Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

PMCM TV, LLC v. FCC, No. 11-1330 (D.C. Cir.)

Download Options

Released: February 2, 2012
ORAL ARGUMENT NOT YET SCHEDULED
USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 1 of 89
BRIEF FOR APPELLEE
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1330
PMCM TV, LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL FROM AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
RICHARD K. WELCH
DEPUTY ASSOCIATE GENERAL COUNSEL
LAURENCE N. BOURNE
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 2 of 89

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

1. Parties.
All parties, intervenors, and amici appearing in this Court and before
the Commission are listed in the appellant’s brief.
2. Ruling under review.
Reallocation of Channel 2 from Jackson, Wyoming to Wilmington,
Delaware and Reallocation of Channel 3 from Ely, Nevada to Middletown
Township, New Jersey, Memorandum Opinion and Order, 26 FCC Rcd 13696
(2011) (J.A. 196).
3. Related cases.
This case has not previously been before this Court. We are not aware
of any related case pending before this Court or any other Court.

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 3 of 89

TABLE OF CONTENTS

Table of Contents .............................................................................................. i
Table of Authorities.......................................................................................... ii
Glossary.............................................................................................................v
JURISDICTION................................................................................................1
STATEMENT OF ISSUE .................................................................................2
COUNTERSTATEMENT ................................................................................4
I.
REGULATORY BACKGROUND ...........................................................4
II. PMCM’S PROPOSAL TO MOVE ITS VHF STATIONS
TO NEW JERSEY AND DELAWARE....................................................9
A.
PMCM’s “Reallocation” Requests........................................................9
B.
This Court’s Dismissal of PMCM’s Petition For A Writ
of Mandamus .......................................................................................14
C.
The Order On Review.........................................................................15
D.
Other Developments............................................................................18
SUMMARY OF ARGUMENT ......................................................................18
ARGUMENT ..................................................................................................20
I.
THE ORDER IS REVIEWED UNDER DEFERENTIAL
STANDARDS..........................................................................................20
II. THE COMMISSION’S READING OF SECTION 331(a)
COMPORTS WITH THE TEXT, STRUCTURE,
PURPOSES, AND LEGISLATIVE HISTORY OF THAT
PROVISION. ...........................................................................................22
CONCLUSION ...............................................................................................42
i

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 4 of 89

TABLE OF AUTHORITIES

CASES

*
Alarm Indus. Commc’ns Comm. v. FCC, 131 F.3d
1066 (D.C. Cir. 1997)........................................................................... 24, 37
American Family Ass’n v. FCC, 365 F.3d 1156
(D.C. Cir. 2004)...........................................................................................40
AT&T Corp. v. FCC, 317 F.3d 227 (D.C. Cir. 2003) .....................................40
*
Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044 (D.C.
Cir. 1997)............................................................................ 22, 24, 35, 36, 37
California Metro Mobile Commc’ns, Inc. v. FCC,
365 F.3d 38 (D.C. Cir. 2004) ......................................................................24
Cassel v. FCC, 154 F.3d 478 (D.C. Cir. 1998) ...............................................24
Chevron USA v. Natural Resources Defense
Council, 467 U.S. 837 (1984) ........................................................ 21, 23, 24
In re PMCM TV, LLC, Order, D.C. Circuit No. 10-
1001 (filed May 12, 2010)...........................................................................16
*
Multi-State Commc’ns, Inc. v. FCC, 728 F.2d 1519
(D.C. Cir. 1984)...................................................................... 8, 9, 43, 44, 45
*
Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440
(1989) ............................................................................................. 22, 29, 46
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ........................................39
Worldcom Network Servs., Inc. v. FCC, 274 F.3d
542 (D.C. Cir. 2001)....................................................................................25

ADMINISTRATIVE DECISIONS

Advanced Television Systems and Their Impact
Upon the Existing Television Broadcast Service,
23 FCC Rcd 4220 (2008) ............................................................................28
Advanced Television Systems and Their Impact
Upon the Existing Television Broadcast Service,
Sixth Report and Order, 12 FCC Rcd 14588
(1997) ..........................................................................................................10
ii

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 5 of 89
Amendment of Section 3.606 of the Commission’s
Rules and Regulations, Sixth Report and Order,
41 F.C.C. 148 (1952).....................................................................................5
Amendment of Section 73.606(b), Table of
Allotments, Television Broadcast Stations
(Montrose and Scranton, Pennsylvania)
, 3 FCC
Rcd 1061 (Media Bur. 1988).......................................................................28
Amendment of Section 73.606(b), Table of
Allotments, TV Broadcast Stations (Snyder,
Texas)
, 6 FCC Rcd 5791 (1991)..................................................................28
Amendment of Section 73.606(b), Table of
Assignments, Television Broadcast Stations
(Riverside and Santa Anna, California)
, 65 FCC
2d 920 (1977) ................................................................................................6
Amendment of Section 73.622(i), Post-Transition
Table of DTV Allotments, Television Broadcast
Stations (Atlantic City, New Jersey)
, Notice of
Proposed Rulemaking, 24 FCC Rcd 14601
(Media Bur. 2009) .......................................................................................13
Amendment of Section 73.622(i), Post-Transition
Table of DTV Allotments, Television Broadcast
Stations (Atlantic City, New Jersey)
, Report and
Order, 25 FCC Rcd 2606 (Video Div., Media
Bur. 2010)....................................................................................................18
Amendment of Section 73.622(i), Post-Transition
Table of DTV Allotments, Television Broadcast
Stations (Seaford, Delaware)
, Notice of Proposed
Rulemaking, 24 FCC Rcd 14596 (Media Bur.
2009)............................................................................................................13
Amendment of Section 73.622(i), Post-Transition
Table of DTV Allotments, Television Broadcast
Stations (Seaford, Delaware)
, Report and Order
25 FCC Rcd 4466 (Video Div., Media Bur. 2010) .....................................18
Modification of FM and TV Authorizations to
Specify a New Community of License, 4 FCC Rcd
4870 (1989) .................................................................................................38
iii

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 6 of 89
Oversight of the Radio and TV Broadcast Rules, 1
FCC Rcd 849 (Media Bur. 1986) ................................................................28
Petition for Inquiry into the Need for Adequate
Television Service for the State of New Jersey, 58
FCC 2d 790 (1976)......................................................................................27
Petition to Reallocate VHF Television Channel 9
from New York, New York, to a City Within the
City Grade Contour of Station WOR-TV,
Report
and Order, 53 Rad.Reg. 2d (P&F) 469 (1983) ................................... 8, 9, 39
Petition to Reallocate VHF-TV Channel 9 from New
York, New York, to a City Within the City Grade
Contour of WOR-TV
, 84 FCC 2d 280 (1981) .............................................30
SRC, Inc., San Angelo, TX, 21 FCC 2d 901 (1970) ........................................27

STATUTES AND REGULATIONS

47 C.F.R. § 73.610(b)(1) .................................................................................28
47 C.F.R. § 74.702(b)......................................................................................12
47 U.S.C. § 272 ...............................................................................................31
47 U.S.C. § 307(b)...................................................................................... 4, 16
47 U.S.C. § 309(a).............................................................................................5
47 U.S.C. § 309(j) .............................................................................................6
*
47 U.S.C. § 331(a)................................... 2, 7, 8, 10, 11, 12, 13, 14, 16, 18, 22,
........................................... 23, 24, 25, 26, 30, 31, 32, 33, 34, 38, 39, 40, 41
47 U.S.C. § 402(b).............................................................................................1
47 U.S.C. § 405(a).................................................................................... 20, 35

OTHERS

128 Cong. Rec., S10946 (Aug. 19, 1982) .......................................................29
H.R. Rep. No. 760, 97th Cong., 2d Sess. 690
(1982), reprinted in 1982 U.S.C.C.A.N. 1453 ............................................29
* Cases and other authorities principally relied upon are marked with
asterisks.

iv

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 7 of 89

GLOSSARY

BOC
Bell
Operating
Company
Br.





