Be careful what you wish for, because you may get it. That may be what counsel for Videohouse is thinking just now, as the D.C. Circuit has granted their motion for an expedited briefing schedule. That’s good news for them, right? (Unclear on the background here? Take a look at this post and then come on back for the following update.)
Yes … but.
Yes, because it seems to reflect the court’s continued sympathy for their situation and their need to get the matter resolved as quickly as possible. And, to the extent that the FCC’s effort to force the Videohouse Three to seek a stay of the March 29 Incentive Auction deadline may have been (as the Videohouse Three suggested) merely an exercise in gamesmanship to avoid an accelerated briefing schedule, it didn’t work.
BUT the schedule announced by the court may pose some problems.
First, the court’s order – which was released in the early afternoon of February 23 – specifies that the Videohouse Three’s brief is due on February 25. Two days to prepare a merits brief to the D.C. Circuit? Yoicks! Of course, February 25 was the date they had initially asked for, but hey, that was back on February 17, when they still had, like, a whole week. With the court’s order, they’ve got less than two days.
Another problem: the order provides considerably more time for the FCC’s brief (until March 28) and the petitioners’ reply brief (until April 1) than they had asked for; it also indicates the oral argument won’t happen until sometime in May. That obviously means that the case won’t be resolved by the court until after the March 29 deadline. So to the extent the proposed schedule was designed to get the appeal wrapped up before March 29, that didn’t happen.
If we had to guess, we’d say that the next step will be the stay request that the FCC seemed to be asking for. While FCC counsel may have thought that they had a better chance of fighting off a motion for stay, they may be re-thinking that. Against the background of the grant of the petitioners’ motion for expedited briefing, the odds seem to be moving in favor of the Videohouse Three, notwithstanding the unusually high burden a party seeking a stay must meet. After all, it’s hard to imagine that the court would move this quickly and this favorably in response to the Videohouse Three’s emergency motion to hustle up the briefing, only to neuter that action by allowing the auction to go forward with the Videohouse Three on the outside looking in.
Obviously, there’s more to come. Stay tuned.