MAKO COMMUNICATIONS, LLC, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Free Access & Broadcast Telemedia, LLC, Intervenor
No. 15-1264
United States Court of Appeals, District of Columbia Circuit.
Argued May 5, 2016 Decided August 30, 2016
835 F.3d 146
Here, we are not confronted with a separate sovereign seeking to vindicate important interests as it sees fit. Instead, we are faced with the federal executive branch‘s assertion that it should get the first crack at deciding Al-Nashiri‘s substantial constitutional and statutory challenges to a military commission‘s authority to try him even though Al-Nashiri may, because of the executive branch‘s past actions, suffer severe and permanent injuries from the exercise of its jurisdiction. Further, the military commission has concluded that it will not fully determine its own jurisdiction, in the first instance, until trial. By the time Al-Nashiri has an opportunity for meaningful judicial review, the extraordinary injuries may well have occurred.
When the notions of equity and inter-branch comity articulated by the court are considered against Al-Nashiri‘s unusual and extraordinary allegations of harm, as well as the long-established principle that it is the judiciary‘s duty to ultimately say what the law is, see Zivotofsky, 132 S.Ct. at 1427-28, I believe that abstention-again, assuming Al-Nashiri‘s allegations are true-is unwarranted.
R. Scott Caulkins, Arlington, VA, argued the cause for petitioners. With him on the briefs were Aaron P. Shainis, Lee J. Peltzman, Washington, DC, and W. James Mac Naughton, Newton, NJ.
Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were William J. Baer, Assistant Attorney General, U.S. Department of Justice, Robert J. Wiggers and Kristen C. Limarzi, Attorneys, Jonathan B. Sallet, General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
In 2012, Congress enacted the Spectrum Act. The Act responds to the rapidly growing demand for mobile broadband services by granting the Federal Communications Commission authority to reallocate a portion of the licensed airwaves from television broadcasters to mobile broadband providers. The Act contemplates the repurposing of licensed spectrum through a multi-step auction process. Broadcasters can offer to relinquish existing spectrum rights for a price, and other parties (including wireless providers) can bid to purchase the newly available spectrum. The Act also enables the Commission to make airwaves available by reassigning broadcasters to a smaller band of spectrum through a process called “repacking.” This Court has upheld the Commission‘s rules for the auction and repacking process against a challenge brought by the television broadcast industry. Nat‘l Ass‘n of Broad. v. FCC, 789 F.3d 165 (D.C. Cir. 2015).
This case involves a further challenge to the Commission‘s implementation of the Spectrum Act brought by a particular species of broadcasters-low-power television (LPTV) stations. LPTV stations often serve areas not reached by full-power broadcast stations and can carry niche programming catered to particular local communities. LPTV stations have always had secondary status relative to primary ser-
In implementing the Spectrum Act, the Commission gave no protection to LPTV stations in connection with the reallocation of licensed spectrum as part of the auction and repacking process. The Commission understands the Spectrum Act to call for such protections only with regard to primary services, and in the Commission‘s view, extending those protections to LPTV stations would unduly impair the agency‘s ability to make an adequate amount of spectrum available for mobile broadband providers. The result is that many LPTV stations may be displaced or forced to shut down.
In this case, petitioners Mako Communications and Beach TV, on behalf of LPTV stations, challenge the Commission‘s denial of protections to LPTV stations in the auction and repacking process. According to petitioners, the Commission‘s actions in that regard violate the Spectrum Act. We deny the petitions for review and sustain the Commission‘s orders.
I.
The Spectrum Act, enacted as Title VI of the Middle Class Tax Relief and Job Creation Act of 2012,
This case principally involves the repacking process, and, in particular, the implications of that process for LPTV stations. The statutory framework governing the repacking process is set out in
First, under
Unlike
In addition to determining that neither
The reduction in available spectrum associated with the reallocation of airwaves to wireless services is anticipated to have a substantial impact on the LPTV industry. Numerous LPTV stations thus brought petitions for reconsideration of the Commission‘s rulemaking, including Mako Communications and Beach TV Properties, the petitioners in this case. On reconsideration, the Commission affirmed its intent to exclude LPTV stations from protection in the repacking process (while also reiterating a commitment to mitigate the adverse impact on LPTV stations and other secondary licensees in a separate rulemaking). See Reconsideration Order ¶¶ 64, 67, 68, 72-76; see also Low Power Television Digital Rules, Proposed Rule, 81 Fed. Reg. 5086 (Feb. 1, 2016). Petitioners Mako and Beach TV each filed a petition for review of the Commission‘s orders in our Court. See
Before addressing the merits of the arguments raised by petitioners, we briefly note a jurisdictional challenge raised by the Commission. The Commission contends that Mako‘s petition lies beyond our jurisdiction because Mako failed to challenge the Commission‘s Order (instead naming only the Commission‘s Reconsideration Order) in its original filings with this court. Although we generally lack jurisdiction over a petition challenging only an agency‘s denial of reconsideration, see Sinclair Broad. Grp., Inc. v. FCC, 284 F.3d 148, 156 (D.C. Cir. 2002), we undisputedly have jurisdiction over Beach TV‘s petition. Because Beach TV raises the same arguments as Mako, we can address the merits of the petitions based on our authority
II.
