Last Friday, the Court of Appeals for the D.C. Circuit denied petitions of review of the FCC’s Incentive Auction Order, submitted by the National Association of Broadcasters and Sinclair Broadcast Group. Inc.  Specifically, the Petitioners sought review of the Commission’s approach for determining the geographic area and customer base served by each broadcast licensee. The Spectrum Act grants the Commission authority to reassign channels as it sees fit when reallocating broadcast spectrum to other uses (see 47 U.S.C. § 1452(b)).  The Spectrum Act also states, however, that when doing so the Commission “shall make all reasonable efforts to preserve, as of February 22, 2012,  the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin 69 of the Office of Engineering and Technology of the Commission.”

The Petitioners sought review of the Commission’s interpretation and application of that language. In its opinion, the court determined that although the “methodology” to be used is ambiguous, the Commission made a reasonable interpretation.  Thus, the Commission was not foreclosed from use of the improved TVStudy program or the updated data inputs, rather than the specific computer software and data inputs the Commission would have used to make those determinations, on February 22, 2012, when determining a broadcaster’s coverage area and population served for purposes of the reverse auction.

FCC Chairman Tom Wheeler issued a statement responding the court’s decision.  The Chairman stated, “[w]e are gratified that the Court agrees with the Commission’s balanced, market-based approach to freeing up more valuable spectrum for innovative wireless broadband services. This decision provides the Commission and all stakeholders with the certainty necessary to proceed apace toward a successful auction in the first quarter of next year.”

Please do not hesitate to contact a member of the TLP Team if you have any questions.