Brief
Commission or FCC


Federal Communications Commission
DTV
Digital
Television
J.A.
Joint
Appendix
LPTV
Low
Power
Television
Nave
Nave
Broadcasting,
LLC
PMCM PMCM
TV,
LLC
UHF
Ultra High Frequency (TV Channels
14-69)
VHF
Very
High
Frequency
(TV
Channels

2-13)
v

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 8 of 89
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 11-1330
PMCM TV, LLC,
APPELLANT,
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
ON APPEAL FROM AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF FOR APPELLEE

JURISDICTION

The Order on appeal was released on September 15, 2011.
Reallocation of Channel 2 from Jackson, Wyoming to Wilmington, Delaware
and Reallocation of Channel 3 from Ely, Nevada to Middletown Township,
New Jersey, Memorandum Opinion and Order, 26 FCC Rcd 13696 (2011)
(J.A. 196) (“Order”). Appellant PMCM TV, LLC (“PMCM”) filed its notice
of appeal on September 21, 2011. This Court’s jurisdiction rests on 47
U.S.C. § 402(b).

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 9 of 89

STATEMENT OF ISSUE

In this case, appellant PMCM, a licensee of two very high frequency
(“VHF”) television channels in Nevada and Wyoming, asked the Federal
Communications Commission (“Commission” or “FCC”) to grant the cross-
country “reallocation” of those two channels to New Jersey and Delaware.
Invoking a statute that had been applied only once before in its nearly 30-year
history – when the FCC in 1983 approved a request by a New York City
station to change its community of license to suburban New Jersey without
moving its transmission facilities – PMCM argued that the Commission was
required to move the VHF channels pursuant to section 331(a) of the
Communications Act, 47 U.S.C. § 331(a).
The first sentence of that provision directs the Commission to
“allocate” commercial VHF channels (i.e., channels licensed for commercial
use, as opposed to noncommercial educational use) so that each state has at
least one such channel “if technically feasible.” Id. The next sentence
provides, without any mention of technical feasibility, that “the Commission
shall, notwithstanding any other provision of law,” order the “reallocation” of
a licensee’s VHF channel to an unserved state if that licensee “notifies” the
Commission that it agrees to such reallocation. Id. PMCM argued that the
statute stripped the Commission of all discretion to consider its two relocation
2

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 10 of 89
requests, confining the agency to the purely ministerial role of approving
PMCM’s requested move of the VHF channels. According to PMCM, the
statute requires such a result, even though it would permit PMCM to abandon
service to viewers of the existing Nevada and Wyoming stations and to move
its operations thousands of miles – without any FCC inquiry into whether the
move is in the public interest and without any consideration of whether the
moved stations’ operation in their new locations would interfere with the
signals of existing stations.
The Commission denied PMCM’s requests. Based on the text,
structure, purposes, and legislative history of section 331(a), the Commission
concluded that the second sentence of that provision (on which PMCM
relied) applies only where an existing channel allocation precludes a new
allocation of the same channel to an unserved state due to concerns about
signal interference. Here, it is undisputed that PMCM’s existing channel
allocations (for locations thousands of miles from New Jersey and Delaware)
do not have that preclusive effect. Thus, the licensee’s requested moves were
not required by section 331(a).
The case presents a single question for the Court’s review: Whether
the Commission reasonably construed section 331(a) of the Communications
3

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 11 of 89
Act when it denied PMCM’s requests to move its Nevada and Wyoming
stations to New Jersey and Delaware.

COUNTERSTATEMENT

I.

REGULATORY BACKGROUND

Section 307(b) of the Communications Act, 47 U.S.C. § 307(b),
provides, in general, that when the Commission exercises its authority to
grant, renew, or modify station licenses in the public interest, it “shall make
such distribution of licenses, frequencies, hours of operation, and of power
among the several States and communities as to provide a fair, efficient, and
equitable distribution of radio service to each of the same.”
To fulfill that mandate, the Commission long ago established the
following criteria (in descending order of priority) for allotting television
broadcast licenses: (1) “[t]o provide at least one television service to all parts
of the United States;” (2) “[t]o provide each community with at least one
television broadcast station;” (3) “[t]o provide a choice of at least two
television services to all parts of the United States;” (4) “[t]o provide each
community with at least two television stations;” and (5) to assign any
remaining channels to communities based on population, geographic location,
and the number of television services available to the community from
stations located in other communities. Amendment of Section 3.606 of the
4

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 12 of 89
Commission’s Rules and Regulations, Sixth Report and Order, 41 F.C.C. 148,
167 (¶ 63) (1952) (“Television Assignments Sixth R&O”).
New channel allotments applying these settled priorities customarily
are made after notice-and-comment rulemaking proceedings and a public
interest finding by the Commission that the allotment to the community
1
would further the policy goals of section 307(b). These goals reflect
Congress’s intent “to create a nationwide, locally oriented system of
broadcasting in which broadcasters are expected to serve the needs and
interests of their communities.” Order ¶ 19 (J.A. 204). The Commission’s
rules implementing section 307(b) likewise are designed to ensure
broadcasters will not create radio interference for other stations, “as
interference would deprive stations and their viewers of the full benefit of the
allocated spectrum.” Id. (J.A. 204-05).
Established Commission policy further provides that “when a
frequency becomes available to a community for the first time, ‘the proper
procedure to follow in such cases is to allow applications to be filed under’”
47 U.S.C. § 309(a), which provides for the grant of license applications when
“the public interest, convenience and necessity will be served” thereby.

1 Letter from William T. Lake, Chief, Media Bureau, to PMCM TV, LLC,
24 FCC Rcd 14588, at page 3 (Media Bur. 2009) (“Bureau Order”) (J.A.
122) (citing Television Assignments Sixth R&O, 41 F.C.C. at 167).
5

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 13 of 89
Bureau Order at 3 (J.A. 122) (quoting Amendment of Section 73.606(b),
Table of Assignments, Television Broadcast Stations (Riverside and Santa
Anna, California), 65 FCC 2d 920, 921, 924 (1977)). That is because “the
resulting ‘opportunity for competing filings . . . allows [the Commission] to
select the applicant which will best serve the public interest.’” Ibid. Under
current law, when more than one party files an application for a channel, that
selection is made through competitive bidding pursuant to 47 U.S.C. § 309(j).
Order ¶ 19 (J.A. 204-05).
Once a station is in operation, subsequent proposals that would result
in withdrawal of service from a community “have long been considered to be
prima facie inconsistent with the public interest. Order ¶ 20 & n.62 (J.A.
206); Bureau Order at 6 & n.30 (J.A. 125-26) (cataloguing precedent).
Accordingly, such proposals generally “must be supported by a strong
showing of countervailing public interest benefits.” Order ¶ 20 n.62 (J.A.
206).
By the 1950s, all available commercial VHF channels (TV channels 2
through 13) had been allotted to East Coast metropolitan areas, including
New York City, Philadelphia, and Baltimore. Order ¶ 3 (J.A. 197). VHF
signals cover large areas, and the Commission’s rules therefore establish
minimum distance separation requirements to ensure that the VHF channels
6

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 14 of 89
are technically feasible – i.e., do not cause harmful interference with other
allotted stations. Order ¶ 3 & nn.5 & 6 (J.A. 197). As a consequence, given
the VHF allotments already made to other East Coast communities, it was not
technically feasible to allocate any commercial VHF channels to either New
Jersey or Delaware. Id.
In 1982, Congress enacted section 331(a) of the Communications Act,
47 U.S.C. § 331(a). That two-sentence provision, introduced by Senator
Bradley to help remedy the absence at that time of any VHF commercial
2
television stations in his home state of New Jersey, provides, in the first
sentence, that the Commission’s policy shall be “to allocate channels” for
VHF commercial television broadcasting to ensure that at least one such
channel is “allocated to each State, if technically feasible.” 47 U.S.C.
§ 331(a). The second sentence states, without express reference to technical
feasibility, that “[i]n any case” in which a commercial VHF station licensee
“notifies the Commission” that it will “agree to the reallocation of its
channel” to a community in an unserved state, the Commission “shall,
notwithstanding any other provision of law, order such reallocation. . . .”
Ibid.

