Free Access & Broadcast Telemedia, LLC v. Federal Communications Commission
2017 U.S. App. LEXIS 13927
| D.C. Cir. | 2017Background
- The FCC adopted a 2014 Auction Order to repack broadcast TV spectrum and create guard bands so mobile broadband could use freed spectrum; that Order set the core procedures for displacement of lower-priority users.
- Low-Power Television (LPTV) stations have secondary status: they cannot cause harmful interference to primary services and may have to cease or modify operations if displaced.
- Petitioners (LPTV operators) challenged two 2015 FCC orders: the Commencing Operations Order (defining when a new licensee is "commencing operations") and the Channel-Sharing Order (allowing LPTV stations to share channels post-auction).
- Petitioners asserted the Commission had reduced LPTV rights by (1) enforcing displacement when a licensed user notifies it will commence operations; (2) permitting unlicensed use of guard bands while denying licensed LPTV use there; and (3) refusing to guarantee post-repack channel assignments for displaced LPTV stations.
- The court concluded the core rules petitioners attack were adopted in the 2014 Auction Order (previously upheld in Mako) and are time-barred from direct challenge; it therefore considered only novel challenges arising from the 2015 orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners may relitigate substantive Auction Order rules via challenges to later orders | Petitioners argued the 2015 orders effectively adopted or perpetuated unlawful Auction Order decisions and sought review | FCC argued the 2015 orders declined to revisit the Auction Order and so do not reopen time-barred issues | Held: Challenges to rules originating in the Auction Order are time-barred; the court will not review reopened/reconsideration refusals tied to a time-barred order |
| Whether the Channel-Sharing Order was arbitrary or unsupported by substantial evidence | Petitioners argued channel-sharing relief was speculative and lacked empirical support, so the Order was arbitrary and capricious | FCC argued channel-sharing was a modest, reasonable measure likely to help some LPTV stations and did not require precise quantification | Held: The Channel-Sharing Order was neither arbitrary nor unsupported; the Commission reasonably adopted modest measures to mitigate harms |
| Whether the Channel-Sharing Order violated the Regulatory Flexibility Act (RFA) | Petitioners claimed the FCC failed to prepare an adequate final regulatory flexibility analysis assessing impact on small businesses | FCC argued petitioners failed to preserve this claim before the Commission | Held: Court lacked jurisdiction to review the RFA claim because petitioners did not seek reconsideration at the FCC first |
| Whether timing/filing limits bar review (jurisdictional question) | Petitioners contended later orders should be considered despite the 60-day window for challenging the Auction Order | FCC relied on the 60-day deadline (and failure to seek reconsideration) to bar relitigation; court noted precedent treating the deadline as jurisdictional but acknowledged Supreme Court nuance | Held: The 60-day challenge window effectively bars fresh challenges to the Auction Order; court did not resolve whether the deadline is strictly jurisdictional but applied the time-bar rule here |
Key Cases Cited
- Mako Commc’ns, LLC v. FCC, 835 F.3d 146 (D.C. Cir. 2016) (upholding core Auction Order procedures governing repacking and displacement of LPTV stations)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action must not be arbitrary and must be supported by reasoned explanation)
- U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (jurisdictional requirement to seek reconsideration at FCC before judicial review of certain claims)
- Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817 (2013) (statutory filing deadlines are not jurisdictional absent clear congressional statement)