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Brief for Resp'ts - Sky Television, L.L.C. v. FCC & USA (D.C. Cir.)

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Released: March 31, 2014
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 1 of 48

BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 13-1270

SKY TELEVISION, L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. BAER
JONATHAN B. SALLET
ASSISTANT ATTORNEY GENERAL
ACTING GENERAL COUNSEL


ROBERT B. NICHOLSON
DAVID M. GOSSETT
ADAM D. CHANDLER
ACTING DEPUTY GENERAL COUNSEL
ATTORNEYS


JACOB M. LEWIS
UNITED STATES
ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
PAMELA L. SMITH

COUNSEL

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 2 of 48

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



1. Parties.
The petitioner is Sky Television, L.L.C. The respondents are the
Federal Communications Commission and the United States of America.
There are no intervenors or amici. All parties appearing before the Federal
Communications Commission are listed in the Brief for Sky Television,
L.L.C.
2. Ruling under Review.
In the Matter of Assessment and Collection of Regulatory Fees for
Fiscal Year 2013; Procedures for Assessment and Collection of Regulatory
Fees; Assessment and Collection of Regulatory Fees for Fiscal Year 2008,
Report and Order, 28 FCC Rcd 12351 (2013) (JA ).
3. Related Cases.
The order on review has not previously been before this Court.
Counsel is not aware of any related cases that are pending before this Court or
any other court.






USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 3 of 48

TABLE OF CONTENTS


TABLE OF AUTHORITIES ........................................................................... ii 
GLOSSARY .................................................................................................... iv 
JURISDICTION ................................................................................................ 1 
QUESTIONS PRESENTED ............................................................................. 2 
STATUTES AND REGULATIONS ................................................................ 2 
COUNTERSTATEMENT ................................................................................ 2 
I. 
BACKGROUND........................................................................................ 2 
A.  Statutory and Regulatory Framework ................................................... 3 
B.  The Proceeding Below .......................................................................... 5 
II.  THE ORDER ON REVIEW ...................................................................... 8 
SUMMARY OF ARGUMENT ...................................................................... 10 
STANDARD OF REVIEW ............................................................................ 11 
ARGUMENT .................................................................................................. 12 
I. 
THE COURT LACKS JURISDICTION TO CONSIDER
SKY’S CHALLENGE TO THE ORDER ON REVIEW. ......................... 12 
A.  Judicial Review Is Precluded by Statute. ............................................ 12 
B.  None of the Arguments That Sky Offers in Support of the
Petition for Review Was Raised Before the Commission. ................. 15 
II.  ON THE MERITS, THE COMMISSION ACTED WELL
WITHIN ITS STATUTORY AUTHORITY AND ITS
DISCRETION WITH RESPECT TO SKY’S CHALLENGE
TO THE ORDER ON REVIEW. .............................................................. 17 
CONCLUSION ............................................................................................... 23 
i

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 4 of 48

TABLE OF AUTHORITIES

CASES

 
*
Amgen Inc. v. Smith, 357 F.3d 103 (D.C. Cir. 2004) ...................................... 12
AT&T Corp. v. FCC, 220 F.3d 607 (D.C. Cir. 2000) ..................................... 11
Bowman Transp. Inc. v. Arkansas-Best Freight Sys.,
419 U.S. 281 (1974) .................................................................................... 11
Burlington Truck Lines v. United States, 371 U.S.
156 (1962) ................................................................................................... 11
COMSAT Corp. v. FCC, 114 F.3d 223 (D.C. Cir.
1997) ............................................................................................................ 14
COMSAT Corp. v. FCC, 283 F.3d 344 (D.C. Cir.
2002) ............................................................................................................ 15
Covad Commc’ns Co. v. FCC, 450 F.3d 528 (D.C.
Cir. 2006) ..................................................................................................... 21
Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292
(D.C. Cir. 2013) ........................................................................................... 11
In re Core Commc’ns, 455 F.3d 267 (D.C. Cir.
2006) ............................................................................................................ 16
*
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29 (1983) ................................................................. 11, 17
PanAmSat Corp. v. FCC, 198 F.3d 890 (D.C. Cir.
1999) ............................................................................................................ 15
*
Sw. Airlines Co. v. TSA, 554 F.3d 1065 (D.C. Cir.
2009) ............................................................................................................ 14
Tex. Alliance for Home Care Servs. v. Sebelius, 681
F.3d 402 (D.C. Cir. 2012) ........................................................................... 14

ADMINISTRATIVE DECISIONS

 
Assessment and Collection of Regulatory Fees for
Fiscal Year 2012, 27 FCC Rcd 8390 (2012) ............................................... 21

STATUTES AND REGULATIONS

 
5 U.S.C. § 701 ................................................................................................. 12
5 U.S.C. § 702 ................................................................................................. 12
ii

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 5 of 48
5 U.S.C. § 706(2)(A) ....................................................................................... 11
28 U.S.C. § 2342(1) .......................................................................................... 1
47 U.S.C. § 159 ................................................................................................. 3
47 U.S.C. § 159(a)(1) ........................................................................................ 3
47 U.S.C. § 159(a)(2) ........................................................................................ 3
47 U.S.C. § 159(b)............................................................................................. 2
47 U.S.C. § 159(b)(1) ...................................................................................... 12
47 U.S.C. § 159(b)(1)(A) ........................................................................... 3, 22
47 U.S.C. § 159(b)(1)(B) ..................................................................... 4, 18, 20
47 U.S.C. § 159(b)(1)(C) .................................................................................. 4
47 U.S.C. § 159(b)(2) ............................................................... 4, 10, 13, 14, 22
47 U.S.C. § 159(b)(2)(B) ................................................................................ 20
*
47 U.S.C. § 159(b)(3) ............................................................... 5, 10, 13, 14, 22
47 U.S.C. § 159(b)(4)(A) .................................................................................. 4
*
47 U.S.C. § 159(b)(4)(B) ..................................................................... 5, 19, 22
47 U.S.C. § 159(c)(1) ...................................................................................... 20
47 U.S.C. § 402(a) ............................................................................................. 1
47 U.S.C. § 405 .......................................................................................... 2, 10
*
47 U.S.C. § 405(a) .................................................................................... 15, 16
Consolidated and Further Continuing
Appropriations Act, Pub. L. 113-6, 127 Stat. 198
(2013) ............................................................................................................ 5
Financial Services and General Government
Appropriations Act, Pub. L. 112-74, 125 Stat.
786 (2011) ..................................................................................................... 5
Omnibus Budget Reconciliation Act of 1993, Pub.
L. 103-66, 107 Stat. 397 ................................................................................ 4


* Cases and other authorities principally relied upon are marked with
asterisks.