2 Multi-State Commc’ns, Inc. v. FCC, 728 F.2d 1519, 1521, 1523-24 (D.C.
Cir. 1984).
7

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 15 of 89

Prior to the events leading to this case, section 331(a) had been invoked
only once in 30 years – immediately after it was enacted. RKO General, Inc.
(“RKO”), the licensee of WOR-TV, Channel 9, New York, N.Y., was in the
midst of a comparative license renewal proceeding at the time section 331(a)
was enacted in 1982.3 Because the “reallocation” procedure set forth in the
second sentence of section 331(a) enabled RKO to avoid the risk of losing its
license for WOR-TV to a competing applicant, RKO “notified the
Commission . . . that it agree[d] to the requirements of Section 331” and
that it would “relocate its main studio to Secaucus, New Jersey,” while “its
transmitter w[ould] remain atop the World Trade Center in New York City,”
thereby allowing RKO to continue broadcasting within its existing coverage
area. Petition to Reallocate VHF Television Channel 9 from New York, New
York, to a City Within the City Grade Contour of Station WOR-TV, Report
and Order, 53 Rad.Reg. 2d (P&F) 469, 470 (¶ 2) (1983) (“WOR-TV
Reallocation Order”), aff’d, Multi-State Commc’ns, 728 F.2d 1519. The
Commission granted the reallocation request in those circumstances, giving
New Jersey “a first commercial VHF station,” and “moot[ing] the competing

3 Under the procedures in existence at the time, the filing of mutually
exclusive applications for a license at the end of its term required comparative
hearings to determine which applicant was better qualified. Among other
things, such hearings could consider financial and character qualification
issues. Multi-State Commc’ns, 728 F.2d at 1521.
8

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 16 of 89
application” that was pending in the comparative proceeding. Id. at 470, 471
(¶¶ 2, 6).

II.

PMCM’S PROPOSAL TO MOVE ITS VHF STATIONS TO
NEW JERSEY AND DELAWARE

A. PMCM’s “Reallocation” Requests

Pursuant to the DTV Delay Act, Pub. L. No. 111-4, 123 Stat. 112
(2009), full-power television stations were required to cease providing analog
television service by June 13, 2009, and the Commission was directed to
terminate all full-power analog television licenses. To accomplish this
directive, the Commission established a multi-step process by which stations
elected channels for post-transition digital television (“DTV”) operations.
See Order ¶ 6 n. 21 (J.A. 199).
On June 13, 2009, when WWOR-TV (formerly, WOR-TV) ceased
operations on its analog Channel 9 as part of the DTV transition, New Jersey
once again was left without a VHF commercial station. Order ¶ 6 (J.A. 199).
The state of Delaware also lacked a VHF commercial station. At the same
time, because WWOR-TV and other stations in the region had vacated their
analog VHF channels in favor of digital Ultra-High Frequency (“UHF”)
9

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 17 of 89
4
channels, it became technically possible to allocate new VHF channels to
both New Jersey and Delaware under the first sentence of section 331(a),
without causing harmful interference to existing stations. Order ¶ 24 (J.A.
208).
On June 15, 2009, PMCM filed with the FCC “notifications” pursuant
to section 331(a) asking the Commission to move to the East Coast two
stations in the western United States that PMCM had recently acquired.
Specifically, PMCM sought to move VHF Station KVNV(TV), Channel 3, in
Ely, Nevada, to Middletown Township, New Jersey, and VHF Station
5
KJWY, Channel 2, in Jackson, Wyoming, to Wilmington, Delaware.
PMCM claimed entitlement to these cross-country moves because neither
New Jersey nor Delaware had any operational VHF commercial broadcast

4 Since June 12, 2009, a number of television stations in urbanized areas
have requested the substitution of UHF channels for their assigned post-
transition VHF channels because the “technical advantages of analog VHF
channels . . . no longer exist in the current digital environment.” Bureau
Order
at 8 (J.A. 127) (citing Advanced Television Systems and Their Impact
Upon the Existing Television Broadcast Service
, Sixth Report and Order, 12
FCC Rcd 14588, 14627 (1997)). For example, some VHF channels are
subject to “higher ambient noise levels due to leaky power lines, vehicle
ignition systems, and other impulse noise sources.” 12 FCC Rcd at 14627.
5 Letter from Donald J. Evans and Harry F. Cole to FCC Secretary (June
15, 2009) (“KVNV Application”) (J.A. 9); Letter from Donald J. Evans and
Harry F. Cole to FCC Secretary (June 15, 2009) (“KJWY Application”) (J.A.
17).
10

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 18 of 89
stations as of that date. KVNV Application at 2 (J.A. 10); KJWY
Application at 1 (J.A. 17).
Nave Broadcasting, LLC (“Nave”), the licensee of Station WKOB-LP
6
in New York City, objected to the notifications. Nave asserted that moving
PMCM’s channels to New Jersey and Delaware would cause “massive
interference” with stations in New York and Philadelphia, including its own
station WKOB. Nave Objection at 4 (J.A. 43). Nave also argued that
PMCM’s recent acquisitions of the Nevada and Wyoming stations evinced an
attempt “intentionally [to] subvert[] a section of the Communications Act
[section 331(a)] to its own financial advantage.” Id. at 2 (J.A. 41).
Specifically, Nave pointed out that PMCM had finalized its acquisition of
Station KJWY just three days before filing its application to move that station
to Delaware. Id. Nave also asserted that PMCM’s application to acquire that
station did not provide the FCC or interested persons any notice that PMCM
intended only to provide “very short-term service to [the Jackson, Wyoming]
community.” Id. Nave similarly asserted that PMCM had purchased Nevada
Station KVNV only seven months before submitting its move request. Id. at
2-3 (J.A. 41-42). According to Nave, “[t]he object of Section 331 was to

6 Consolidated Informal Objection to Notifications (Dec. 4, 2009) (J.A. 34)
(“Nave Objection”).
11

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 19 of 89
make it easier for a New York VHF station to relocate to New Jersey without
relocating its transmitter site,” not to move broadcasting facilities thousands
of miles, leaving the existing community of license without service and
causing harmful interference in the new community. Id. at 9 (J.A. 48); see
generally id. at 4-9, 16-18 (J.A. 43-48, 55-57). In this regard, Nave asserted
that PMCM’s proposed moves would “result in the complete loss of
television service to residents of Ely, Nevada and Jackson, Wyoming.” Id. at
17 (J.A. 56).
PMCM, in response, “acknowledge[d] that its operations in Delaware
and New Jersey will negatively impact LPTV [low power television] stations
in the vicinity,” but asserted that such stations, “by operation of law, must
7
accept any such interference from a full service station.” PMCM argued
that section 331(a) left the Commission no discretion but to approve PMCM’s
requests and grant it new licenses to operate stations in New Jersey and
Delaware. Id. at 2-3 (J.A. 97-98).
On December 18, 2009, the Commission’s Media Bureau denied
PMCM’s requests. Bureau Order (J.A. 120). Addressing the text, purpose,
structure, and legislative history of section 331(a), the Bureau concluded that

7 Letter from Donald J. Evans and Harry F. Cole to FCC Secretary, at 5
(Dec.12, 2009) (J.A. 100) (citing 47 C.F.R. § 74.702(b)) (“PMCM
Response”).
12

