Does the FCC Want to Postpone the Incentive Auction?

Pretty much since the Federal Communications Commission 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 US 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.