Publicly, the Commission appears determined to proceed full speed ahead, but a couple of FCC pleadings to the D.C. Circuit suggest otherwise.

calendar-question mark-1Pretty much since the FCC set out on its headlong race to design and implement the upcoming Incentive Auction, one of the Prime Directives appears to have been to get the thing done as quickly as possible. Initially mapped out to kick off sometime toward the end of 2015, it was then pushed off to the first quarter of 2016. And there the target date has remained, with deadlines for reverse and forward auction applications due by January 12 and February 10, 2016, respectively, and final elections for participating in the reverse auction due by March 29.

So it may come as a surprise to many that, in two pleadings recently filed with the U.S. Court of Appeals for the District of Columbia Circuit, counsel for the FCC has created the impression that the court may have to stay the auction. While the Commission will doubtless deny that it has been angling for a stay, the circumstances in which its pleadings were filed and the positions articulated in them suggest otherwise.

To lay this out, we’re going to have to crawl into one of the more esoteric corners of appellate law: mandamus. But stick with us – we’ll try not to make it too painful. (And please bear in mind that this is totally a glimpse of mandamus from the 30,000-foot level, sans much detail or nuance. Don’t try this at home.)

What is mandamus anyway?
Normally, the federal courts of appeals are available only to review an agency’s decisions. Unless and until the FCC has released a decision in a matter, it’s premature to try to bring the court in. But there exists a special – technically, it’s called an “extraordinary” – writ that you can ask for in very limited circumstances. Most often, those circumstances involve “unreasonable delay” by the agency, but they can also include situations where the agency (a) has failed to take some ministerial action which it is required to take or (b) has taken some action that the law plainly prohibits it from taking. A party asking the court for a writ of mandamus is effectively asking the court to step in and make the agency do something, the general goal being to force the agency to issue a decision that can then be appealed.

Courts are notoriously reluctant to issue such writs. Federal judges are loathe to impose their will on an agency’s control of its own docket, reasoning that an agency generally has a broad range of matters pending before it, and the agency should be permitted to set its own priorities for dealing with those matters.

But when an agency has delayed too long, and a party’s interests are, as a result, being severely and adversely affected, the court may step in. And even if a party seeking a writ of mandamus is eventually denied the writ, the fact that the FCC may be forced to explain its delay to the court can have a salutary effect on the complaining party’s situation: in order to deflect any judicial concern that maybe, just maybe, the Commission is not entirely in the right, occasionally the Commission will, in responding to a request for the writ, commit to getting the long-awaited decision out within a particular time frame. In the face of such a commitment, the court will usually dismiss the mandamus petition, but the petitioner will still be in a better position for having sought the writ in the first place, because it now has in hand the commitment, made by the FCC to the court, that the FCC will be cranking out a decision reasonably promptly.

Bear in mind that even getting to the point where the FCC is required to respond to a mandamus petition isn’t easy. Because of the extraordinary nature of the writ, an agency is not required to respond to such a petition until the court has reviewed the petition and determined that a response is called for. In other words, mandamus efforts can, and often are, rejected without the FCC filing any response at all. Indeed, the mere fact that the court does order such a response can be viewed as a very significant victory for the mandamus petitioner.

Which brings us to the case of the Videohouse Three.

The Videohouse Three
As you may recall, while the Incentive Auction will eventually involve a repack of the entire portion of the spectrum used for broadcast television, the Spectrum Act afforded post-repack protection only for full-power TV stations and LPTV stations that had been accorded primary status as Class A licensees. Because of that latter category – and because lack of post-repack protection threatens a station’s existence – it is of overriding importance to many stations that their status as Class A licensees be confirmed.

The trouble is that the road from mere LPTV license status to Class A status has been complicated and frustrating for a number of stations. In its June, 2014 order finalizing (for the most part) many of the nitty-gritty details of the Incentive Auction process, the Commission announced certain standards by which it would determine whether a station claiming protected Class A status would be given that status. And it indicated some willingness to accord such status even if a station did not precisely meet the announced criteria.

But when it came to most stations that fell short of the specified standards, the Commission refused to deem them protected. “Approximately 100” such stations existed, according to the FCC, and giving them post-repack protection would have a “significant detrimental impact on repacking flexibility.” However, one such station – KHTV-CD – was given the coveted protection.

