Exactly three months after its adoption, the FCC’s Report and Order (R&O) setting the preliminary ground rules to cover the ambitious incentive auction and repacking of the TV band has now been published in the Federal Register. While this does not mean that the auction is imminent – the FCC is still hoping that it will happen next year – the Federal Register publication does set the effective date of some (but not all) of the rules adopted in the R&O. Perhaps more importantly, it starts the clock on a number of important deadlines.
First and foremost, the effective date of some of the new rules is October 14, 2014. But heads up, because that does not apply to §§1.2105(a)(2)(xii) and (c)(6); 1.2204(a), (c), (d)(3), and (d)(5); 1.2205(c) and (d); 1.2209; 2.1033(c)(19)(iii); 15.713(b)(2)(iv); 15.713(h)(10); 27.14(k) and (t)(6); 27.17(c); 27.19(b) and (c); 73.3700(b)(1)(i) through (v), (b)(2)(i) and (ii), (b)(3), (b)(4)(i) and (ii), and (b)(5); 73.3700(c); 73.3700(d); 73.3700(e)(2) through (6); 73.3700(f); 73.3700(g); 73.3700(h)(4) and (6); 74.602(h)(5)(ii) and (iii); and 74.802(b)(2). Those sections all involve “information collections” that must be run past the Office of Management and Budget (thanks to the Paperwork Reduction Act) before they can take effect.
Irrespective of the effective date, the R&O’s appearance in the Register establishes the dates for seeking reconsideration or judicial review.
Anyone who wants the FCC to reconsider any aspect of the R&O has until Monday, September 15, 2014 to get a petition for reconsideration on file.
Anyone who plans to head straight to court has until October 14, 2014 to file a petition for review with a federal court of appeals. But if you’re planning on seeking judicial review and you have your heart set on having the case heard by a particular circuit, your deadline is far sooner than that.
That’s because anyone preferring a particular circuit will have to comply with the rules governing the judicial lottery procedures. Those rules kick in when petitions for review of a single order are filed in multiple circuits. In that event, the determination of which circuit gets to hear the appeal is made by lottery conducted by the Judicial Panel on Multidistrict Litigation. In order to get your preferred circuit into the drum from which the lucky circuit will ultimately be drawn, you have to file your petition for review within 10 days of August 15 (i.e., by August 25) and, also by August 25, you have to have a paper copy of the petition bearing the “received” stamp of the court delivered to the General Counsel’s office at the FCC. (Here’s a helpful guide about all this prepared by the FCC’s Office of General Counsel.)
