National Association of Broadcasters v. FCC.

• Author: Kessler, Warren

NATIONAL ASSOCIATION OF BROADCASTERS V. FCC

789 F.3d 165 (D.C. Cir. 2015)

In National Ass'n of Broadcasters v. FCC, (1) the United States Court of Appeals for the District of Columbia Circuit denied petitions for review of the FCC's orders instituting its incentive auction and corresponding channel repackaging of radiofrequency spectrum. (2)

1. BACKGROUND

   Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 (3) authorizes the FCC to reallocate portions of radiofrequency spectrum from television broadcasters to mobile broadband providers. (4) The incentive auction is, in part, Congress's response to the American public's voracious demand for mobile broadband service. (5) Ultra-high frequency spectrum is valuable to broadband providers because its characteristics make it particularly "well-suited for mobile broadband use." (6)

   Title VI, also known as the Spectrum Act, establishes a three-part reallocation process. (7) First, the FCC will initiate a reverse auction to incentivize broadcasters to hand over spectrum in return for payment. (8) The Spectrum Act's second step authorizes the FCC to repackage spectrum belonging to broadcasters that did not participate in the incentive auction and to then reassign smaller spectrum bands to those broadcasters. (9) Finally, the FCC will facilitate a forward auction for broadband providers to purchase newly-released spectrum. (10)

   In the instant case, National Association of Broadcasters and Sinclair Broadcast Group, Inc. filed petitions for review of an order from the FCC (11) that laid out the FCC's implementation of the Spectrum Act. In particular, the petitioners challenged the FCC's proposed use of certain tools and data in the repackaging process. (12) The FCC was required to use "all reasonable efforts" to preserve the "coverage area" and "population served" of broadcasters as they were being assigned new spectrum. (13) These metrics are important because the new repackaged stations are supposed to generally serve the same viewers as they did before the incentive auction. (14) To accomplish these goals, the Spectrum Act requires the FCC to "make all reasonable efforts to preserve, as of February 22, 2012, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69 of the Office of Engineering and Technology" (OET) of the FCC. (15)

   The petitioners argued that in applying this methodology, known as the...