Three would-be Class A licensees that didn’t make the cut sought reconsideration, arguing that they, too, should be entitled to protection. Those licensees were The Videohouse, Inc., Abacus Television (the predecessor in interest to Fifth Street Enterprises, LLC) and Latina Broadcasters of Daytona Beach, LLC. In June, 2015, the Commission rejected those three petitions for reconsideration. But even though it didn’t seem inclined to let those three licensees in, the Commission nevertheless expanded the universe of would-be Class A licensees entitled to protection, as a result of which a small number of additional stations gained protected status. (Irony Alert: Unlike Videohouse, Abacus and Latina, none of those newly-protected stations had themselves sought reconsideration.)

Curiously, though, when the formal list of protected (and, therefore, auction-eligible) stations was released two weeks later, Latina’s station was, without explanation, included, allowing its station to join the protected ranks with KHTV-CD.

Back in for reconsideration went Videohouse and Fifth Street in September, 2015, joined this time by WMTM, LLC and KMYA, LLC. A month later, the Commission announced the deadlines for reverse auction applications – December 18 (later pushed back to January 12) – with final reverse auction participation elections due March 29. Obviously, Videohouse et al. needed to have their petition for reconsideration acted on quickly if they wanted to participate in the auction. In their view, they needed to be declared eligible for the auction in time to file applications by January 12.

By December 22, however, with the application deadline less than three weeks away, the FCC had done nothing. So Videohouse, Fifth Street and WMTM (we’ve dubbed them the “Videohouse Three” for the sake of convenience) asked the D.C. Circuit to issue a writ of mandamus compelling the Commission to rule on their pending reconsideration petition no later than January 4, 2016, which (in theory, at least) would give them time to file their applications – if the FCC were to deem them eligible – or, if not, to get an appeal filed.

On December 23 – the day after the petition walked in the door – the court ordered the FCC to respond no later than December 28, the Monday after the three-day Christmas weekend.

Now if you were paying attention in our quick review of mandamus law, above, you should know that getting such an order at all is pretty remarkable, getting it essentially overnight even more so. To many observers, such a quick and favorable order suggests that the court sees at least some merit in the petitioners’ arguments.

The FCC’s Response to Mandamus
The FCC’s answer is where things started to get interesting.

As is customary when the FCC responds in a mandamus proceeding, its answer emphasized the extraordinary nature of the writ and generally pooh-poohed the Videohouse Three’s various claims. To do that, though, the Commission had to ignore at least one of its own prior admonitions. While the petitioners argued that the deadline for filing reverse auction applications marked their Absolute Last Chance to get themselves into the auction, the Commission said, au contraire,

[i]f either the Commission or the Court rules before March 29 that petitioners are eligible to participate in the reverse auction, the Commission will have the ability to ensure that petitioners “have an opportunity to submit an application to participate in the reverse auction” before the agency commences the auction.

OK, good to know – especially since the Commission had not made that clear previously. In fact, it had said pretty much the opposite: “Each licensee seeking to relinquish spectrum usage rights in Auction 1001 must file an auction application” by the January 12 deadline. (We added those emphases.)

The FCC’s response then went on to say that

[r]egardless of when the agency acts on the reconsideration petition, petitioners will have an adequate opportunity to petition this Court for any appropriate relief concerning their eligibility to participate in the reverse auction and to receive repacking protection…

And that, according to the Commission, is because

[e]ven assuming that the FCC does not issue a reconsideration order before the filing window for the reverse auction closes on January 12, 2016, petitioners remain free to petition the Court for a stay of the auction

(Again, those are our emphases.)

So in answering the mandamus petition, the Commission reversed its earlier admonition that eligible applicants had to file by the January 12 deadline to maintain their eligibility. And it clearly suggested to the petitioners that, in order to protect their interests, they might want to consider filing for a stay.

Two days later – on December 30 – the court issued an order dismissing the mandamus petition. Again, if you were paying attention above, you should be thinking that dismissal may not be a bad thing, depending on what the court said. And sure enough, even though the court technically tossed the mandamus petition, in doing so it included this caveat:

Based on the agency’s representations, … the Court expects the Commission to rule on the pending reconsideration petition promptly, so as to allow petitioners to seek judicial review with an opportunity for meaningful relief before the incentive auction commences on March 29, 2016.

In other words, the court wasn’t going to specify a date by which the pending petition for reconsideration would have to be resolved, but it did make clear that that would have to happen soon enough to let the Videohouse Three get to court for “meaningful relief” before March 29. In other words, the Videohouse Three pretty much got what they had been asking for.

Back to the Commission
In its response to the court, the Commission also indicated that a draft order resolving the petitions for reconsideration was already circulating around the Eighth Floor. (This is another standard FCC mandamus response – an effort to convince the court that extraordinary judicial intervention isn’t necessary because the agency’s already close to getting the job done.) So you might think that, given the urgency apparent in the court’s order, the FCC would have finished up its work tout de suite, to make good on its tacit assurance to the court that the reconsideration order would likely be out shortly.

