United States Court of Appeals, District of Columbia Circuit
May 16, 2017
Petition for Review of Orders of the Federal Communications
B. Manishin argued the cause for petitioners. With him on the
briefs were A. Wray Fitch III, George R. Grange II, and
Robert Olender. Adam J. White entered an appearance.
William J. Scher, Counsel, Federal Communications Commission,
argued the cause for respondents. With him on the brief were
Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S.
Department of Justice, Howard J. Symons, General Counsel at
the time the brief was filed, David M. Gossett, Deputy
General Counsel, and Jacob M. Lewis, Associate General
Counsel. Richard K. Welch, Deputy Associate General Counsel,
and Thaila Sundaresan, Counsel, Federal Communications
Commission, entered appearances.
Before: Henderson, Griffith, and Srinivasan, Circuit Judges.
Griffith, Circuit Judge
2014, the Federal Communications Commission adopted
procedures for an auction designed to make more room on the
electromagnetic spectrum for mobile broadband (wireless
network) providers. In an earlier decision, we upheld the
2014 order creating these procedures. Petitioners now attack
two related but more recent orders, but their challenges are
barred to the extent that they target decisions that were
made in the 2014 order and never since revisited. We may
consider only petitioners' claim that one of the two
later orders was irrational or devoid of substantial
supporting evidence-a challenge we must reject.
Spectrum Act of 2012 authorizes the FCC to conduct an auction
to give mobile broadband services access to parts of the
electromagnetic spectrum currently occupied by broadcast
television stations. 47 U.S.C. § 309(j)(8)(G)(i);
see Mako Commc'ns, LLC v. FCC, 835 F.3d 146, 147
(D.C. Cir. 2016). In particular, the Spectrum Act allows the
Commission to crowd television broadcasters into "a
smaller band of spectrum" (or "repack" them,
in the Commission's argot), Mako, 835 F.3d at
147; see 47 U.S.C. § 1452, and then to let
mobile broadband services make bids for the freed-up
bandwidth. The Spectrum Act empowers the Commission to use
repacking for a second and closely related purpose as well:
to curb interference between licensed users by separating
their allotments of spectrum with "guard
bands"-which are portions of the bandwidth kept free of
any licensed use. 47 U.S.C. § 1454(a), (b).
case is about the rights in the repacking process of
low-power television (LPTV) stations, which tend to
"serve areas not reached by full-power broadcast
stations" and offer "niche programming catered to
particular communities." Mako, 835 F.3d at 148.
The Spectrum Act protects LPTV stations by guaranteeing that
"nothing" in its provisions authorizing the FCC to
conduct repacking "shall be construed to alter"
their "spectrum usage rights." 47 U.S.C. §
1452(b)(5). That is, the Commission may not use a spectrum
auction to deprive LPTV stations of rights they had before
the auction and repacking. But those rights were limited to
begin with. In light of their smaller coverage, these
stations have generally been assigned "secondary status
relative to primary services such as full-power stations,
" meaning that under Commission regulations, "if an
LPTV station's transmissions interfere with a primary
service, the LPTV station must either eliminate the
interference or cease operations." Mako, 835
F.3d at 147-48.
several LPTV stations contend that the Commission has
nonetheless shrunk their usage rights, and acted arbitrarily
and even unconstitutionally, in two recent orders specifying
various details of the repacking process: what are known as
the Commencing Operations Order, 30 FCC Rcd. 12, 025 (Oct.
22, 2015), and the Channel-Sharing Order, 30 FCC Rcd. 14, 927
(Dec. 17, 2015). In attacking these orders, petitioners
challenge the legality of three policy choices in particular:
• the Commission's decision to force LPTV stations
to reduce or cease operations upon receiving notice from a
new licensed user that it is about to "commence
operations" where "there is a likelihood of
receiving harmful interference from" the LPTV stations
in question, 29 FCC Rcd. 6567, 6840, ¶ 668 (May 15,
2014) (Auction Order);
• the Commission's decision to allow unlicensed
entities to make use of the guard bands it has created,
id. at 6685-86, ¶¶ 271-73, even though
these bands remain (by definition) off-limits to licensed
users like LPTV stations, id. at 6684, ¶ 270;
• the Commission's refusal to guarantee that LPTV
stations licensed to use portions of bandwidth
(i.e., channels) before a spectrum auction
would have somewhere to land-some channel they could
use-after the ...