DC Circuit Questions PMCM Arguments
PMCM was peppered with questions from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit during oral argument Thursday over the broadcaster’s contention the FCC should allow its WJLP Middletown Township, New Jersey, to broadcast on virtual channel 3 (see 1805140068). When PMCM attorney Donald Evans of Fletcher Heald said there was “ambiguity” in rules on channel assignment to a station relocated to a new market as WJLP did, Judge Thomas Griffith interrupted. “What do we do with ambiguities in this court?” Griffith asked. In such cases, the court generally “defers to an administrative agency,” Evans conceded. “That’s what the law tells us to do,” said Griffith, nodding.
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The judges “did seem a little skeptical,” Evans said after the hearing. The case will turn on whether the panel will defer to the FCC and accept the agency’s argument it has discretion to decide channel assignments, Evans said. FCC Counsel James Carr’s portion of the oral argument had far fewer interruptions. The agency declined to comment.
Evans argued Thursday that since WJLP had an existing analog license when it was KVNV Ely, Nevada, it shouldn’t fall under rules for newly assigned stations even though it was relocated to a new designated market area. PMCM had “no existing analog license in New York,” said Carr. The rules dictating what channel newly assigned stations should receive were adopted by the FCC in 2006 but written by the ATSC, and Evans argued Thursday that they don’t merit the deference given to rules. A rule “has the force of law,” Griffith said. Judge Robert Wilkins asked if Evans based that distinction on any precedent or authority, and Evans conceded he hadn’t found such.
In 2009, ATSC clarified that the rules would apply only to channels that previously had been “allotted” in a given market rather than “used,” and under that change, the FCC should have assigned PMCM the channel it sought, Evans said. However, the agency never adopted that clarification, the panel noted. “Why would we be looking at the clarification?” Griffith asked. The commission didn’t adopt the clarification because it put its “hands over its ears,” Evans said. The intent of the “framers” of the rule should matter to the D.C. Circuit, he said. Courts traditionally don’t look at “subsequent statements,” Wilkins said. Congressional comments on the intent of legislation after it's passed aren’t considered when interpreting the language of legislation, he said. “How is this different?”
Even putting aside issues with the rule's wording, the broadcaster's points don’t mean it has the right to the channel it wants, Judge Gregory Katsas said. The FCC argued “as a matter of discretion” that allowing WJLP to use channel 3 over the objections of other broadcasters in the region using the same channel will harm the existing channels brands, Katsas said. The agency “went completely overboard” in the cause of brand protection, which isn't part of its charter, Evans said. Katsas’ point was later echoed by Carr. The rules referenced by Evans aren’t intended to address every conceivable channel assignment issue, Carr said. The FCC “retains discretion to resolve channel disputes,” he said.
Evans also argued the regulator violated the Spectrum Act by imposing an involuntary channel change on WJLP despite the act’s freeze on such changes during the incentive auction. Since the repacking is ongoing, that change is illegal, PMCM said. Though broadcasters and FCC officials often use the phrase “repacking” to refer to the still-ongoing shift of broadcasters to their new channels, Carr said Thursday the repacking ended in 2017 with the completion of the forward auction and the reassignment of broadcast channels. Carr also conceded there “are still possible adjustments” and Evans said this amounts to an admission that the freeze on channel changes still applies. “Clearly, it is not done,” Evans said.