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 20 of 89
the direction to “reallocat[e]” channels in the second sentence of that
provision was most reasonably interpreted “to mean the shifting of a channel
allocation from one community to another community under circumstances
where the channel cannot be used simultaneously at both locations due to
interference concerns.” Bureau Order at 6 (J.A. 125). By contrast, PMCM’s
operation of stations in Nevada and Wyoming did not preclude the FCC from
allocating the same channels (3 and 2, respectively) in New Jersey or
Delaware, and thus its requested moves were not governed by the reallocation
procedure set forth in the second sentence of section 331(a). Bureau Order at
8 (J.A. 127).
While denying PMCM’s requests, the Bureau simultaneously initiated
rulemaking proceedings – consistent with normal allotment processes – to
allot Channel 4 to Atlantic City, New Jersey and Channel 5 to Seaford,
8
Delaware. Id. The Bureau found that such action – which had become
possible because stations in the region recently had vacated their VHF
channels in favor of UHF channels as part of the DTV transition (see Order

8 See Amendment of Section 73.622(i), Post-Transition Table of DTV
Allotments, Television Broadcast Stations (Atlantic City, New Jersey), Notice
of Proposed Rulemaking, 24 FCC Rcd 14601 (Media Bur. 2009); Amendment
of Section 73.622(i), Post-Transition Table of DTV Allotments, Television
Broadcast Stations (Seaford, Delaware)
, Notice of Proposed Rulemaking, 24
FCC Rcd 14596 (Media Bur. 2009).
13

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 21 of 89
¶ 24 (J.A. 208)) – would fulfill the Congressional policy, expressed in the
first sentence of section 331(a), of “allot[ting] at least one VHF channel to
each State, if technically feasible.” Bureau Order at 8 (J.A. 127).

B.

This Court’s Dismissal of PMCM’s Petition For A Writ
of Mandamus

After the Bureau denied its requests, PMCM filed a petition for a writ
of mandamus in this Court, seeking an order directing the Commission “to
comply immediately with Section 331(a) by reallocating PMCM’s channels
as indicated in PMCM’s notifications and issuing PMCM appropriate
licenses.” In re PMCM TV, LLC, D.C. Circuit No. 10-1001, Petition for Writ
of Mandamus at 21-22 (filed January 5, 2010). PMCM argued that the statute
confined the FCC to a purely ministerial role and required the Commission to
grant its requests. Id. at 11, 21. On May 12, 2010, the Court denied the
mandamus petition without requesting a response from the Commission. The
Court found, among other things, that “Petitioner has not demonstrated that
the Federal Communications Commission has violated a clear duty to act.”
Id., Order, D.C. Circuit No. 10-1001 (filed May 12, 2010). By separate
orders filed August 6, 2010, the Court similarly denied PMCM’s requests for
panel rehearing and rehearing en banc of the mandamus denial, with no
member of the Court requesting a vote. Id., Orders, D.C. Circuit No. 10-1001
(filed Aug. 6, 2010).
14

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 22 of 89

C. The Order

On Review

Shortly after PMCM filed its mandamus petition with this Court, on
January 19, 2010, PMCM also filed an application for administrative review
9
of the Bureau Order by the full Commission.
10
Nave again filed in opposition, arguing that the Commission should
affirm the Bureau’s reasonable interpretation of the term “reallocation” in
section 331(a). Nave Opposition at 7 (J.A. 161). Nave contended that, unlike
PMCM’s reading, the Bureau’s interpretation harmonized Congress’s goal of
ensuring that every state had at least one VHF station with practical
considerations, such as the avoidance of harmful interference. Id. at 3 (J.A.
157). Indeed, Nave pointed to an ex parte communication that PMCM filed
with the FCC in which PMCM readily conceded that its interpretation of the
statute “would preclude Commission discretion even in . . . extreme
situations” that would “lead to unacceptable interference.” Id. at 3 n.5,
Attachment A (PMCM 9/15/09 ex parte) at 3 (J.A. 157, 166) (emphasis
added).

9 Contingent/Protective Application for Review of PMCM TV, LLC and
Request for Prompt Related Relief (Jan. 19, 2010) (J.A. 130) (“Application
for Review”).
10 Opposition to Contingent/Protective Application for Review of PMCM
TV, LLC and Request for Prompt Related Relief (Feb. 3, 2010) (J.A. 155)
(“Nave Opposition”).
15

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 23 of 89
On September 15, 2011, the Commission issued the Order on appeal,
denying PMCM’s application for administrative review and affirming the
Bureau’s interpretation of section 331(a). Order ¶ 1 (J.A. 196). The
Commission determined that the language and structure of section 331(a)
reveal “a narrowly drawn statutory scheme.” Order ¶ 14 (J.A. 202). The
Commission explained that the first sentence of section 331(a) directs it “to
‘allocate’ at least one commercial VHF channel to each state ‘if technically
feasible.’” Id. (quoting section 331(a)). By contrast, the second sentence
provides, without express reference to technical feasibility, that if a licensee
notifies the Commission that it will agree to the “reallocation of its channel”
to an unserved state, the Commission shall order such reallocation and issue a
corresponding license “notwithstanding any other provision of law.” Id.
(quoting section 331(a)).
Reading these two provisions together, and in light of its traditional
mechanisms for allocating channels in the public interest under 47 U.S.C.
§ 307(b), the Commission determined that Congress did not intend “for
Section 331(a) to operate as a substitute for normal allocation procedures
where, as here, the Commission can fulfill the statutory mandate of [the first
sentence to] allocate[e] at least one commercial VHF channel to each state
using those procedures.” Order ¶ 23 (J.A. 208). Those procedures protect
16

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 24 of 89
against unnecessary loss of service by other communities – such as Ely,
Nevada and Jackson, Wyoming in this case – and ensure that all relevant
policies are considered and that all interested parties are afforded an
opportunity to seek a license when a newly allotted channel is available.
Order ¶¶ 19, 20 & n.62 (J.A. 205, 206). The Commission found that, in
contrast to the prior application of the section 331(a) reallocation procedure
to WOR-TV in 1983 – when there was no technically feasible way to allocate
a new VHF channel to New Jersey because existing channel allocations
precluded new allocations to that state – normal allocation procedures are
possible for New Jersey and Delaware today. Order ¶¶ 22-23 (J.A. 206-08).
Indeed, the Commission noted, those allocation procedures have now been
implemented to provide VHF channels to both New Jersey and Delaware. Id.
¶ 22 (J.A. 207).
The Commission reasoned further that “the absence of a technical
feasibility proviso in the second sentence does not mean that Congress meant
to require the Commission to order reallocations that would cause
interference to other channels.” Order ¶ 14 (J.A. 202). Rather, the
Commission stated, it reflects an appreciation that the narrow circumstance to
which the second sentence applies would never pose a risk of technical
infeasibility. Id. That circumstance, the Commission concluded, was limited
17

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 25 of 89
to cases – like the earlier WOR-TV reallocation from New York City to
Secaucus, New Jersey – that did not add a new broadcast signal to a
geographic area, but rather changed an existing station’s official community
of license by reallocating its channel to the new community. Id. ¶¶ 14-15
(J.A. 202-03); see also id. ¶¶ 4-5, 8-9 (J.A. 198-99, 200).

D. Other Developments

In March and April of 2010, respectively, the Commission allotted
VHF Channel 4 to Atlantic City, New Jersey and VHF Channel 5 to Seaford,
11
Delaware. Both states, therefore, now have “not less than one [commercial
VHF] channel.” 47 U.S.C. § 331(a).