iii

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 6 of 48

GLOSSARY

Commission or FCC
Federal Communications Commission
Communications Act or Act
47 U.S.C. §§ 151, et seq.
FY fiscal
year
(October
1 through September 30)
FY 2013 NPRM
In the Matter of Assessment and Collection of
Regulatory Fees for Fiscal Year 2013; Procedures
for Assessment and Collection of Regulatory Fees;
Assessment and Collection of Regulatory Fees for
Fiscal Year 2008
, Notice of Proposed Rulemaking
and Further Notice of Proposed Rulemaking, 28
FCC Rcd 7790 (2013) (JA )
FTEs full-time
employees
Order on Review
In the Matter of Assessment and Collection of
Regulatory Fees for Fiscal Year 2013; Procedures
for Assessment and Collection of Regulatory Fees;
Assessment and Collection of Regulatory Fees for
Fiscal Year 2008
, Report and Order, 28 FCC Rcd
12351(2013) (JA )
Section 9
Communications Act § 9, 47 U.S.C. § 159
Sky
Sky Television, L.L.C.
UHF
Ultra High Frequency
VHF
Very High Frequency





iv

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 7 of 48
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 13-1270

SKY TELEVISION, L.L.C.,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

JURISDICTION

The Federal Communications Commission (“FCC” or “Commission”)
rulemaking order that is the subject of this petition for review was adopted on
August 8, 2013, released on August 12, 2013, and published in the Federal
Register on August 23, 2013. The Court generally has jurisdiction to review
final orders of the Commission pursuant to 47 U.S.C. § 402(a) and 28 U.S.C.
§ 2342(1). As we explain below, in part I of the Argument, petitioner Sky
Television, L.L.C. (“Sky”)’s challenge to the Commission’s final order is not
justiciable because the order on review belongs to a class of final
Commission orders for which judicial review is precluded by statute, see 47

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 8 of 48
U.S.C. § 159(b), and because Sky did not present any of its arguments in
support of review to the Commission in the first instance, see id. § 405.

QUESTIONS PRESENTED

1. Should the petition for review be dismissed because judicial review
is precluded by law?
2. Should the petition for review be denied because the agency action
for which review is being sought was reasonable?

STATUTES AND REGULATIONS

The pertinent statutory provisions and regulations are set forth in the
appendix to this brief.

COUNTERSTATEMENT

I.

BACKGROUND

As mandated by Section 9 of the Communications Act, the FCC is
largely funded by fees collected from licensees. Those fees are set each year,
and vary based on category of licensee, the amount of the Commission’s
work that is based on regulating that type of licensee, and other factors. In
this proceeding, the FCC decided to combine two categories of licensees—
TV stations broadcasting in the VHF and UHF frequencies—but made that
change prospective, starting in the 2014 fiscal year. Petitioner argues that the
change should instead have been made effective in the 2013 fiscal year. But
the statute precludes this Court from considering that argument. And Sky
2

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 9 of 48
never made that argument to the Commission, which prevents it from raising
it here. In any event, the Commission’s decision was entirely reasonable
because Section 9 mandated that the Commission give Congress 90 days’
advance notice before implementing this change, and the change was adopted
less than 90 days before the end of the 2013 fiscal year.

A. Statutory and Regulatory Framework

Section 9 of the Communications Act, 47 U.S.C. § 159, requires the
Commission to “assess and collect regulatory fees to recover the costs of the
following regulatory activities of the Commission: enforcement activities,
policy and rulemaking activities, user information services, and international
activities.” 47 U.S.C. § 159(a)(1). The regulatory fees, however, “shall be
collected only if, and only in the total amounts, required in Appropriations
Acts” by Congress. Id. § 159(a)(2).
Under Section 9, regulatory fees “shall” be assessed “by determining
the full-time equivalent number of employees” at the Commission performing
the specified regulatory activities, as “adjusted to take into account factors
that are reasonably related to the benefits provided to the payor of the fee by
the Commission’s activities.” Id. § 159(b)(1)(A). The fees assessed annually
must be “established at amounts that will result in collection, during each
3

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fiscal year, of an amount that can reasonably be expected to equal the amount
appropriated for such fiscal year.” Id. § 159(b)(1)(B).
1
When Congress first enacted Section 9, in 1993, it specified that the
assessed regulatory fees would “be the fees established by the Schedule of
Regulatory Fees in subsection (g) [of Section 9]” “until adjusted or amended
by the Commission pursuant to [Section 9(b)(2) or 9(b)((3)].” Id.
§ 159(b)(1)(C). Section 9(b)(2) provides that the Commission annually must
adjust Section 9 fees by “revis[ing] the Schedule of Regulatory Fees by
proportionate increases or decreases to reflect,” among other things, “changes
in the amount appropriated for the performance of the [regulatory] activities.”
Id. § 159(b)(2) (entitled “Mandatory adjustments of schedule”). The
Commission is required to “transmit to the Congress notification of any
adjustment made pursuant to [this provision] immediately upon the adoption
of such adjustment.” Id. § 159(b)(4)(A). Congress specified that “[i]ncreases
or decreases in fees made by adjustments pursuant to [Section 9(b)(2)] shall
not be subject to judicial review.” Id. § 159(b)(2).
In addition to the annual adjustments under Section 9(b)(2), Section
9(b)(3) authorizes the Commission to “amend the Schedule of Regulatory

1 Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66, 107 Stat.
397.
4

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 11 of 48
Fees” “if the Commission determines that the Schedule requires amendment
to comply with” the overall requirements of Section 9(a)(1). In particular, the
Commission must “add, delete, or reclassify services in the Schedule to
reflect additions, deletions, or changes in the nature of its services as a
consequence of Commission rulemaking proceedings or changes in law.” Id.
§ 159(b)(3). Amendments made pursuant to Section 9(b)(3) must be
“transmit[ted] to the Congress . . . not later than 90 days before the effective
date of such amendment.” Id. § 159(b)(4)(B). Here again Congress specified
that “[i]ncreases or decreases in fees made by amendments pursuant to
[Section 9(b)(3)] shall not be subject to judicial review.” Id. § 159(b)(3).

B. The Proceeding Below

On March 26, 2013, in the Consolidated and Further Continuing
Appropriations Act, 2013, Pub. L. 113-6, 127 Stat. 198, Congress directed the
Commission to assess and collect regulatory fees in the amount of
2
$339,844,000 for fiscal year 2013. On May 23, 2013, the Commission
initiated “two interrelated proceedings”: (1) “on our annual process of

2 Specifically, Congress authorized the Commission to collect regulatory
fees for fiscal year 2013 in the same amount – $339,844,000 – that Congress
had authorized for fiscal year 2012. See Pub. L. 113-6, 127 Stat. 198 at
Division F (2013); Financial Services and General Government
Appropriations Act, 2012, Pub. Law 112-74, 125 Stat. 786 at Division C
(2011).
5

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 12 of 48
assessing regulatory fees to offset the Commission’s FY 2013 appropriation,
as directed by Congress,” and (2) “on more long-range proposals to reform
and revise our regulatory fee schedule after FY 2013 (for FY 2014 and
beyond).” In the Matter of Assessment and Collection of Regulatory Fees for
Fiscal Year 2013; Procedures for Assessment and Collection of Regulatory
Fees; Assessment and Collection of Regulatory Fees for Fiscal Year 2008,
Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking,
28 FCC Rcd 7790, 7791 at ¶ 1 (2013) (“FY 2013 NPRM”) (JA ).
In particular, the Commission first proposed adjusting the FY 2013
Schedule of Regulatory Fees under Section 9(b)(2), by changing the manner
in which it allocated FTEs [full-time employees] to specific regulatory
activities. It explained that while “we are required by section 9 of the Act to
calculate regulatory fees based on an allocation of FTEs, we are not required
to use the same methodology year after year.” Id. at 7797 ¶ 16 (JA ). The
Commission thus “tentatively conclude[d] that our methodology . . . should
be revised to more accurately reflect the direct and indirect costs for
[specified] regulatees,” but noted that “[s]uch revisions should take into
account the impact on all regulatees, because any change in the allocation of
the total regulatory fee amount for one category of fee payors necessarily
affects the fees paid by payors in all the other fee categories.” Ibid. (JA ).
6

