As the FCC plows ahead with plans to start its reverse auction process by requiring initial commitments by 6:00 p.m. (ET) on March 29, 2016, efforts by stations seeking a ticket into the reverse auction through Class A protection continue down at the D.C. Circuit. As we have reported, the Videohouse Three managed to get the briefing schedule in their merits appeal expedited, but not enough to guarantee them entrée to the auction. Whether they’ll be seeking a stay in the coming days remains to be seen.
Meanwhile, Latina Broadcasters of Dayton Beach, LLC – the licensee initially excluded from the auction, then included, then excluded again – has appealed the FCC’s February 12, 2016 decision excluding it. In connection with that appeal, Latina has asked the D.C. Circuit for a stay. And it has asked that the court rule on the stay request by March 11.
The court appears inclined to try to meet that deadline: within hours of the filing of Latina’s stay request on February 26, the court had issued, on its own motion, an order requiring (a) the FCC to respond by noon on March 4, and (b) Latina in turn to reply by 9:00 a.m. on March 7. While the court has given no indication of how it will eventually rule on the stay request, this scheduling order again seems to reflect the court’s awareness of the importance of the fast-approach March 29 deadline for auction participation.
Latina’s stay request presents the court with two alternatives. Latina’s first proposed stay would relate to the February 12 order excluding Latina from the auction. In Latina’s view, if the court were to stay the effectiveness of that order, then Latina could participate in the auction, subject to the caveat that, should its merits appeal of the February 12 order eventually be rejected, Latina would be removed from the auction (or denied whatever benefits it may have been awarded through the auction in the meantime). Should the court be inclined to provide that limited relief, the auction could still proceed as currently scheduled.
Latina’s alternative proposal would be to stop the auction in its tracks until Latina’s merits appeal is finally resolved.
(Latina also suggests that, if the court isn’t able to decide the stay matter by March 11, then the court should issue an “interim administrative stay” effectively staying either the February 12 order or the auction (or, possibly, both) to give the court more time to consider the matter.)
The fact that Latina has presented these alternative stay approaches complicates matters for the Videohouse Three. If the court were to stay the auction as a whole, of course, the Videohouse Three should be happy, as they would then be able to pursue their merits appeal in due course and, ideally, get a ruling one way or the other before the auction eventually happens. But if the court were to grant a stay limited to the February 12 exclusion of Latina from the auction, that wouldn’t appear to help the Videohouse Three much. In that case, they would presumably have to seek their own stay.
Things continue to happen down at the court. Check back here for updates.