The FCC denied the NAB’s petition of a stay, saying the NAB failed to support any of the four prongs it needed to induce the granting of the stay.
In requesting the stay, NAB wrote, “This case satisfies the requirements for a stay. NAB is likely to succeed on the merits because the Commission engaged in arbitrary and capricious decision-making by disregarding the competitive harm that is likely to result from the Order, rejecting an alternate proposal that would largely avoid those harms, and departing from provisions of the Bipartisan Campaign Reform Act (BCRA) of 2002. NAB’s members will suffer irreparable harm absent a stay because the Order compels television stations to post the prices for specific advertisements to a public website immediately after the sales occur. This will place NAB’s members at a disadvantage to non-broadcast competitors, who are not required to post rate information on the Internet. The balance of hardships and the public interest also favor a stay because the likely harm from requiring immediate posting of detailed price information about specific advertising sales outweighs the benefits of such a requirement.”
The FCC responded 7/12/12 that none of the four prongs were met, which include: (1) it is likely to prevail on the merits; (2) it will suffer irreparable harm if a stay is not granted; (3) other interested parties will not be harmed if the stay is granted; and (4) the public interest favors granting a stay.”
Broadcasters are merely being asked to do online what they already do at the station, said the FCC. In that regard, there is nothing new about the requirement other than storing the information online. FCC also said that offered no proof that television broadcasters will suffer “irreparable harm,” it said its own studies indicate that the expense projections of maintaining online files have been overblown, and that the public interest will be served by putting the information online, not by blocking that effort.
RBR-TVBR observation: All eyes now turn to the DC Circuit, where the Commission might very well be known by the abbreviation FACCC – the Federal Arbitrary & Capricious Communications Commission. It has been called arbitrary and capricious with mind-numbing regularity in that court over the years. NAB has three weeks to get a stay there. We’ll be watching closely to see if it succeeds.