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The Commission also proposed amending the Schedule of Regulatory
Fees under Section 9(b)(3). As relevant here, the Commission noted that,
“[a]fter the transition to digital television on June 12, 2009,” it had received
comments “suggesting that the Commission combine the UHF and VHF
regulatory fee categories” which “would in effect eliminate any distinctions
between UHF and VHF services.” Id. at 7805 ¶ 35 (JA ). Based on these
comments, the Commission proposed that “the UHF and VHF full service
television station categories be combined into one fee category, divided into
tiers based on market size, with one resulting rate.” Id. ¶ 36 (JA ). The
Commission noted that “[t]his proposal, if adopted, will be implemented in
FY 2014.” Id. ¶ 36 (JA ). The Commission sought “comment on [the]
proposal,” ibid., and established filing dates of June 19, 2013 for comments
and June 26, 2013 for reply comments. See id. at 7790 (JA ).
On June 19, 2013, Sky filed comments that “strongly support[ed] the
Commission’s proposal to eliminate the disparity between regulatory fees that
are assessed to digital VHF and UHF broadcast stations,” but “urge[d] that
this standard be adopted so that it applies to the regulatory fees assessed for
FY 2013 and not delayed until FY 2014 as proposed by the Commission.” In
the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year
2013; Procedures for Assessment and Collection of Regulatory Fees;
7

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 14 of 48
Assessment and Collection of Regulatory Fees for Fiscal Year 2008,
Comments of Sarkes Tarzian, Inc. and Sky Television, L.L.C. at 1 (JA ).
Sky asserted that “[t]he Commission offer[ed] no justification [in the FY 2013
NPRM] for further delaying the elimination of this fee irrational distinction,
and no compelling justification for such a delay exists.” Id. at 1 (JA ).

II.

THE ORDER ON REVIEW

On August 8, 2013, the Commission adopted, and on August 12, 2013,
it released a final order that “conclude[d] the rulemaking proceeding initiated
to collect $339,844,000 in regulatory fees for Fiscal Year (FY) 2013,
pursuant to Section 9 of the Communications Act . . . and the FY 2013
Further Continuing Appropriations Act,” and announced that “[t]hese
3
regulatory fees are due in September 2013.” In the Matter of Assessment
and Collection of Regulatory Fees for Fiscal Year 2013; Procedures for
Assessment and Collection of Regulatory Fees; Assessment and Collection of
Regulatory Fees for Fiscal Year 2008, Report and Order, 28 FCC Rcd 12351
¶ 1 (2013) (“Order on Review”) (JA ).

3 The Commission later announced that FY 2013 regulatory fee payments
must be received by the Commission no later than 11:59 PM, Eastern
Daylight Time, on September 20, 2013. Payment Methods and Procedures
for Fiscal Year 2013 Regulatory Fees,
Public Notice (rel. Sept. 4, 2013) (JA
).
8

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The Commission adjusted the FY 2013 Schedule of Regulatory Fees
under Section 9(b)(2) per its proposal. Sky’s fees were increased from
$39,800 to $42,775. Compare Order on Review, 28 FCC Rcd at 12377
(Attachment C) (FY 2013 fees) (JA ), with id. at 12391 (Attachment G) (FY
2012 fees) (JA ).
The Commission also adopted its proposed amendment to the Schedule
of Regulatory Fees “to combine the VHF and UHF stations in the same
market area into one fee category beginning in FY 2014 and eliminate the fee
disparity between VHF and UHF stations.” Id. at 12362 ¶ 30 (JA ).
Addressing Sky’s “request that the Commission implement this proposal in
FY 2013,” the Commission concluded that “[c]ombining UHF and VHF full-
service television stations into one fee category constitutes a reclassification
of services in the regulatory fee schedule as defined in section 9(b)(3) of the
Act, and pursuant to section 9(b)(4)(B) must be submitted to Congress at least
90 days before it becomes effective.” Id. at 12362 ¶ 31 (JA ). Because it
adopted the proposed amendment on August 8, 2013, the Commission
explained that there was “not . . . sufficient time to implement this change
before September 30, 2013” – the end of the fiscal year – “and therefore we
will implement this change in FY 2014.” Ibid. (JA ).
9

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Sky did not seek agency reconsideration and instead filed this petition
for review.

SUMMARY OF ARGUMENT

The petition for review should be dismissed. Sky’s challenge to its FY
2013 regulatory fee – which increased by $2,975 over FY 2012 – is precluded
by Section 9 of the Communications Act, which provides that “increases or
decreases in fees” made by adjustments or amendments to FCC regulatory
fees “shall not be subject to judicial review.” 47 U.S.C. § 159(b)(2), (3).
Even if review were not otherwise precluded by statute, the Court
would lack jurisdiction because Sky did not present any of its arguments in
support of review to the Commission in the first instance – either in its initial
comments or by filing a petition for reconsideration – which is a “condition
precedent” to judicial review under the Communications Act, 47 U.S.C.
§ 405.
Finally, if the Court were to reach the merits, the petition for review
should be denied because the Commission acted well within its statutory
authority and discretion in amending the Schedule of Regulatory Fees with
respect to the assessment and collection of FY 2013 regulatory fees.
10

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 17 of 48

STANDARD OF REVIEW

Statutory preclusion of review is a question of law, which this Court
reviews de novo. Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292, 297
(D.C. Cir. 2013).
If the Court determines that it has jurisdiction to consider the merits of
Sky’s challenge to the Order on Review, then the Court must deny the
petition for review unless Sky demonstrates that the challenged agency action
is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). This “[h]ighly deferential”
standard of review “presumes the validity of agency action.” AT&T Corp. v.
FCC, 220 F.3d 607, 616 (D.C. Cir. 2000). The scope of review “is narrow
and a court is not to substitute its judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(“State Farm”). The agency “must examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’” Ibid. (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)). A court is bound to
“uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Ibid. (quoting Bowman Transp. Inc. v. Arkansas-
Best Freight Sys., 419 U.S. 281, 286 (1974)).
11

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ARGUMENT

I.

THE COURT LACKS JURISDICTION TO CONSIDER
SKY’S CHALLENGE TO THE ORDER ON REVIEW

.

