National Ass'n of Broadcasters v. Federal Communications Commission
416 U.S. App. D.C. 20
| D.C. Cir. | 2015Background
- Congress enacted the Spectrum Act (Title VI, Middle Class Tax Relief and Job Creation Act of 2012) authorizing the FCC to run incentive auctions to repurpose broadcast TV spectrum for mobile broadband via a reverse auction (broadcasters relinquish rights), a repacking of remaining broadcasters into a smaller band, and a forward auction (sell recovered spectrum).
- The FCC adopted comprehensive rules (2014 Order) and a Declaratory Ruling describing how it would implement the reverse auction, repacking, and protections to “preserve, as of February 22, 2012, the coverage area and population served” using the methodology in OET Bulletin No. 69 (Longley-Rice model).
- The FCC announced use of an updated software tool (TVStudy) and updated inputs (2010 Census, new terrain database, actual antenna tilt, finer coordinates) to implement OET-69 for the auction/repacking.
- Broadcaster petitioners (NAB, Sinclair) sought review in the D.C. Circuit, arguing the FCC: (a) misread the statutory instruction to use OET-69 (they say it required using the specific software/inputs in use on Feb 22, 2012); (b) violated notice-and-comment; and (c) acted arbitrarily regarding terrain loss, unpopulated areas, and protection of fill-in translators. Sinclair raised separate challenges to the 39-month transition (go-dark) deadline and the FCC’s reading of the statute requiring “at least two competing licensees participate in the reverse auction.”
- The D.C. Circuit consolidated petitions, expedited briefing, and denied the petitions, sustaining the FCC’s rules and interpretations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Spectrum Act’s reference to "methodology described in OET-69" compelled use of the specific software and data that would have been used on Feb 22, 2012 | Petitioners: "methodology" means the fixed software and inputs in use on Feb 22, 2012; FCC may not use TVStudy or 2010 Census | FCC: "methodology" means the procedures (Longley-Rice contour and interference algorithm); software/inputs are implementation tools and can be improved | Court: statute ambiguous; FCC reasonably interpreted methodology to allow updated software/inputs (Chevron step 2) and did not act arbitrarily |
| Whether use of OET’s Federal Register notice (TVStudy PN) satisfied notice-and-comment (or whether OET-only notice was fatal) | Petitioners: OET (staff) notice, not a full Commission proposal, violated APA notice-and-comment (Sprint precedent) | FCC: OET published in Federal Register as FCC proposed rule; issues were clear; commenters (including NAB) participated and were heard | Court: any procedural infirmity was harmless; notice made the issue "crystal clear" and petitioners were not prejudiced |
| Whether the FCC failed to make "all reasonable efforts" to preserve "population served" by allowing terrain loss on reassigned channels | Petitioners: terrain loss can reduce actual viewers and FCC must prevent it | FCC: terrain loss is physically unavoidable sometimes; preserving contours and allowing reasonable power/antenna adjustments is sufficient; protecting against all terrain loss would hamper repacking efficiency | Court: FCC reasonably balanced preservation mandate against auction goals; accepting some terrain loss was within agency discretion |
| Whether FCC must preserve coverage for unpopulated areas within a contour | Petitioners: coverage area preservation requires protecting unpopulated areas too | FCC: replication preserves contours; protecting unpopulated areas from interference would be wasteful and harm repacking flexibility | Court: FCC reasonably decided not to insulate unpopulated areas where interference concerns exist |
| Whether fill-in translators / DRTs must be protected as part of a broadcaster’s coverage area | Petitioners: translators can restore service and should be preserved | FCC: translators are separately licensed, not full-power/Class A; statute’s preservation duty applies to broadcast television licensees (full-power and Class A only) | Court: FCC reasonably excluded translators from statutorily required protections |
| Sinclair: (a) whether 39-month construction/go-dark deadline is unreasonable; (b) whether statutory requirement that "at least two competing licensees participate" requires market/geographic competition or actual bidding | Sinclair: 39 months is insufficient given supply/labor constraints; two-participant requirement should mean actual competing bidders in same market who accept offers | FCC: 39 months aligns with existing construction rules and statute; phased transition and market responses mitigate shortages. "Participate" can be satisfied by eligible applicants without actual bids; "competing" is sensibly defined by competition for the same pool of forward-auction proceeds, not market geography | Court: Sinclair has standing, but FCC’s 39-month period and broad definition of "participate/competing" are reasonable and not arbitrary |
Key Cases Cited
- Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (permitting two-step review of agency statutory interpretations)
- Northpoint Tech., Ltd. v. FCC, 412 F.3d 145 (D.C. Cir. 2005) (applying Chevron framework to FCC interpretations)
- Gen. Instrument Corp. v. FCC, 213 F.3d 724 (D.C. Cir. 2000) (overlap of Chevron step two and arbitrary-and-capricious review)
- Sprint Corp. v. FCC, 315 F.3d 369 (D.C. Cir. 2003) (notice-and-comment deficiency where bureau notice differed from final rule)
- U.S. Telecom Ass'n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) (harmlessness and notice issues in FCC rulemaking)
- City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012) (deference to agency interpretations in certain contexts)
- Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167 (standing requirements for environmental plaintiffs; injury-in-fact test)
- Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014) (substantial probability/std for future harms in standing analysis)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (standard for showing substantial risk of future harm for standing)
- Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) (deference to FCC predictive judgments)
- Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965 (D.C. Cir. 1999) (agency balancing of competing statutory goals)
- Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003) (meaning of "reasonable" in statutory directives to FCC)
- Capital Network Sys., Inc. v. FCC, 28 F.3d 201 (D.C. Cir. 1994) (judicial deference to FCC interpretations of ambiguous statutory terms)
- In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012) (standing analysis guidance)
- City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) (courts should not assume agency factual conclusions at standing stage)