Mako Communications, LLC V. FCC.

• Author: Redfoot, Kenyon
• Position: Broadcast incentive auction exclusions for low-power television stations

MAKO COMMUNICATIONS, LLC V. FCC

No. 15-1264 (D.C. Cir. 2016)

In Mako Communications v. FCC, (1) the United States Court of Appeals for the District of Columbia Circuit denied two petitions for review of an FCC Order excluding low-power television (LPTV) stations from protection in the "repacking" phase of the ongoing broadcast incentive auction. (2)

1. BACKGROUND

   Enacted as Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, the Spectrum Act sets forth--and authorizes the FCC to conduct--a multi-step auction process designed to combat "spectrum crunch" by reallocating television broadcast licenses to satisfy the growing demands of mobile broadband. (3) The auction's first phase, which commenced in March 2016, (4) involved the repurchase of licensed spectrum from television broadcasters through "reverse" bidding. (5) Ultimately, this spectrum will be sold to wireless service providers in a "forward" auction. (6) To connect these matters of supply and demand, however, the Spectrum Act framework will require the FCC to "repack" space for television broadcasters planning to stay on the air. (7) The natural result of the auction--indeed, its fundamental purpose--will necessitate that these remaining broadcasters share a narrower range of spectrum than had been previously allocated for television service. (8)

   While this plan is likely to present myriad technical and economic challenges for broadcasters generally, (9) LPTV stations are in a position of unique vulnerability arising from their secondary status to full-power counterparts. Since 1982, LPTV stations have been required to either avoid interference with primary broadcasters or cease operation. (10) However, as the band of spectrum available to a large pool of broadcasters shrinks, avoiding interference becomes increasingly difficult. (11) In light of this concern, the Spectrum Act contains two subsections, codified under 47 U.S.C. [section] 1452(b), purporting to limit the FCC's repacking power. (12) While the first general limitation requires the FCC to "make all reasonable efforts to preserve . . . the coverage area and population served of each broadcast television licensee," (13) the statutory definition of "broadcast television licensee" does not extend to the majority of LPTV stations (i.e., those operating without a Class A license). (14) Nonetheless, [section] 1452(b)(5) provides further that "[n]othing in [[section] 1452(b)] shall be construed to alter the...