A. Judicial Review Is Precluded by Statute.

Under the Administrative Procedure Act, a person “adversely affected
or aggrieved by agency action within the meaning of the relevant statute” –
here, the Communications Act – “is entitled to judicial review,” 5 U.S.C.
§ 702, “except to the extent that” the relevant statute “preclude[s] judicial
review.” 5 U.S.C. § 701 (emphasis added). “If a no-review provision shields
particular types of administrative action, a court may not inquire whether a
challenged agency decision is arbitrary, capricious, or procedurally-defective,
but it must determine whether the challenged agency action is of the sort
shielded from review.” Amgen Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir.
2004).
As Sky acknowledges, “[t]his case is about the annual regulatory fees
that the FCC charged broadcast television stations for the 2013 fiscal year . . .
under Section 9 of the Communications Act.” Pet. Br. 3. Section 9 requires
the Commission to establish a Schedule of Regulatory Fees, as adjusted or
amended by the Commission, to collect, “during each fiscal year,” “an
amount that can reasonably be expected to equal the amount appropriated [by
Congress] for such fiscal year,” 47 U.S.C. § 159(b)(1), and further provides
12

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that “[i]ncreases or decreases in fees” “made by adjustments” or “made by
amendments” to the Schedule of Regulatory Fees “shall not be subject to
judicial review,” id. § 159(b)(2) & (3).
In accordance with this process, as Sky admits, “[f]or FY 2013, as it
has done historically, the FCC based the amount of the [regulatory] fee
charged to a television station on two factors: the size of the station’s market
and whether the station operates on a VHF or UHF television channel. See
47 C.F.R. § 1.1153.” Pet. Br. 3-4. Specifically, as an outcome of the
agency’s action in the Order on Review, the Schedule of Regulatory Fees set
forth, as relevant here, a regulatory fee of $42,775 for VHF television stations
operating in the same-sized market as Sky. See 28 FCC Rcd at 12400 (JA );
Pet. Br. 5. This fee was an increase of $2,975 over the fee imposed on
stations of the same size in FY 2012. Id. at 12391 (Attachment G) (JA ).
The crux of Sky’s challenge to the Order on Review is that the
agency’s actions in adjusting and amending the Schedule of Regulatory Fees
resulted in Sky being “required to pay higher regulatory fees than justified.”
Pet. Br. 14. Thus, contrary to Sky’s contention (id. at 15), Sky plainly seeks
to have the Court review “an increase . . . in fees” for which it is liable,
judicial review of which is expressly precluded by the Communications Act.
47 U.S.C. § 159(b)(2). In short, “the specific and emphatic statutory
13

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 20 of 48
language” of the Communications Act “prohibit[s] judicial review” here. See
Tex. Alliance for Home Care Servs. v. Sebelius, 681 F.3d 402, 408 (D.C. Cir.
2012).
COMSAT Corp. v. FCC, 114 F.3d 223 (D.C. Cir. 1997), cited by Sky
in its brief (Pet. Br. 15), is not to the contrary. In COMSAT, the Court held
that there was jurisdiction to review a Commission fee decision under Section
9 “[w]here . . . the Commission ha[d] acted outside the scope of its statutory
mandate.” 114 F.3d at 227; see 47 U.S.C. § 159(b)(2) & (3) (precluding
judicial review of increases or decreases in fees made “pursuant to” the
relevant paragraphs). But here, and unlike in COMSAT, there is no question
that the Commission adjusted and amended its regulatory fees in accordance
with Section 9’s grant of its authority to do so, and Sky does not contend
otherwise. Indeed, COMSAT itself acknowledges that “an amendment to
increase the amount of an existing fee – for a statutorily permissible reason –
would be covered by section 9.” 114 F.3d at 227. See also Sw. Airlines Co.
v. TSA, 554 F.3d 1065, 1071 (D.C. Cir. 2009) (likewise recognizing that
under Section 9, “the courts may not review the Commission’s actions where
14

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 21 of 48
the Commission has acted within the scope of its authority under the
4
controlling statute.”) (internal quotation marks omitted).

B. None of the Arguments That Sky Offers in Support of

the Petition for Review Was Raised Before the
Commission.

Even if Section 9 did not preclude this action, under 47 U.S.C. § 405(a)
Sky’s failure to raise its contentions by filing a petition for reconsideration
with the Commission prevents this Court from reaching the merits of Sky’s
claims.
In its brief, “Sky does not dispute that Section 9 requires the
Commission to give Congress 90 days’ notice of certain changes to the
Schedule of Regulatory Fees, such as the decision to charge VHF and UHF
stations the same amount.” Pet. Br. 17. But Sky contends that neither “the
90-day notice requirement” nor “the apparent September 30, 2013 deadline”
would have posed an obstacle to Commission action “had the FCC given
Congress notice when it initiated the proceeding.” Ibid.
But Sky did not make this argument – or the other arguments it offers
in support of its petition for review – to the Commission. Instead, in its

4 The two additional cases on which Sky relies do not discuss Section 9’s
preclusion-of-review provisions at all. See PanAmSat Corp. v. FCC, 198
F.3d 890, 898 (D.C. Cir. 1999); COMSAT Corp. v. FCC, 283 F.3d 344 (D.C.
Cir. 2002).
15

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 22 of 48
comments to the Commission before the Order on Review was adopted, Sky
only made an unadorned request that the Commission’s proposal to eliminate
the disparity between VHF and UHF broadcast television regulatory fees be
“applie[d] to the regulatory fees assessed for FY 2013 and not delayed until
FY 2014.” Sky Comments (June 19, 2013) (JA ). And, while Sky asserted
that there was “no compelling justification” for delaying the implementation
of the reform, Sky nowhere acknowledged the statute’s requirement that
Congress be given 90 days’ notice of any amendment to the Schedule of
Regulatory Fees, nor explained how the Commission could avoid that
requirement’s impact in taking this action. Ibid. Having failed to grapple
with Section 9’s congressional notice requirement before the Commission,
Sky was obliged to file a petition for reconsideration to bring its supporting
arguments on this issue to the Commission’s attention. Because it did not do
so, Sky is now precluded from raising these arguments before the Court. 47
U.S.C. § 405(a) (A petition for reconsideration is “a condition precedent to
judicial review” of an FCC order if it “relies on questions of fact or law upon
which the Commission . . . has been afforded no opportunity to pass.”); see
also In re Core Commc’ns, 455 F.3d 267, 276 (D.C. Cir. 2006) (The Court
“generally lack[s] jurisdiction to review arguments that have not first been
16

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 23 of 48
presented to the Commission.” (internal quotation marks and citation
omitted)).

II.