SUMMARY OF ARGUMENT

Taking account of the statutory text, structure, purposes, and legislative
history of section 331(a), the Commission reasonably construed the second
sentence of that provision to apply solely in circumstances, not present here,
in which interference concerns arising from an existing channel allocation
preclude a new allocation of the same channel to an unserved state. That was
the case with the WOR-TV reallocation in 1983, which was a major focus of

11 Amendment of Section 73.622(i), Post-Transition Table of DTV
Allotments, Television Broadcast Stations (Atlantic City, New Jersey), Report
and Order, 25 FCC Rcd 2606 (Video Div., Media Bur. 2010); Amendment of
Section 73.622(i), Post-Transition Table of DTV Allotments, Television
Broadcast Stations (Seaford, Delaware)
, Report and Order, 25 FCC Rcd
4466 (Video Div., Media Bur. 2010).
18

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 26 of 89
the statute’s legislative history. See Order ¶¶ 3-5, 16 (J.A. 197-99, 203). In
those circumstances, a broadcaster’s voluntary reallocation of its channel to
the unserved state may be the only technically feasible way to provide VHF
service to that state. The FCC’s reasonable construction of the statute is
entitled to deference under Chevron USA, Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984).
12
As PMCM conceded below, its reading of the reallocation provision
would compel the grant of reallocation requests in “any case” (Br. 20
(quoting section 331(a)), even if such reallocations would result in harmful
interference with other stations. Such a reading “confuses ‘plain meaning’
with literalism.” Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1045 (D.C.
Cir. 1997). The Commission reasonably rejected that reading because it
ignores Congress’s clearly expressed intent, in the first sentence of section
331(a), that commercial VHF channels be allocated to unserved states “if
technically feasible,” and would yield the absurd result of compelling
technically infeasible moves to the detriment of the public. Order
¶¶ 14-15, 20 (J.A. 202-03, 205). Indeed, such a result would undermine the
overriding statutory goal of having an expert agency (the FCC) allocate
spectrum licenses in the public interest so as to avoid signal interference. See

12 PMCM 9/15/09 ex parte at 3 (J.A. 166).
19

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 27 of 89
Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 454 (1989) (statutory
words “of general meaning” should be construed to avoid “absurd results”)
(internal quotation marks omitted).
PMCM claims that the Commission’s own interpretation of the statute
is inconsistent with precedent and would permit harmful interference. Br. 35-
45. But PMCM demonstrates no such inconsistency, and its contention that
the Commission’s interpretation would allow reallocations that could cause
harmful interference is not properly before the Court because it was not first
presented to the agency as required by 47 U.S.C. § 405(a). In any event, the
Commission reasonably explained that the reallocation procedure specified in
the second sentence of section 331(a) applies to a defined universe of cases –
such as the WOR-TV reallocation in 1983 – in which “technical feasibility is
assured.” Order ¶ 14 (J.A. 202).

ARGUMENT

I.

THE ORDER IS REVIEWED UNDER DEFERENTIAL
STANDARDS.

PMCM’s challenge to the FCC’s interpretation of section 331(a) of the
Communications Act is governed by Chevron USA, Inc. v. Natural Resources
Defense Council, 467 U.S. 837. Under Chevron, if “Congress has directly
spoken to the precise question at issue,” the Court “must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. In determining
20

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 28 of 89
whether Congress has spoken unambiguously, the Court uses “the customary
statutory interpretation tools of text, structure, purpose, and legislative
history.” California Metro Mobile Commc’ns, Inc. v. FCC, 365 F.3d 38, 44-
45 (D.C. Cir. 2004) (internal quotation marks omitted); accord Bell Atlantic
Tel. Cos. v. FCC, 131 F.3d at 1047. If “the purported ‘plain meaning’ of a
statute’s word or phrase happens to render the statute senseless,” that is
evidence of “ambiguity rather than clarity.” Alarm Indus. Commc’ns Comm.
v. FCC, 131 F.3d 1066, 1068 (D.C. Cir. 1997). And “if the statute is silent or
ambiguous with respect to the specific issue, the question for the [Court] is
whether the agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843.
The Commission likewise is entitled to substantial deference in
construing its own precedent. Cassel v. FCC, 154 F.3d 478, 483 (D.C. Cir.
1998). The Commission’s “interpretation of the intended effect of its own
orders is controlling unless clearly erroneous.” MCI Worldcom Network
Servs., Inc. v. FCC, 274 F.3d 542, 547 (D.C. Cir. 2001).
PMCM cannot overcome the high burden imposed on parties
challenging agency action.
21

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 29 of 89

II.

THE COMMISSION’S READING OF SECTION 331(a)
COMPORTS WITH THE TEXT, STRUCTURE,
PURPOSES, AND LEGISLATIVE HISTORY OF THAT
PROVISION.

The Commission acted well within its discretion in rejecting PMCM’s
argument that the agency had a non-discretionary duty under the second
sentence of 47 U.S.C. § 331(a) to relicense Nevada Station KVNV(TV),
Channel 3, in New Jersey and Wyoming Station KJWY, Channel 2, in
Delaware. Specifically, PMCM argues that its “reallocation” notifications
qualified for non-discretionary treatment, because both New Jersey and
Delaware were without VHF channels at the time of the notifications and the
language of the second sentence applies to “any case” in which a VHF
licensee notifies the Commission that it agrees to the “reallocation” of its
channel to an unserved state. Br. 16, 20 (quoting section 331(a)).
As the Commission explained, the term “reallocation” in the second
sentence of section 331(a) is properly construed as referring to the “shifting
of a channel from one community to another community under circumstances
where the channel cannot be used simultaneously at both locations because
such dual operations would cause interference.” Order ¶ 1 (J.A. 196). Here,
there is no dispute that the operation of PMCM’s stations in Nevada and
Wyoming has no preclusive effect on use of the same channels in New Jersey
or Delaware. Accordingly, the Commission correctly determined that section
22

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 30 of 89
331(a) does not “allow[] PMCM to obtain licenses to move its operations
from Nevada and Wyoming to New Jersey and Delaware.” Order ¶ 24 (J.A.
208).
Section 331(a) provides:
It shall be the policy of the Federal Communications
Commission to allocate channels for very high frequency
commercial television broadcasting in a manner which ensures
that not less than one such channel shall be allocated to each
State, if technically feasible. In any case in which [a] licensee of
a very high frequency commercial television broadcast station
notifies the Commission to the effect that such licensee will
agree to the reallocation of its channel to a community within a
State in which there is allocated no very high frequency
commercial television broadcast channel at the time [of] such
notification, the Commission shall, notwithstanding any other
provision of law, order such reallocation and issue a license to
such licensee for that purpose pursuant to such notification for a
term of not to exceed 5 years as provided in section 307(d) of the
Communications Act of 1934.
47 U.S.C. § 331(a).
The FCC explained that “[a]n examination of the wording and structure
of Section 331(a) reveals a narrowly drawn statutory scheme.” Order ¶ 14
(J.A. 202). Specifically, “[t]he first sentence of Section 331(a) directs the
Commission to ‘allocate’ at least one commercial VHF channel to each state
‘if technically feasible.’” Ibid. The second sentence directs the Commission,
“upon a licensee’s notification to the Commission that it is willing to agree to
the ‘reallocation of its channel’ to an unserved state, to order such
23

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 31 of 89
reallocation and issue a license for the reallocated channel, ‘notwithstanding
any other provision of law.’” Ibid. Thus, the agency explained, “Congress
directed the Commission to allocate at least one commercial VHF channel to
each state, using normal allocation procedures, where it is technically feasible
to do so.” Ibid. (emphasis added). By contrast, where it is “not technically
feasible to establish [that] objective using normal procedures, Congress
provided an alternative mechanism” – the mechanism that PMCM invokes
here – “that was intended to facilitate reallocations to unserved states by
removing the comparative hearing requirements that otherwise would put a
licensee’s existing operations at risk and inhibit voluntary reallocations.”
13
Ibid.
Accordingly, the Commission reasonably determined that where, as
here, normal allocation procedures with normal public-interest protections
can be employed to implement the first sentence of section 331(a) by
“allocating” a new VHF channel in an unserved state, Congress did not intend
the second sentence to apply. Order ¶ 14 (J.A. 202); see also id. ¶ 23 (J.A.