And that’s exactly what happened … if you view six weeks to be “shortly”. The FCC’s reconsideration order didn’t come out until February 12, six weeks after the court’s order and less than seven weeks before the March 29 deadline. In its order, the FCC again rejected the Videohouse Three’s claims to eligibility. But it handed them a present by deciding that, contrary to what it had concluded in June, 2015, Latina should not be deemed eligible – a re-reversal that seems to underscore the inherent arbitrariness of the FCC’s approach here. This triggered a couple of strong dissents from Commissioners Pai and O’Rielly, both of whom gave the Videohouse Three plenty of arguments with which to challenge the decision (as if the Videohouse Three needed the help).

Back to Court
Back to court went the Videohouse Three, this time with a petition seeking review of the various Incentive Auction orders, including the February 12, 2016 decision. And, given the fast-approaching March 29 deadline, they filed a separate motion asking the court to adopt an expedited briefing schedule that would wrap up by March 7; they also offered to forgo oral argument, if that would help move things along. Their goal, obviously, was to get a decision in advance of the March 29 deadline and thereby avoid the irreparable injury that would befall them should they miss that deadline.

The Commission opposed that motion, essentially saying “March 7???? That’s crazy talk!” Such “breakneck speed” wouldn’t provide the FCC “adequate time to present [its] arguments” and would “strain [its] resources”. (Truth be told, the Commission said that the same concerns would apply to the Videohouse Three – but since the Videohouse Three had themselves proposed the expedited schedule, they presumably don’t share the FCC’s concerns.) In its opposition, the Commission also acknowledged that “[n]ormally, the timeframe for … expedited consideration [by the D.C. Circuit] of a petition for review is measured in months”, indicating that even the FCC recognizes that completion of judicial review is unlikely to occur in the next seven weeks (i.e., before the March 29 deadline).

The FCC went further. In its view,

the traditional vehicle for seeking relief [to avoid irreparable harm] is a stay pending judicial review. Petitioners have not requested such relief here.

Because of these considerations, according to the FCC, the court should not adopt the expedited briefing schedule proposed by the Videohouse Three.

For the time being, the Videohouse Three are holding their ground. In a reply to the FCC’s opposition, they speculate that the FCC’s seeming preference to have them file for a stay (as opposed to an expedited briefing schedule) is a devious tactic to avoid judicial review. Since the standards that must be met by a party seeking a stay are (at least in the view of the Videohouse Three) more rigorous than the standards to be met to get expedited briefing, the Videohouse Three suspect that the FCC is hoping that, by forcing them (and the court) to engage in a “stay” analysis, the FCC might be able to prevail in that analysis. And, without a stay, the auction would come and go with the Videohouse Three on the outside looking in. Sure, they might continue to prosecute their appeal, but to what end? The likelihood of unwinding the completed auction is essentially nil.

(While it is true that the standards to get a stay are difficult to satisfy, it’s not clear that they’re necessarily higher than what would be needed to get the court to approve the proposed expedited schedule, which is ambitious, to say the least. And the court has already declined to expedite briefing in a couple of other appeals brought by LPTV interests relative to the Incentive Auction, so we know that getting such a schedule is not a sure thing.)

The Videohouse Three’s speculation about the FCC’s litigation strategy may be correct, or not. But it seems that the FCC is playing with fire here.

After all, the FCC has clearly indicated that, if the Videohouse Three aren’t in the auction by March 29, they’re not going to be; it has assured the court that the Videohouse Three “will have an adequate opportunity to petition this Court for any appropriate relief concerning their eligibility to participate in the reverse auction”; it has acknowledged that under normal circumstances, the court won’t be acting by March 29; and it has condescendingly counseled the petitioners and the court – not once, but twice – that the Videohouse Three should be asking for a stay. And let’s not forget that, in dismissing the mandamus petition, the court seemed to be pretty clear that it thinks the Videohouse Three are entitled to – how did the court say it? Oh yes – “judicial review with an opportunity for meaningful relief before the incentive auction commences on March 29, 2016”, an expectation “[b]ased on the [FCC’s] representations”.

Again, we’re pretty sure that the Commission won’t admit that they’re fishing for a stay. And maybe they’re not. But given all these circumstances, we’re hard pressed to understand how the FCC hasn’t itself laid the groundwork for a stay.

It may be time to get going with your office pool as to whether a stay is going to happen and, if so, when the Incentive Auction will eventually start.

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