ON THE MERITS, THE COMMISSION ACTED WELL
WITHIN ITS STATUTORY AUTHORITY AND ITS
DISCRETION WITH RESPECT TO SKY’S CHALLENGE
TO THE ORDER ON REVIEW

.
Even if Sky were to overcome the statutory bar on judicial review,
there would be no basis for the Court to disturb the Commission’s decision.
The Commission acted well within its authority and discretion in revising the
Schedule of Regulatory Fees and, in the Order on Review, the Commission
articulated “a satisfactory explanation for its action.” State Farm, 463 U.S. at
43.
The petition for review concerns two interrelated but distinct actions
the Commission took with respect to revising the Schedule of Regulatory
Fees. First, exercising its authority under Section 9(b)(2), the Commission
adjusted the Schedule in order to assess and collect regulatory fees for fiscal
year 2013, as required by Congress. See, e.g., Order on Review, 28 FCC Rcd
at 12358 ¶ 21 (“Because we are required by statute to set regulatory fees that
will recover the entire amount of our appropriation, any reduction in the
proportion of all regulatory fees paid by licensees in one fee category will
necessarily result in an increase in regulatory fees paid by licensees in
others.”) (JA ). Sky does not challenge this action taken by the Commission.
17

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 24 of 48
Second, exercising its authority under Section 9(b)(3), the Commission
amended the Schedule of Regulatory Fees “[e]ffective FY 2014,” id. at 12361
(JA ), in a manner consistent with its determination that, for the purpose of
assessing and collecting regulatory fees, UHF and VHF television stations
should be reclassified and combined into one new category, digital television
stations. Id. at 12362 ¶ 30 (“[W]e adopt our proposal [beginning in FY 2014]
to combine UHF and VHF full service television station categories into one
fee category.”) (JA ).
Sky challenges the Commission’s decision to implement this second
change in FY 2014 as “unreasonable, arbitrary and capricious.” Pet. Br. 15
(capitalization and boldface omitted); see generally id. at 15-25. That charge
is unfounded. As the Commission explained, “[c]ombining UHF and VHF
full-service television stations into one fee category constitutes a
reclassification of services in the regulatory fee schedule as defined in section
9(b)(3) of the Act, and pursuant to 9(b)(4)(B) must be submitted to Congress
at least 90 days before it becomes effective.” Order on Review, 28 FCC Rcd
at 12362 ¶ 31 (JA ). In light of the statute’s requirement that Congress be
given 90 days’ notice of any amendment of the Schedule, the statutory
provision specifying that fees should be collected “during each fiscal year,”
47 U.S.C. § 159(b)(1)(B), and the fact that the Order on Review was adopted
18

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 25 of 48
less than 90 days before the end of FY 2013, it was entirely reasonable for the
Commission to make the amendment effective in FY 2014.
Sky contends (Pet. Br. 13) that the Commission could have complied
with the 90-day notice requirement, even though the Order on Review was
adopted 53 days before the end of the fiscal year, by providing the requisite
notice to Congress when it initiated the fee reform proceeding in May 2013.
The text of the statute plainly rebuts this argument. Section 9(b)(4)(B)
requires notice to Congress “of any amendment” that is “made” to the
Schedule of Regulatory Fees, not simply one that is proposed. See 47 U.S.C.
§ 159(b)(4)(B) (emphasis added). The relevant amendment was “made” on
August 8, 2013, not when the proposal was first released; indeed, notice to
19

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 26 of 48
Congress before the final determination to amend the Schedule arguably
5
would have entailed prejudging the outcome of the rulemaking proceeding.
Sky also contends that the FCC “could have deferred collection of FY
2013 fees during FY 2013 from VHF stations until after completion of the
90-day notice requirement.” Pet. Br. 23. But Section 9 directs the
Commission to make assessments and adjustments so that the fees assessed
“be established at amounts that will result in collection, during each fiscal
year, of an amount that can reasonably be expected to equal” the amounts
appropriated for the Commission’s regulatory activities. See 47 U.S.C.
§ 159(b)(1)(B) (emphasis added); see also id. § 159(b)(2)(B). Even assuming
Section 9 does not mandate that fees be collected during the fiscal year (cf. id.
§ 159(c)(1)), it is, as Sky acknowledges (Pet. Br. 24), the Commission’s
“established practice” to collect regulatory fees “during a September filing

5 Nor can there be any argument that the Commission was delinquent in
conducting this rulemaking. Congress set the Commission’s budget – and the
amount of regulatory fees it was to collect through this rulemaking
proceeding – on March 26, 2013. Less than two months later, on May 23, the
Commission issued the 52-page FY 2013 NPRM. Comments to the FY 2013
NPRM
were due 27 days later, on June 19, 2013, and reply comments were
due 7 days after that, on June 26, 2013. In order to have provided 90 days’
notice to Congress, the Commission would have had to have reviewed all
comments and reply comments, drafted the Order on Review, and adopted
that order – all within six days. Given the exceptional difficulty of such a
feat, the Commission’s statement in the FY 2013 NPRM that “th[e] proposal,
if adopted, will be implemented in FY 2014,” 28 FCC Rcd at 7805 ¶ 36 (JA
), was an entirely reasonable statement of the obvious.
20

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 27 of 48
window in order to collect the required amount by the end of [its] fiscal
year.” Assessment and Collection of Regulatory Fees for Fiscal Year 2012,
27 FCC Rcd 8390, 8391 (¶ 1) (2012). Sky does not explain how the
Commission could have deferred fees for VHF stations without either
violating the requirement to collect sufficient fees to fund the Commission’s
regulatory activities for FY 2013, or requiring additional collections or
refunds once the new reforms became effective in FY 2014. At a minimum,
in light of the practical and fiscal difficulties of administering such an
alternative, it was reasonable for the Commission to adhere to its established
practice and implement the reforms so as to affect fees only for the fiscal year
in which the reforms became effective. See, e.g., Covad Commc’ns Co. v.
FCC, 450 F.3d 528, 538-39 & n.6 (D.C. Cir. 2006) (“administrability”
concerns are relevant to reasonableness of FCC decisions).
Sky also complains that the Commission “applied the 90-day
requirement inconsistently in the [Order on Review],” and has “ignored” the
requirement “in the past without any consequence.” Pet. Br. 17. Without at
all conceding the truth of Sky’s claims, we submit that they are entirely
irrelevant. The issue in this case is the reasonableness of Commission action
based on compliance with the statutory notice requirement; claims of
21

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 28 of 48
noncompliance in other circumstances and at other times are therefore
6
entirely beside the point.
In the final portion of its brief, Sky recapitulates its contentions as a
claim that the Commission’s decision to reform its broadcast TV regulatory
fees was “unreasonably delayed” – although the Commission has now acted.
Pet. Br. 25-32. This claim adds nothing to Sky’s claim that the
Commission’s decision to implement the reforms in FY 2014 was arbitrary
and capricious, and (if the Court were to reach the merits) fails for the same
reasons.
In sum, if judicial review is not precluded by 47 U.S.C. § 159(b)(2) &
(3) and Sky’s failure to present its arguments to the Commission in the first
instance, the Court should uphold the Commission’s decision to implement

6 We do take the opportunity to note that the FCC’s reallocation of FTEs in
the International Bureau in the Order on Review was not subject to the
statute’s requirement of 90 days’ notice, even though the reallocation may
have “had the effect of non-proportionately decreasing fees for some
regulated entities and increasing fees for others.” Pet. Br. 19. See 28 FCC
Rcd at 12356 ¶ 14 (JA ). Section 9 requires 90 days’ notice to Congress only
where the Commission “amend[s] the Schedule of Regulatory Fees” pursuant
to its authority under Section 9(b)(3). See 47 U.S.C. § 159(b)(4)(B). The
reallocation of International Bureau FTEs was part of an adjustment to the
fees under Section 9(b)(2) “[to more] accurately reflect the regulatory
activities performed by FTEs in the core [FCC] bureaus.” Order on Review,
28 FCC Rcd at 12355 ¶ 14 (JA ); 47 U.S.C. § 159(b)(1)(A). The
Commission therefore was not required to give 90 days’ notice to Congress
before that reallocation became effective.
22

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 29 of 48
its broadcast television regulatory fee reforms in FY 2014 as entirely
reasonable. As the Commission explained, it was unable to provide Congress
the 90 days’ notice required by Section 9 of the Communications Act before
this amendment could become effective prior to the end of FY 2013.