13 See Bureau Order at 5 (J.A. 124) (noting that, at the time section 331 was
enacted, “the Commission regarded a petition to amend the TV Table of
Allotments to change an allotment’s community of license as an event
triggering an opportunity for all interested parties to file applications for the
new allotment, even when the channel was already occupied by a station and
no new service would result from the change in community of license
because the station already served that area”).
24

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 32 of 89
208) (“We do not think Congress intended for Section 331(a) to operate as a
substitute for normal allocation procedures where, as here, the Commission
can fulfill the statutory mandate of allocating at least one commercial VHF
channel to each state using those procedures.”).
Instead, the FCC concluded that the second sentence of section 331(a)
applies only when existing VHF stations in other states make it infeasible to
allocate a new VHF channel to the unserved state. In that situation, as in the
case of WOR-TV in the early 1980s, the statute permits the licensee of a VHF
station with an existing broadcast footprint that covers communities in the
unserved state to reallocate its channel to the unserved state. That
interpretation of the second sentence of section 331(a) – which the
Commission described as “involving reallocations of channels to nearby
communities where the two allocations are mutually exclusive” – would
reach only that subset of cases in which “technical feasibility is assured” and
harmful interference would never be a problem. Order ¶ 14 (J.A. 202). As
the Commission noted, that common-sense interpretation explained why
“Congress did not believe it was necessary to require technical feasibility
explicitly” in the second sentence of section 331(a). Ibid.
PMCM’s expansive reading of the second sentence, by contrast, would
render the first and second sentences of section 331(a) internally inconsistent
25

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 33 of 89
and yield absurd results. If the second sentence were read to reach “any case”
in which a VHF licensee seeks to move its station to a state with no VHF
station, as PMCM asserts (Br. 16, 20 (quoting section 331(a)), it not only
would undermine Congress’s express concern, reflected in the first sentence,
that technical feasibility be assured, but also would risk the absurd result of
mandating that the Commission approve new broadcast service that provides
a poor quality signal while impairing the signal of other area stations, as well.
See, e.g., Public Citizen, 491 U.S. at 454 (despite use of “broad” statutory
language, “consideration of the whole legislation, or of the circumstances
surrounding its enactment, or of the absurd results which follow from giving
such broad meaning to the words, makes it unreasonable to believe the
legislator intended to include the particular act”) (internal quotation marks
omitted).
The Commission reasonably concluded that Congress intended to
avoid this result through its use of the term “reallocation” in the second
sentence. It noted that, prior to the enactment of section 331(a), the
Commission had used that term to address circumstances, such as the
eventual WOR-TV channel reallocation, in which the prior channel allotment
and the reallocated channel were mutually exclusive and reallocation,
therefore, would avoid the risk of harmful interference. See Order ¶ 21 (J.A.
26

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 34 of 89
206) (noting that in its pre-section 331 “New Jersey Inquiry, . . . the
Commission clearly distinguished between an allotment, i.e., the drop-in of a
. . . channel 8 to New Jersey, and the ‘reallocation’ of existing channels in
New York to New Jersey”) (citing Petition for Inquiry into the Need for
Adequate Television Service for the State of New Jersey, 58 FCC 2d 790,
802-04 (1976)); id. ¶ 14 (J.A. 202) (noting that “technical feasibility is
assured” in such circumstances).
PMCM contends (Br. 39-42) that the Commission misread its
precedent in attributing that narrow meaning to the term “reallocation.”
However, the only pre-enactment decision that PMCM cites in support of its
argument is SRC, Inc., San Angelo, TX, 21 FCC 2d 901, 907 (1970). That
case is consistent with the Commission’s description of its precedent because
it involved the “reallocation” of a previously deleted Texas channel back to
the same community. Thus, it did not involve “the deletion of a channel from
one community and the addition of the same channel in another community
where simultaneous operation on that channel in both communities would be
feasible.” Order ¶ 21 (J.A. 206). Nor are the post-enactment decisions
PMCM cites (Br. 39-40) inconsistent with the Commission’s view of its
27

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 35 of 89
earlier precedent: each involved proposed “reallocations” between mutually
14
exclusive communities.
According to PMCM, the Commission’s conclusion that “reallocation”
has had a narrow consistently-defined meaning also is undermined “by the
Commission’s own acknowledgement” that it has used the term “allocate” in
a “‘colloquial, i.e., erroneous’ manner.” Br. 40 (quoting Oversight of the
Radio and TV Broadcast Rules, 1 FCC Rcd 849, 849 (Media Bur. 1986)).
Not so. The cited order addressed the Commission’s prior misuse of the
“terms ‘allotment’ and ‘assignment’” and did not identify any misuse of the
terms “allocations” or “reallocations.” Oversight of the Radio and TV
Broadcast Rules, 1 FCC Rcd at 849 (¶4). PMCM provides no basis upon
which to overcome the deference to which the Commission is entitled in

14 See Amendment of Section 73.606(b), Table of Allotments, Television
Broadcast Stations (Montrose and Scranton, Pennsylvania), 3 FCC Rcd 1061
(Media Bur. 1988); Advanced Television Systems and Their Impact Upon the
Existing Television Broadcast Service
, 23 FCC Rcd 4220, 4283 (¶ 162)
(2008) (reciting Johnstown to Jeannette, Pennsylvania reallocation);
Amendment of Section 73.606(b), Table of Allotments, TV Broadcast Stations
(Snyder, Texas)
, 6 FCC Rcd 5791 (1991). Each of the cited cases involved
UHF stations. Rule 73.610(b)(1), 47 C.F.R. § 73.610(b)(1), which governed
analog channel allotments, delineated the minimum UHF station separation
distances for Zone 1 (which includes Pennsylvania) and Zone 2 (which
includes Texas). Because those minimum separation requirements were not
met in the cited cases, the proposed reallocations involved mutually exclusive
communities.
28

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 36 of 89
interpreting its own prior orders. MCI WorldCom Network Servs., Inc. v.
FCC, 274 F.3d at 547.
The legislative history of section 331(a) also strongly supports the
Commission’s reading of “reallocation.” Although PMCM argues that the
statute’s Conference Report reflects a Congressional intent that the
reallocation provision apply to “‘any licensee’ in ‘a’ state, without limitation
as to the location of that licensee’s station,” Br. 23 (quoting H.R. Rep. No.
760, 97th Cong., 2d Sess. 690 (1982), reprinted in 1982 U.S.C.C.A.N. 1453
(“Conference Report”)), that report also expressed an intent that a licensee
seeking to invoke the reallocation procedure under section 331 “will move its
studio and offices to and operate for the public benefit of the unserved State.”
1982 U.S.C.C.A.N. 1453 (emphasis added). The quoted language makes no
reference to any movement of the licensee’s transmission facilities.
Similarly, as the Commission noted, Senator Bradley explained that under the
legislation he authored “‘the reallocation of a license to New Jersey will mean
that the licenseholder will move its studios and offices to New Jersey.’”
Order ¶ 5 (J.A. 198) (quoting 128 Cong. Rec., S10946 (Aug. 19, 1982)). The
notable absence of any reference to the relocation of transmission facilities
supports the Commission’s construction of section 331(a).
29

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 37 of 89
Indeed, in FCC administrative proceedings a year before section 331
was enacted, Senators Bradley and Williams of New Jersey had filed a
petition on behalf of their state “‘proposing that [WOR-TV’s channel 9] be
reallocated [from New York City] to any of several communities in New
Jersey over which the current operation [of WOR-TV] places a city grade
signal,’” while noting that their proposal would not require the physical
relocation of the channel 9 transmission facilities. Order ¶ 4 (J.A. 198)
(quoting Petition to Reallocate VHF-TV Channel 9 from New York, New
York, to a City Within the City Grade Contour of WOR-TV, 84 FCC 2d 280,
282 (1981)). The enactment of section 331 the following year effectively
provided WOR-TV the same limited relief the New Jersey Senators had
sought unsuccessfully through administrative action. There is every
indication in the surrounding circumstances that section 331(a) was intended
specifically to address WOR-TV’s station. See Order ¶¶ 3-5, 16 (J.A. 197-
99, 203) (detailing legislative history). There is no indication in the statute’s
legislative history that Congress contemplated any possible application of
section 331 that could cause harmful interference, as could occur if the statute
were read to require non-discretionary relocation of broadcast transmission
facilities from anywhere in the county to an unserved state.
30

