More Incentive Auction News: Last LPTV Request for Stay Denied, Forward Auction Applicants Revealed, Comments Requested on Channel Sharing and Ownership Waivers

Late Friday, the US Court of Appeals denied the last pending request for a stay of the incentive auction by LPTV applicants arguing that they should have been classified as Class A stations and included in the “reverse” auction where they can potentially be compensated by the FCC for the surrender of their spectrum.  As we wrote Friday, the FCC was ordered to include one of the licensees in the auction on a provisional basis, but last night’s order extended no such relief to the last applicant – denying the Stay request with no comment other than a statement that the applicant had not met the stringent standards required for the grant of a stay – standards which include the likelihood of success on the merits of the underlying appeal.  This would seem to clear the legal way for the incentive auction to proceed.

The other major question for all auction participants has always been whether the auction will be a success.  As we wrote back when the legislation authorizing the auction was first adopted, the entire incentive auction is premised on the actions of two distinct groups – (1) TV stations willing to give up their spectrum in exchange for significant cash payments and (2) wireless companies willing to buy that spectrum for a sufficient amount of money to cover the buy-out costs of the TV stations and other associated auction expenses.  Yesterday, the FCC released a public notice containing the names of 104 prospective bidders in the forward auction – including 3 of the 4 largest wireless companies (only Sprint appears to be missing) and a number of other companies – some recognizable, some not (the list of accepted applicants is here, the list of those who need to supply some additional information before their application is deemed complete is here).  While full details of the ownership of these bidders is not yet available on the FCC website, it is expected to be available for review early in the week.

Unlike in the reverse auction, where the TV stations willing to surrender their spectrum are kept secret throughout the auction process, with only the bidders who are successful in surrendering their spectrum being revealed in the near term (when the auction finally closes), the forward auction is run much like any standard FCC auction, where the bidders will be available as will information about bidding on a round-by-round basis.  The release of the bidders’ names will now set off a flurry of speculation as to how much they will be willing to bid, as the amount of money raised in the forward auction will dictate how much of the television spectrum will be cleared for wireless uses.

In the final auction news from yesterday, the FCC released a Public Notice stating that it was opening a 30-day public comment period on a petition filed by a TV owner asking the FCC to make clear the criteria that it will use to grant multiple ownership waivers to TV stations entering into channel sharing agreements that create new ownership issues.  The petitioner seems to be arguing that, without standards for addressing waivers, some channel sharing parties might not know whether or not to move forward in the incentive auction.  Yet it would seem that this petition would have limited applicability (in fact the petitioner itself notes that there may well be no one who is requesting such a waiver), as the Commission made clear that stations who have already filed channel sharing agreements with the FCC in their initial applications to participate in the auction back in January will be judged for multiple ownership compliance purposes by the number of stations in the market in January, not by any lesser number of TV stations that may remain post-auction.  Unless a station is changing markets through a channel sharing arrangement, or considering entry into a post-auction channel sharing agreement which will be judged for multiple ownership compliance on the post-auction number of stations, it would seem that few stations will care about the outcome of this issue.

So the auction marches on – with TV stations needing to make their decisions by March 29 as to whether they will commit to playing in that auction.