CONCLUSION

The petition for review should be dismissed for lack of jurisdiction. If
not, the petition for review should be denied.
Respectfully
submitted,
WILLIAM J. BAER
JONATHAN B. SALLET
ASSISTANT ATTORNEY GENERAL
ACTING GENERAL COUNSEL


ROBERT B. NICHOLSON
DAVID M. GOSSETT
ADAM D. CHANDLER
ACTING DEPUTY GENERAL
ATTORNEYS
COUNSEL


UNITED STATES
JACOB M. LEWIS
DEPARTMENT OF JUSTICE
ASSOCIATE GENERAL COUNSEL
WASHINGTON, D.C. 20530


/s/ Pamela L. Smith

PAMELA L. SMITH
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
March 31, 2014
23

USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 30 of 48
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


SKY TELEVISION, L.L.C.,
PETITIONER,
v.
NO. 13-1270
F

EDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Brief for Respondents in the captioned case
contains 4,854 words.

/s/ Pamela L. Smith
Pamela L. Smith

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
March 31, 2014



USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 31 of 48










STATUTORY APPENDIX
















Communications Act Provisions:
47 U.S.C. § 159
47 U.S.C. § 405


FCC Rules:
47 C.F.R. § 1.1153 (Effective September 2, 2012-August 22, 2013)
47 C.F.R. § 1.1153 (Effective August 23, 2013-present)








USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 32 of 48
47 U.S.C.

§ 159. Regulatory fees

(a) General authority

(1) Recovery of costs

The Commission, in accordance with this section, shall assess and collect
regulatory fees to recover the costs of the following regulatory activities of the
Commission: enforcement activities, policy and rulemaking activities, user
information services, and international activities.

(2) Fees contingent on appropriations

The fees described in paragraph (1) of this subsection shall be collected only if,
and only in the total amounts, required in Appropriations Acts.

(b) Establishment and adjustment of regulatory fees

(1) In general

The fees assessed under subsection (a) of this section shall--

(A) be derived by determining the full-time equivalent number of employees
performing the activities described in subsection (a) of this section within the
Private Radio Bureau, Mass Media Bureau, Common Carrier Bureau, and other
offices of the Commission, adjusted to take into account factors that are
reasonably related to the benefits provided to the payor of the fee by the
Commission's activities, including such factors as service area coverage, shared
use versus exclusive use, and other factors that the Commission determines are
necessary in the public interest;

2


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 33 of 48
(B) be established at amounts that will result in collection, during each fiscal
year, of an amount that can reasonably be expected to equal the amount
appropriated for such fiscal year for the performance of the activities described
in subsection (a) of this section; and

(C) until adjusted or amended by the Commission pursuant to paragraph (2) or
(3), be the fees established by the Schedule of Regulatory Fees in subsection (g)
of this section.

(2) Mandatory adjustment of schedule

For any fiscal year after fiscal year 1994, the Commission shall, by rule, revise
the Schedule of Regulatory Fees by proportionate increases or decreases to
reflect, in accordance with paragraph (1)(B), changes in the amount appropriated
for the performance of the activities described in subsection (a) of this section for
such fiscal year. Such proportionate increases or decreases shall--

(A) be adjusted to reflect, within the overall amounts described in
appropriations Acts under the authority of paragraph (1)(A), unexpected
increases or decreases in the number of licensees or units subject to payment of
such fees; and

(B) be established at amounts that will result in collection of an aggregate
amount of fees pursuant to this section that can reasonably be expected to equal
the aggregate amount of fees that are required to be collected by appropriations
Acts pursuant to paragraph (1)(B).

Increases or decreases in fees made by adjustments pursuant to this paragraph
shall not be subject to judicial review. In making adjustments pursuant to this
paragraph the Commission may round such fees to the nearest $5 in the case of
fees under $1,000, or to the nearest $25 in the case of fees of $1,000 or more.

(3) Permitted amendments
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In addition to the adjustments required by paragraph (2), the Commission shall,
by regulation, amend the Schedule of Regulatory Fees if the Commission
determines that the Schedule requires amendment to comply with the
requirements of paragraph (1)(A). In making such amendments, the Commission
shall add, delete, or reclassify services in the Schedule to reflect additions,
deletions, or changes in the nature of its services as a consequence of
Commission rulemaking proceedings or changes in law. Increases or decreases in
fees made by amendments pursuant to this paragraph shall not be subject to
judicial review.

(4) Notice to Congress

The Commission shall--

(A) transmit to the Congress notification of any adjustment made pursuant to
paragraph (2) immediately upon the adoption of such adjustment; and

(B) transmit to the Congress notification of any amendment made pursuant to
paragraph (3) not later than 90 days before the effective date of such
amendment.

(c) Enforcement

(1) Penalties for late payment

The Commission shall prescribe by regulation an additional charge which shall
be assessed as a penalty for late payment of fees required by subsection (a) of this
section. Such penalty shall be 25 percent of the amount of the fee which was not
paid in a timely manner.

(2) Dismissal of applications for filings

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USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 35 of 48
The Commission may dismiss any application or other filing for failure to pay in
a timely manner any fee or penalty under this section.

(3) Revocations

In addition to or in lieu of the penalties and dismissals authorized by paragraphs
(1) and (2), the Commission may revoke any instrument of authorization held by
any entity that has failed to make payment of a regulatory fee assessed pursuant
to this section. Such revocation action may be taken by the Commission after
notice of the Commission's intent to take such action is sent to the licensee by
registered mail, return receipt requested, at the licensee's last known address. The
notice will provide the licensee at least 30 days to either pay the fee or show
cause why the fee does not apply to the licensee or should otherwise be waived or
payment deferred. A hearing is not required under this subsection unless the
licensee's response presents a substantial and material question of fact. In any
case where a hearing is conducted pursuant to this section, the hearing shall be
based on written evidence only, and the burden of proceeding with the
introduction of evidence and the burden of proof shall be on the licensee. Unless
the licensee substantially prevails in the hearing, the Commission may assess the
licensee for the costs of such hearing. Any Commission order adopted pursuant
to this subsection shall determine the amount due, if any, and provide the licensee
with at least 30 days to pay that amount or have its authorization revoked. No
order of revocation under this subsection shall become final until the licensee has
exhausted its right to judicial review of such order under section 402(b)(5) of this
title.

(d) Waiver, reduction, and deferment

The Commission may waive, reduce, or defer payment of a fee in any specific
instance for good cause shown, where such action would promote the public
interest.

(e) Deposit of collections
5


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 36 of 48

Moneys received from fees established under this section shall be deposited as an
offsetting collection in, and credited to, the account providing appropriations to
carry out the functions of the Commission.