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 38 of 89
Even if PMCM were correct that “reallocation,” in other contexts,
would be construed more broadly, the Commission’s reading was entirely
reasonable in the specific context of section 331(a), because it reconciles the
first and second sentences of that provision. This Court’s Bell Atlantic
decision is instructive. That case examined two subsections of 47 U.S.C.
§ 272. The first subsection, section 272(a), provides that, “normally, a Bell
Operating Company (‘BOC’) may not provide origination of most
communications services between Local Access and Transport Areas
(‘interLATA [or long-distance] services’) except through a separate affiliate.”
Bell Atlantic, 131 F.3d at 1045. The second subsection, section 272(e)(4),
states that a BOC “‘may provide . . . interLATA … facilities or services to its
interLATA affiliate if such services or facilities are made available to all
carriers at the same rates.’” Id. (quoting section 272(e)(4)).
The Court noted that, “[a]t first blush, the second provision appears to
give back what the first section takes away, i.e., a BOC’s ability to provide
interLATA origination services in a physically integrated network with its
local exchange services.” Id. To avoid that “anomalous result,” however, the
FCC interpreted section 272(e)(4) to include an additional caveat (reflected in
the highlighted language that follows) – i.e., that a BOC “may provide any
interLATA services ‘it is otherwise authorized to provide,’ so long as it
31

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 39 of 89
provides them on a non-discriminatory basis.” Id. (quoting FCC order).
Rejecting the BOC petitioners’ claim that “the plain meaning of § 272(e)(4)
precludes the Commission’s interpretation because the literal meaning of the
words ‘may provide any’ operates as an unrestricted affirmative grant of
authority for them to deliver integrated interLATA services,” the Court found
that petitioners’ argument “confuses ‘plain meaning’ with literalism.” Id.
The Court concluded that the statute was ambiguous and upheld the
Commission’s reasonable construction. Id. at 1047-50.
A similar result should obtain here. Like the petitioners’ argument in
Bell Atlantic, PMCM’s contention (Br. 20) that the second sentence of section
331(a) applies to “any case” in which a licensee agrees to the reallocation of
its VHF channel to an unserved state “confuses ‘plain meaning’ with
literalism.” 131 F.3d at 1045. It would negate Congress’s expressed concern
about technical feasibility, i.e., preventing harmful interference. Indeed,
because that “purported ‘plain meaning’ of [section 331(a)] happens to render
the statute senseless, we are encountering ambiguity rather than clarity,”
permitting the Commission to interpret the provision in a manner that is
reasonable in light of its overall language, structure, purpose and legislative
history. Alarm Indus. Commc’ns v. FCC, 131 F.3d at 1068.
32

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 40 of 89
PMCM attempts to explain Congress’s express concern with technical
feasibility in the first sentence of section 331(a) – and the absence of any such
stated concern in the second sentence – by contending that the second
sentence only applies where the Commission first has failed to implement
Congress’s command in the initial sentence to ensure that, if technically
feasible, each state has a VHF channel. Br. 28; see also Br. 45 (describing
the second sentence of section 331(a) as a “back-up mechanism”). But
section 331(a), by its terms, does not provide for sequential attempts to
implement the first sentence and then the second. Any eligible licensee (such
as the licensee in the Multi-State case) could have invoked the reallocation
procedure on the first day after section 331 was enacted in 1982, without
waiting for the Commission to “fail[]” (Br. 28) to implement the first
sentence. Thus, under PMCM’s reading, “Congress’ directive in the first
sentence . . . to consider technical feasibility . . . would be rendered
superfluous if the second sentence of the statute were interpreted to require
the Commission to reallocate a channel despite technical infeasibility.”
Bureau Order at 6 n.27 (J.A. 125); see also Order ¶ 14 (J.A. 202) (noting that
PMCM “has suggested no reason why Congress would be concerned about
technical feasibility in the first sentence of section 331(a) . . . but completely
unconcerned about technical feasibility in the second sentence”). Indeed,
33

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 41 of 89
PMCM’s own actions in this case undermine the interpretive theory advanced
in its appellate brief: PMCM did not wait for the FCC to “fail” to allocate a
channel under the first sentence; instead, it attempted to foreclose the normal
notice-and-comment process by rushing to submit a “reallocation” request
15
two days after New Jersey lost its analog VHF channel.
PMCM argues that its “proposed reallocations would not in any event
cause any interference to existing stations entitled to protection.” Br. 20.
That argument misses the point. Whether or not PMCM’s requested moves
would have caused harmful interference, PMCM concedes that, under its
reading of the statute, the Commission would be required to grant any move
request even if it would cause harmful interference to existing stations.
PMCM 9/15/09 ex parte at 3 (J.A. 166). The FCC reasonably took account
of the ramifications of PMCM’s reading of the statute (see Bureau Order at 7
n.33 (J.A. 126)) – particularly where that reading would undermine the core
purpose of FCC spectrum allocations. See Red Lion Broad. Co. v. FCC, 395

15 Relatedly, PMCM asserts that, notwithstanding implementation issues
associated with the DTV transition, the Commission could have invoked the
first sentence of section 331(a) to allocate new VHF channels to New Jersey
and Delaware earlier than it did. Br. 32-34. That claim is baseless for the
reasons the Commission outlined. See Order ¶ 22 (J.A. 206-07). And it has
no bearing on the interpretive question in this case – whether PMCM’s
request to move its Nevada and Wyoming channels to New Jersey and
Delaware is governed by the second sentence of section 331(a).
34

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 42 of 89
U.S. 367, 376 (1969) (“Without government control, the [broadcast] medium
would be of little use because of the cacophony of competing voices, none of
which could be clearly and predictably heard.”).
PMCM also claims that the Commission’s construction is
unreasonable, because, even on its own terms, it allegedly would not prevent
harmful interference in certain circumstances. Br. 42-43. Because this
argument was not raised below, it is barred by 47 U.S.C. § 405(a), which
prevents the Court “‘from considering any issue of law or fact upon which the
Commission has been afforded no opportunity to pass.’” American Family
Ass’n v. FCC, 365 F.3d 1156, 1166 (D.C. Cir. 2004) (quoting section 405(a));
accord AT&T Corp. v. FCC, 317 F.3d 227, 235-36 (D.C. Cir. 2003).
In any event, PMCM’s argument fails on the merits. As noted above,
because the second sentence of section 331(a) – in stark contrast with the
preceding sentence – makes no mention of technical feasibility, the
Commission concluded that that sentence addresses a universe of applications
in which “technical feasibility is assured” and thus where harmful
interference would never be a problem. Order ¶ 14 (J.A. 202). PMCM itself
offered no plausible alternative reading, since, by PMCM’s lights, the statute
imposes upon the Commission the ministerial duty of granting “reallocations”
of channels from anywhere in the country to unserved states regardless of
35

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 43 of 89
whether the reallocated channel causes harmful interference. PMCM 9/15/09
ex parte at 3 (J.A. 166).
PMCM also errs in contending that the Commission’s Order
impermissibly rewrites the second sentence of section 331(a) to “alter . . . the
term ‘notwithstanding any other provision of law’ to read ‘notwithstanding
some, but not all, other provisions of law.’” Br. 29. The Commission did no
such thing. Rather, it reasonably construed the statute to mean that
“reallocations” within the meaning of the second sentence must be granted on
a non-discretionary basis “notwithstanding” the competitive selection process
and the section 307(b) criteria that otherwise would apply. Order ¶¶ 14, 16
(J.A. 202, 203).
Focusing on the Commission’s explanation that “reallocation” should
be construed in light of Congress’s intent to remove the impediment of
comparative hearings for licensees willing to reallocate their channels to New
Jersey, PMCM contends that the Commission mistakenly assumed that only
nearby stations faced such a risk in changing their community of license. Br.
35-36 (citing Order ¶ 16 (J.A. 203)). PMCM argues that, because licensees
of distant channels faced the same risk when changing their communities of
license, Congress’s intent to remove that risk provides no reasonable basis for
the Commission to interpret “reallocation” narrowly. Id. PMCM misreads
36

