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Free Access & Broadcast Telemedia, LLC. v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

August 1, 2017

Free Access & Broadcast Telemedia, LLC, et al., Petitioners
v.
Federal Communications Commission and United States of America, Respondents

          Argued May 16, 2017

         On Petition for Review of Orders of the Federal Communications Commission

          Glenn 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.

          OPINION

          Griffith, Circuit Judge

         In 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.

         I

         The 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).

          This 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.

         Here 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; and
• 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 ...

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