(f) Regulations

(1) In general

The Commission shall prescribe appropriate rules and regulations to carry out the
provisions of this section.

(2) Installment payments

Such rules and regulations shall permit payment by installments in the case of
fees in large amounts, and in the case of fees in small amounts, shall require the
payment of the fee in advance for a number of years not to exceed the term of the
license held by the payor.

(g) Schedule

Until amended by the Commission pursuant to subsection (b) of this section, the
Schedule of Regulatory Fees which the Federal Communications Commission
shall, subject to subsection (a)(2) of this section, assess and collect shall be as
follows:

SCHEDULE OF REGULATORY FEES


Bureau/Category Annual
Regulatory Fee
Private Radio Bureau

6


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 37 of 48

Exclusive use services (per license)



Land Mobile (above 470 MHz, Base Station and SMRS) (47 CFR
Part
90)
$16

Microwave (47 CFR Part 94)
16

Interactive Video Data Service (47 CFR Part 95)
16
Shared use services (per license unless otherwise noted)
7
Amateur vanity call-signs
7
Mass Media Bureau (per license)


AM radio (47 CFR Part 73)



Class D Daytime
250

Class A Fulltime
900

Class B Fulltime
500

Class C Fulltime
200

Construction permits
100
FM radio (47 CFR Part 73)



Classes C, C1, C2, B
900

Classes A, B1, C3
600

Construction permits
500
TV (47 CFR Part 73)



VHF Commercial

Markets
1
thru
10
18,000


Markets 11 thru 25
16,000


Markets 26 thru 50
12,000


Markets 51 thru 100
8,000

Remaining
Markets
5,000


Construction permits
4,000

UHF Commercial




Markets 1 thru 10
14,400


Markets 11 thru 25
12,800
7


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 38 of 48


Markets 26 thru 50
9,600


Markets 51 thru 100
6,400


Remaining Markets
4,000

Construction
permits
3,200
Low Power TV, TV Translator, and TV Booster (47 CFR Part 74)
135
Broadcast Auxiliary (47 CFR Part 74)
25
International (HF) Broadcast (47 CFR Part 73)
200
Cable Antenna Relay Service (47 CFR Part 78)
220
Cable Television System (per 1,000 subscribers) (47 CFR Part 76)
370
Common Carrier Bureau


Radio Facilities



Cellular Radio (per 1,000 subscribers) (47 CFR Part 22)
60

Personal Communications (per 1,000 subscribers) (47 CFR)
60

Space Station (per operational station in geosynchronous



orbit) (47 CFR Part 25)
65,000

Space Station (per system in low-earth orbit) (47 CFR Part 25)
90,000

Public Mobile (per 1,000 subscribers) (47 CFR Part 22)
60

Domestic Public Fixed (per call sign) (47 CFR Part 21)
55

International Public Fixed (per call sign) (47 CFR Part 23)
110
Earth Stations (47 CFR Part 25)



VSAT and equivalent C-Band antennas (per 100 antennas)
6

Mobile satellite earth stations (per 100 antennas)
6

Earth station antennas




Less than 9 meters (per 100 antennas)
6


9 Meters or more




Transmit/Receive and Transmit Only (per meter)
85


Receive only (per meter)
55
Carriers



Inter-Exchange Carrier (per 1,000 presubscribed access lines)
60
8


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 39 of 48

Local Exchange Carrier (per 1,000 access lines)
60

Competitive access provider (per 1,000 subscribers)
60

International circuits (per 100 active 64KB circuit or equivalent)
220
(h) Exceptions

The charges established under this section shall not be applicable to (1)
governmental entities or nonprofit entities; or (2) to amateur radio operator licenses
under part 97 of the Commission's regulations (47 C.F.R. Part 97).

(i) Accounting system

The Commission shall develop accounting systems necessary to making the
adjustments authorized by subsection (b)(3) of this section. In the Commission's
annual report, the Commission shall prepare an analysis of its progress in
developing such systems and shall afford interested persons the opportunity to
submit comments concerning the allocation of the costs of performing the
functions described in subsection (a) of this section among the services in the
Schedule.






9


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 40 of 48
§ 405. Petition for reconsideration; procedure; disposition; time of filing;
additional evidence; time for disposition of petition for reconsideration of
order concluding hearing or investigation; appeal of order

(a) After an order, decision, report, or action has been made or taken in any
proceeding by the Commission, or by any designated authority within the
Commission pursuant to a delegation under section 155(c)(1) of this title, any party
thereto, or any other person aggrieved or whose interests are adversely affected
thereby, may petition for reconsideration only to the authority making or taking the
order, decision, report, or action; and it shall be lawful for such authority, whether
it be the Commission or other authority designated under section 155(c)(1) of this
title, in its discretion, to grant such a reconsideration if sufficient reason therefor be
made to appear. A petition for reconsideration must be filed within thirty days
from the date upon which public notice is given of the order, decision, report, or
action complained of. No such application shall excuse any person from complying
with or obeying any order, decision, report, or action of the Commission, or
operate in any manner to stay or postpone the enforcement thereof, without the
special order of the Commission. The filing of a petition for reconsideration shall
not be a condition precedent to judicial review of any such order, decision, report,
or action, except where the party seeking such review (1) was not a party to the
proceedings resulting in such order, decision, report, or action, or (2) relies on
questions of fact or law upon which the Commission, or designated authority
within the Commission, has been afforded no opportunity to pass. The
Commission, or designated authority within the Commission, shall enter an order,
with a concise statement of the reasons therefor, denying a petition for
reconsideration or granting such petition, in whole or in part, and ordering such
further proceedings as may be appropriate: Provided, That in any case where such
petition relates to an instrument of authorization granted without a hearing, the
Commission, or designated authority within the Commission, shall take such
action within ninety days of the filing of such petition. Reconsiderations shall be
governed by such general rules as the Commission may establish, except that no
evidence other than newly discovered evidence, evidence which has become
available only since the original taking of evidence, or evidence which the
Commission or designated authority within the Commission believes should have
been taken in the original proceeding shall be taken on any reconsideration. The
time within which a petition for review must be filed in a proceeding to which
section 402(a) of this title applies, or within which an appeal must be taken under
section 402(b) of this title in any case, shall be computed from the date upon which
the Commission gives public notice of the order, decision, report, or action
complained of.
10


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 41 of 48

(b)(1) Within 90 days after receiving a petition for reconsideration of an order
concluding a hearing under section 204(a) of this title or concluding an
investigation under section 208(b) of this title, the Commission shall issue an order
granting or denying such petition.
(2) Any order issued under paragraph (1) shall be a final order and may be
appealed under section 402(a) of this title.




11


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 42 of 48

47 C.F.R.

Effective: September 4, 2012 to August 22, 2013
Subpart G. Schedule of Statutory Charges and Procedures for Payment
§ 1.1153 Schedule of annual regulatory fees and filing locations for mass
media services.


