and FAB argued that the FCC was violating the congressional directive in section b(5) of the spectrum auction legislation saying that "nothing in the incentive auction 'alter[s] the spectrum usage rights," of LPTV stations. Mako and FAB argue that the FCC did just that in requiring LPTV's to relinquish their spectrum if there is no place to repack them. FCC Attorney Jacob Lewis said that b(5) essentially prevented the FCC from being able to displace LPTV's without respect to whether or not they would interfere with full-power or Class A or unlicensed wireless spectrum users, given the new repack authority the FCC was also getting in the statute.