FCC Issues Order Denying ACA’s Stay Request

On August 31, 2020, the Wireless Telecommunications Bureau (the “Bureau”) issued an Order denying America’s Cable Association’s (“ACA”) Request for Stay of the C-Band lump sum election deadline (GN Docket No. 18-122).  As a reminder, the Bureau did agree to extend the deadline to September 14, 2020 pursuant to a separate request.


In response to ACA’s Petition, first, the Bureau concluded that ACA had failed to demonstrate that it was likely to prevail on the merits of its claim.  In its petition, ACA made two principal arguments to demonstrate it was likely to succeed on the merits: (1) ACA argued that the Bureau had improperly excluded integrated receiver/decoder costs from the lump sum amount in conflict with the FCC’s intention for MVPD earth station operators to use the lump sum to transition to fiber networks; and (2) ACA argued that the Bureau’s process for determining the lump sum amount was arbitrary and capricious and that it violated the notice-and-comment requirements of the Administrative Procedures Act.  The Bureau concluded that exclusion of integrated receiver/decoder equipment costs was consistent with the FCC’s 3.7 GHz Report and Order because the record demonstrated that installation of this equipment may fall to MVPD earth station operations, but the cost of the equipment was likely to be associated with satellite operator’s transitions.  Additionally, the Bureau found that ACA had interpreted the FCC’s goals too broadly; the FCC did not intend for the lump sum amount to fully fund a transition to fiber.  The Bureau also rejected ACA’s arguments concerning the lump sum methodology, finding that the record and various published public notices in this matter demonstrated that the Bureau provided ample notice of the methodology the Bureau intended to use to calculate the lump sum amount.  The Bureau also found that there was adequate opportunity for notice and comment on the issue.


Second, the Bureau concluded that ACA had not demonstrated that its members would suffer irreparable harm, and any alleged harm was largely speculative and based on a misreading of the FCC’s underlying goals.


Third, the Bureau concluded that ACA had not demonstrated that other parties would not be harmed by a stay or that the public interest favors a stay.  The Bureau found that many satellite operators have already had to begin the transition process and they need to know which stations they are responsible for migrating and which will take the lump sum and migrate on their own.  Further, the Bureau concluded that programmers would also be harmed by a stay because they are relying on the operators adequately determining which stations they will be migrating.  Additionally, the Bureau concluded that the lump sum elections will be critical in determining whether a potential bidder decides to participate in Auction 107.


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