Fee amount
Address


Radio [AM and FM] (47 CFR part 73):


1. AM Class A:


< = 25,000 population
$725 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
1,475
75,001-150,000 population
2,200
150,001-500,000 population
3,300
500,001-1,200,000 population
4,775
1,200,001-3,000,000 population
7,350
>3,000,000 population
8,825
2. AM Class B:


< = 25,000 population
600 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
1,225
75,001-150,000 population
1,525
150,001-500,000 population
2,600
500,001-1,200,000 population
3,975
1,200,001-3,000,000 population
6,100
>3,000,000 population
7,325
3. AM Class C:


< = 25,000 population
550 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
850
75,001-150,000 population
1,125
12


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 43 of 48
150,001-500,000 population
1,675
500,001-1,200,000 population
2,800
1,200,001-3,000,000 population
4,200
>3,000,000 population
5,325
4. AM Class D:


< = 25,000 population
625 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
950
75,001-150,000 population
1,600
150,001-500,000 population
1,900
500,001-1,200,000 population
3,175
1,200,001-3,000,000 population
5,075
>3,000,000 population
6,350
5. AM Construction Permit
550 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
6. FM Classes A, B1 and C3:


< = 25,000 population
700 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
1,425
75,001-150,000 population
1,950
150,001-500,000 population
3,025
500,001-1,200,000 population
4,800
1,200,001-3,000,000 population
7,800
>3,000,000 population
9,950
7. FM Classes B, C, C0, C1 and C2:


< = 25,000 population
875 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
25,001-75,000 population
1,550
75,001-150,000 population
2,875
150,001-500,000 population
3,750
500,001-1,200,000 population
5,525
1,200,001-3,000,000 population
8,850
>3,000,000 population
11,500
8. FM Construction Permits
700 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
13


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 44 of 48
TV (47 CFR, part 73) VHF Commercial:

1. Markets 1 thru 10
80,075 FCC, Radio, P.O. Box 979084, St.
Louis, MO 63197-9000.
2. Markets 11 thru 25
73,475
3. Markets 26 thru 50
39,800
4. Markets 51 thru 100
20,925
5. Remaining Markets
5,825
6. Construction Permits
5,825
UHF Commercial:


1. Markets 1 thru 10
35,350 FCC, UHF Commercial, P.O. Box
979084, St. Louis, MO 63197-9000.
2. Markets 11 thru 25
32,625
3. Markets 26 thru 50
21,925
4. Markets 51 thru 100
12,750
5. Remaining Markets
3,425
6. Construction Permits
3,425
Satellite UHF/VHF Commercial:


1. All Markets
1,425 FCC Satellite TV, P.O. Box 979084,
St. Louis, MO 63197-9000.
2. Construction Permits
895
Low Power TV, Class A TV, TV/FM
385 FCC, Low Power, P.O. Box 979084,
Translator, & TV/FM Booster (47 CFR
St. Louis, MO 63197-9000.
part 74)
Broadcast Auxiliary
10 FCC, Auxiliary, P.O. Box 979084, St.
Louis, MO 63197-9000.




14


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 45 of 48
Effective: August 23, 2013
Subpart G. Schedule of Statutory Charges and Procedures for Payment
§ 1.1153 Schedule of annual regulatory fees and filing locations for mass
media services.



Fee amount
Address

Radio [AM and FM] (47 CFR part 73)


1. AM Class A



<=25,000 population
$775 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
1,550

75,001-150,000 population
2,325

150,001-500,000 population
3,475

500,001-1,200,000 population
5,025

1,200,001-3,000,000
7,750
population

>3,000,000 population
9,300
2. AM Class B



<=25,000 population
645 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
1,300

75,001-150,000 population
1,625

150,001-500,000 population
2,750

500,001-1,200,000 population
4,225

1,200,001-3,000,000
6,500
population

>3,000,000 population
7,800
3. AM Class C



<=25,000 population
590 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
900

75,001-150,000 population
1,200
15


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 46 of 48

150,001-500,000 population
1,800

500,001-1,200,000 population
3,000

1,200,001-3,000,000
4,500
population

>3,000,000 population
5,700
4. AM Class D



<=25,000 population
670 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
1,000

75,001-150,000 population
1,675

150,001-500,000 population
2,025

500,001-1,200,000 population
3,375

1,200,001-3,000,000
5,400
population

>3,000,000 population
6,750
5. AM Construction Permit
590 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.
6. FM Classes A, B1 and C3



<=25,000 population
750 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
1,500

75,001-150,000 population
2,050

150,001-500,000 population
3,175

500,001-1,200,000 population
5,050

1,200,001-3,000,000
8,250
population

>3,000,000 population
10,500
7. FM Classes B, C, C0, C1 and C2



<=25,000 population
925 FCC, Radio, P.O. Box
979084, St. Louis, MO 63197-
9000.

25,001-75,000 population
1,625

75,001-150,000 population
3,000

150,001-500,000 population
3,925
16


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 47 of 48

500,001-1,200,000 population
5,775

1,200,001-3,000,000
9,250
population

>3,000,000 population
12,025
8. FM Construction Permits
750 FCC, Radio, P.O. Box
979084, St. Louis, MO, 3197-
9000.
TV (47 CFR, part 73) VHF Commercial



1. Markets 1 thru 10
86,075 FCC, TV Branch, P.O. Box
979084, St. Louis, MO 63197-
9000.

2. Markets 11 thru 25
78,975

3. Markets 26 thru 50
42,775

4. Markets 51 thru 100
22,475

5. Remaining Markets
6,250

6. Construction Permits
6,250
UHF Commercial



1. Markets 1 thru 10
38,000 FCC,UHF Commercial, P.O.
Box 979084, St. Louis, MO
63197-9000.

2. Markets 11 thru 25
35,050

3. Markets 26 thru 50
23,550

4. Markets 51 thru 100
13,700

5. Remaining Markets
3,675

6. Construction Permits
3,675
Satellite UHF/VHF Commercial



1. All Markets
1,525 FCC Satellite TV, P.O. Box
979084, St. Louis, MO 63197-
9000.

2. Construction Permits
960
Low Power TV, Class A TV, TV/FM Translator, & TV/FM
410 FCC, Low Power, P.O. Box
Booster (47 CFR part 74)
979084, St. Louis, MO 63197-
9000.
Broadcast Auxiliary
10 FCC, Auxiliary, P.O. Box
979084, St. Louis, MO 63197-
9000.


17


USCA Case #13-1270 Document #1486315 Filed: 03/31/2014 Page 48 of 48
13-1270

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



Sky Television, LLC
Petitioner

v.

Federal Communications Commission
and United States of America
Respondents


CERTIFICATE OF SERVICE



I, Pamela Smith, hereby certify that on March 31, 2014, I electronically filed
the foregoing Brief for Respondents with the Clerk of the Court for the
United States Court of Appeals for the D.C. Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
served by the CM/ECF system.

Meredith S. Senter, Jr.
Adam D. Chandler
S. Jenell Trigg
Robert B. Nicholson
Lerman Senter, PLLC
U.S. Department of Justice
2000 K Street, N.W.
Antitrust Division
Suite 600
950 Pennsylvania Ave., N.W.
Washington, D.C. 20006
Room 3224
Counsel for: Sky Television, LLC
Washington, D.C. 20530
Counsel for: USA





/s/ Pamela Smith

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