Petitioners argue that the Commission‘s implementation of the repacking process-in particular, the Commission‘s refusal to protect LPTV stations in that process-contravenes
We review the Commission‘s interpretation of the statute under the two-step Chevron framework. See Nat‘l Ass‘n of Broad., 789 F.3d at 171 (citing Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005)). First, we consider whether Congress “has directly spoken to the precise question at issue,” in which case we “give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If “the statute is silent or ambiguous with respect to the specific issue,” we then decide if the agency‘s interpretation is “a permissible construction of the statute.” Id. at 843. “A ‘reasonable’ explanation of how an agency‘s interpretation serves the statute‘s objectives is the stuff of which a ‘permissible’ construction is made.” Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005) (citing Chevron, 467 U.S. at 863).
The pertinent statutory language bars the Commission from implementing its statutory repacking authority in a manner that would “alter the spectrum usage rights of low-power television stations.”
In order to assess whether the repacking process envisioned by the Commission‘s orders could “alter” LPTV stations’ “spectrum usage rights,” we must initially identify the nature of those spectrum usage rights in the first place (before any purported alteration). Since their inception as a category in 1982, LPTV stations have been accorded secondary status. That status means that LPTV stations have always been subject to displacement by primary services such as full-power broadcast stations. LPTV stations cannot cause interference to (and must accept interference from) primary services. See Order ¶ 239. LPTV stations’ “secondary status” therefore has always “pose[d] the possibility that they might be required to alter facilities or cease operation at any time.” An Inquiry Into the Future Role of Low Power Television Broadcasting & Television Translators in the National Telecommunications System, 47 Fed. Reg. 21468, 21489 ¶ 95 (May 18, 1982).
Petitioners do not dispute that LPTV stations have had a secondary status relative to-and thus have been subject to displacement by-primary services such as full-power television licensees. According to petitioners, however, LPTV stations did not have secondary status vis-à-vis wireless service providers before the Spectrum
We need not address whether petitioners are correct in assuming that
Petitioners claim, however, that the Commission‘s orders under the Spectrum Act materially differ from the Commission‘s Digital LPTV Order, under which LPTV stations could remain on vacated channels as secondary licensees. Under the challenged orders, petitioners contend, LPTV stations instead are removed completely from the reallocated spectrum. Petitioners’ understanding is incorrect. As was the case under the Digital LPTV Order, LPTV stations can still remain on cleared spectrum until a wireless provider actually displaces them. See, e.g., Order ¶¶ 668-671. Thus, contrary to petitioners’ claims, the challenged orders subordinate LPTV stations to wireless licensees in the same way the Commission had done before the Spectrum Act. We therefore reject petitioners’ contention that the terms of
Proceeding to Chevron step two, we ask whether the Commission offered a “‘reasonable’ explanation of how [its] interpretation serves the [Act]‘s objectives.” Northpoint Tech., Ltd., 412 F.3d at 151 (citing Chevron, 467 U.S. at 863). The challenged orders meet that standard. There are approximately 1,900 licensed LPTV stations. The Commission reasonably declined to protect LPTV stations from displacement in the repacking process because doing so would “severely limit ... recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act.” Order ¶ 241. In National Ass‘n of Broadcasters, we rejected the argument that the Commission was required to protect one type of low-power station (known as a “fill-in translator” because it fills gaps in the geographic coverage of a full-power station). See Nat‘l Ass‘n of Broad., 789 F.3d at 179. We explained that the Commission permissibly declined to protect fill-in translator stations so as to avoid significantly impairing the agency‘s flexibility in the repacking process. Id. at 180. That is essentially the same explanation given by the Commission in the orders under review in this case, and we see no reason for any different result here.
We finally (and briefly) take up, and reject, a distinct procedural challenge raised by petitioners. According to petitioners, the Commission‘s orders are inconsistent with Section 312 of the Communications Act,
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For the foregoing reasons, we deny the petitions for review.
So ordered.