Mako Communications, LLC v. Federal Communications Commission
2016 U.S. App. LEXIS 15975
| D.C. Cir. | 2016Background
- The Spectrum Act (2012) authorized the FCC to reallocate broadcast TV spectrum to mobile broadband via a reverse auction, repacking of retained broadcasters, and a forward auction.
- Low-Power Television (LPTV) stations hold secondary status historically: they must not cause interference to primary services and can be displaced by primary licensees.
- 2014 FCC rules implementing the Spectrum Act (the Order) did not afford LPTV stations protection during the repacking process; the FCC concluded the Act’s protections apply to primary services and Class A stations only.
- Petitioners (Mako Communications and Beach TV) representing LPTV interests challenged the FCC’s refusal to protect LPTV stations from displacement under 47 U.S.C. § 1452(b)(5), which prohibits altering LPTV spectrum usage rights.
- The FCC and the court considered both statutory text and agency deference (Chevron), and the FCC also denied procedural claims that displacement triggers Section 312 revocation protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1452(b)(5) unambiguously prohibits the FCC from allowing displacement of LPTV stations in the repacking process | §1452(b)(5) bars any change that would alter LPTV spectrum usage rights, so LPTVs must be protected from repacking displacement | §1452(b)(5) does not unambiguously prohibit displacement because LPTVs have historically been secondary and subject to displacement by primary services | The statute is not unambiguous; the FCC’s interpretation is reasonable and entitled to Chevron deference; petition denied |
| Whether LPTV stations were subordinate to wireless providers before the Spectrum Act | LPTV were not subordinated to wireless providers, so displacement now is an alteration | FCC and history show LPTV have long been secondary to wireless/primary services (e.g., 2004 Digital LPTV rules) | Court finds LPTV subordination to wireless predated the Act; no new alteration occurred |
| Whether the FCC’s refusal to protect LPTV stations is arbitrary or frustrates the Spectrum Act’s objectives | Protecting LPTV is feasible and required; failing to do so is arbitrary and capricious | Protecting LPTV would impose many constraints, preventing sufficient spectrum recovery for forward auction and frustrating the Act | Court rejects arbitrary-and-capricious claim: FCC reasonably prioritized spectrum recovery for auctions |
| Whether displacement of LPTV triggers Section 312 revocation procedural protections | Displacement effectively revokes licenses and thus requires Section 312/APA protections | Displacement is not a revocation; it merely requires vacating a channel and has long been permissible for secondary stations | Court accepts FCC’s view that displacement is not revocation under §312 and denies this procedural claim |
Key Cases Cited
- Nat’l Ass’n of Broad. v. FCC, 789 F.3d 165 (D.C. Cir. 2015) (upholding FCC rules for incentive auction and repacking; relevant precedent on protecting secondary stations)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial review of agency statutory interpretation)
- Northpoint Tech., Ltd. v. FCC, 412 F.3d 145 (D.C. Cir. 2005) (applying Chevron step-two reasonableness standard to FCC interpretations)
- Gen. Instrument Corp. v. FCC, 213 F.3d 724 (D.C. Cir. 2000) (standard for arbitrary-and-capricious review of FCC actions)
- Sec’y of the Interior v. California, 464 U.S. 312 (1984) (permitting courts to resolve consolidated claims when one petition confers jurisdiction)