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 44 of 89
the Order. The Commission stated that the licensee of a distant channel that
wanted to operate on the same channel (say, Channel 2) in New Jersey or
Delaware “could have petitioned the Commission to allocate a new channel
[2] to New Jersey or Delaware had it been technically feasible for the
Commission to do so” with no impact on the licensee’s existing distant
license. Order ¶ 16 (J.A. 203); see also Bureau Order at 5 (J.A. 124) (noting
that the licensee of a distant channel could “petition for a new channel
allocation, not a reallocation” without putting the license for its existing
distant channel at risk).
By contrast, the licensee of a nearby Channel 2 station could not obtain
the allocation of a new simultaneously-operating channel on the same
frequency in either New Jersey or Delaware, because of harmful interference
with its existing channel. In that situation, rather than requesting allocation
of a “new channel,” it could request a “reallocation” pursuant to the second
sentence of section 331(a). Absent the “alternative mechanism” (Order ¶ 14
(J.A.202)) provided by that sentence, at the time section 331(a) was enacted,
37

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 45 of 89
16
the licensee would have risked losing its license in a comparative hearing.
The Commission’s interpretation of “reallocation” properly addresses that
limited concern.
PMCM next contends that the Commission’s construction is
inconsistent with this Court’s observation in Multi-State that “‘[t]he plain
language of section 331 commands that if any licensee volunteers to move to
an unserved state, ‘the Commission shall, notwithstanding any other
provision of law, order such reallocation and issue a license. . . .’” Br. 17
(quoting Multi-State, 728 F.2d at 1524) (emphasis removed). But, unlike this
case, no allocation of a new channel using normal procedures – pursuant to
the first sentence of section 331(a) – was technically feasible in Multi-State.
Order ¶ 23 (J.A. 208). Moreover, the licensee that agreed to the reallocation
of its channel in Multi-State was merely moving its offices and studios from
New York City to Secaucus, New Jersey, and was not moving its broadcast
transmission facilities or otherwise presenting any new threat of harmful

16 PMCM notes that, subsequent to the enactment of section 331, the
Commission amended its rules to allow a licensee to seek reallocation of its
channel to a new community of interest without placing its existing
authorization at risk, so long as the new community of interest is mutually
exclusive with the existing allotment. Br. 37 (citing Modification of FM and
TV Authorizations to Specify a New Community of License
, 4 FCC Rcd 4870,
4872-73 (¶ 22) (1989)). That change has no bearing on the meaning of
section 331, which was designed to remove impediments to reallocation that
existed at the time section 331 was enacted in 1982.
38

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 46 of 89
interference to existing stations. WOR-TV Reallocation Order, 53 Rad.Reg.
2d at 470 (¶ 2). “[I]ts transmitter w[ould] remain atop the World Trade
Center in New York City,” thereby allowing the licensee to continue
broadcasting within its existing coverage area. Ibid. Accordingly, that
licensee’s request was governed by the second sentence of section 331(a).
The language from Multi-State on which PMCM relies responds to the
claim that, notwithstanding the applicability of the second sentence of section
331(a) to the licensee’s reallocation request, the Commission nevertheless
should have “conduct[ed] a comparative hearing to determine which of two
or more competing license applicants would better service the public
interest.” Id. at 1524. It thus has no bearing on PMCM’s request to move its
stations thousands of miles, which the Commission reasonably determined is
not governed by the second sentence of section 331(a).
Indeed, although the Court in Multi-State “did not examine or construe
the term ‘reallocate,’” its analysis of the term “allocate” strongly supports the
Commission’s conclusion in the Order that the second sentence of section
331(a) should not be interpreted in isolation, divorced from the preceding
sentence. Order ¶¶ 17, 18 (J.A. 203-04). See Multi-State, 728 F.2d at 1522
(rejecting appellants’ construction of “allocated” because statutory
39

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 47 of 89
interpretation “requires more than a superficial and isolated examination of
the statute’s plain words”).
Finally, PMCM argues that the Commission’s construction of section
331(a) is inconsistent with the statute’s purpose “‘to provide each “unserved”
state with an operating commercial VHF station’” because it reduces the pool
of parties potentially eligible to seek mandatory “reallocation.” Br. 24-25
(quoting Multi-State, 728 F.2d at 1524). PMCM’s reading, however, would
effectively eliminate the Commission’s ability to remedy the problem of
unserved areas through the first sentence of section 331(a) – a provision that
itself otherwise would maximize the pool of potential licensees. Nothing in
the text of the statute or the legislative history suggests that Congress
intended to maximize the pool of reallocation requesters at the expense of
other goals – including the goal of avoiding harmful interference in license
allocations. Although PMCM’s reading would increase the number of
potential parties requesting moves under the second sentence of section
331(a), it also would undermine Congress’s concerns about technical
40

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 48 of 89
feasibility. A faithful reading of the statute does not require such a self-
17
defeating result. Public Citizen, 491 U.S. at 454.
* * *
In sum, the Commission reasonably concluded that the reallocation
procedure specified in the second sentence of section 331(a) is limited to
situations involving the “shifting of a channel from one community to another
community under circumstances where the channel cannot be used
simultaneously [by different broadcasters] at both locations because such dual
operations would cause interference.” Order ¶ 1 (J.A. 196). Because it is
undisputed that the operation of PMCM’s stations in Nevada and Wyoming
would not have precluded allocation of the same television channels for use
in New Jersey and Delaware, the Commission correctly determined that
section 331(a) did not require it to grant PMCM’s requests.

17 PMCM similarly contends that the Commission’s construction “would
inexplicably preclude . . . non-contiguous states – Alaska and Hawaii – and
most U.S. territories” from relief under the second sentence of section 331(a).
Br. 43-44. That result, however, is hardly “inexplicable.” If a non-
contiguous state or territory is without a VHF station, resort to the
reallocation procedure in the second sentence would be entirely unnecessary:
there would be no technical feasibility impediment (stemming from out-of-
state or territory VHF stations) to allocating a new VHF channel to that state
or territory.
41

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 49 of 89

CONCLUSION

For the foregoing reasons, the Court should deny PMCM’s appeal.
Respectfully
submitted,

AUSTIN C. SCHLICK
GENERAL COUNSEL
PETER KARANJIA
DEPUTY GENERAL COUNSEL
RICHARD K. WELCH
DEPUTY ASSOCIATE GENERAL
COUNSEL
/s/ Laurence N. Bourne
LAURENCE N. BOURNE
COUNSEL
FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
February 2, 2012
42

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 50 of 89
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PMCM TV, LLC,
APPELLANT,
v.
NO. 11-1330
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE.
CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying “Brief for Appellee” in the captioned case
contains 8,820 words.
/s/ Laurence N. Bourne
Laurence N. Bourne
Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
February 2, 2012
2

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 51 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 52 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 53 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 54 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 55 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 56 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 57 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 58 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 59 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 60 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 61 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 62 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 63 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 64 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 65 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 66 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 67 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 68 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 69 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 70 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 71 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 72 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 73 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 74 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 75 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 76 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 77 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 78 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 79 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 80 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 81 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 82 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 83 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 84 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 85 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 86 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 87 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 88 of 89

USCA Case #11-1330 Document #1356260 Filed: 02/02/2012 Page 89 of 89
11-1330

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PMCM, TV, LLC, Appellant

v.

Federal Communications Commission, Appellee.

CERTIFICATE OF SERVICE

I, Laurence N. Bourne, hereby certify that on February 2, 2012, I
electronically filed the foregoing Brief for Appellee 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.
Donald J. Evans
Harry F. Cole
Anne G. Crump
Fletcher, Heald & Hildreth, P.L.C.
1300 N. 17th Street -11th Floor
Arlington, VA 22209
Counsel for PMCM TV, LLC
/s/ Laurence N. Bourne

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.