Earlier this week, NAB filed suit in Federal Court challenging aspects of the Commission’s May Incentive Auction Order. NAB’s lawsuit was not a surprise – NAB had made pretty clear that it was unhappy with how the Commission was proposing to implement elements of the Spectrum Act, particularly as related to statutory protections provided to broadcasters subject to repacking. NAB lobbied hard in the legislative process for protections on repacking so it is also not a surprise that it is continuing to vigorously pursue these issues on behalf of its members.
While the issues raised by NAB are significant and deserve careful consideration, we do not think this lawsuit will become a road block to further progress on the auction. An incentive auction, by definition, requires the FCC to bring together competing interests and strike a delicate balance between protecting incumbent rights and freeing up new spectrum allocations sufficient to attract bidder interest. This exercise raises complexities never before seen in an FCC auction and it is inevitable that there will be differences of opinion and occasional detours of process as we move forward.
NAB has now stated its case in a Petition that was filed on the first day of the appellate period and has sought expedited review. Even more significantly, NAB indicated in a blog that it was looking for a “mid-course correction” that addresses its concerns, surely a signal that NAB is willing to consider a reasonable compromise.
Compromise must continue to be the hallmark of the incentive auction proceeding. We have to date seen a healthy and productive amount of give and take between the FCC and industry on a range of auction issues, from the band plan to the auction framework to bidding restrictions. And we believe that the issues raised by NAB can similarly be resolved — and resolved quickly — in a manner that protects broadcasters consistent with the dictates of the statute while achieving the auction efficiencies that the FCC wants and needs to conduct a successful auction.