National Ass'n of Broadcasters v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2015 Decided June 12, 2015
No. 14-1154
NATIONAL ASSOCIATION OF BROADCASTERS,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
CTIA - THE WIRELESS ASSOCIATION, ET AL.,
INTERVENORS
Consolidated with 14-1179, 14-1218
On Petitions for Review of Orders of
the Federal Communications Commission
Miguel A. Estrada argued the cause for petitioner
National Association of Broadcasters. John K. Hane argued
the cause for petitioner Sinclair Broadcast Group, Inc. With
them on the joint briefs were Lucas C. Townsend, Ashley S.
Boizelle, Rick Kaplan, Jerianne Timmerman, Jeetander T.
Dulani, and Cynthia Cook Robertson. Clifford M.
Harrington, Thomas G. Allen, and Jane E. Mago entered
appearances.
2
Jacob M. Lewis, Associate General Counsel, Federal
Communications Commission, argued the cause for
respondents. With him on the brief were William J. Baer,
Assistant Attorney General, U.S. Department of Justice,
Robert J. Wiggers and Kristen C. Limarzi, Attorneys,
Jonathan B. Sallet, General Counsel, Federal
Communications Commission, David M. Gossett, Deputy
General Counsel, and C. Grey Pash Jr., Counsel. Richard K.
Welch, Deputy Associate General Counsel, Federal
Communications Commission, entered an appearance.
Dominic F. Perella argued the cause for intervenors
CTIA - The Wireless Association, et al. in support of
respondents. With him on the brief were Michael K. Kellogg,
Scott H. Angstreich, Catherine E. Stetson, Elizabeth Austin
Bonner, Michael Altschul, Rebecca M. Thompson, and Julie
M. Kearney.
Preston R. Padden and Daniel M. Armstrong were on the
brief for intervenor Expanding Opportunities for Broadcasters
Coalition in support of respondents.
Before: HENDERSON and SRINIVASAN, Circuit Judges,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: This case arises out of the
Federal Communications Commission’s rulemaking under
Title VI of the Middle Class Tax Relief and Job Creation Act
of 2012, Pub. L. No. 112-96, 126 Stat. 156, known as the
Spectrum Act. In recognition of the changing needs of
American consumers, the Spectrum Act authorizes the FCC to
shift a portion of the licensed airwaves from over-the-air
television broadcasters to mobile broadband providers. The
3
Act directs the Commission to carry out the objective of
repurposing spectrum through three interdependent initiatives:
(i) a reverse auction to determine the prices at which
broadcasters would voluntarily sell their spectrum rights; (ii) a
reassignment of broadcasters who wish to retain their rights to
new channels in a smaller band of spectrum; and (iii) a
forward auction to sell the blocks of newly available spectrum
to wireless providers, with the proceeds used to compensate
broadcasters who voluntarily relinquished their spectrum
rights and to pay the relocation expenses of broadcasters
reassigned to new channels.
After the FCC adopted rules setting forth its framework
for the incentive auction and channel-reassignment process,
members of the television broadcast industry filed petitions
for review of the Commission’s orders in this court.
Petitioners argue that certain Commission decisions
announced in the orders conflict with the Spectrum Act or are
otherwise arbitrary and capricious. We deny the petitions for
review and sustain the Commission’s orders.
I.
Nearly two-thirds of American adults now own a
smartphone. Aaron Smith et al., Pew Research Ctr., U.S.
Smartphone Use in 2015, at 2 (2015), available at
http://www.pewinternet.org/files/2015/03/PI_Smartphones_0
401151.pdf. For that and related reasons, the use of wireless
networks in the United States is “skyrocketing, dramatically
increasing demands on both licensed and unlicensed
spectrum—the invisible infrastructure on which all wireless
networks depend.” In the Matter of Expanding the Economic
& Innovation Opportunities of Spectrum Through Incentive
Auctions, 27 FCC Rcd. 12,357, ¶ 1 (2012) (NPRM). The FCC
warns that the country “faces a major challenge to ensure that
4
the speed, capacity, and accessibility of our wireless networks
keeps pace with these demands in the years ahead.” Id.
Broadcast television currently occupies an important
portion of radiofrequency spectrum. Resp’ts’ Br. 5; see
NPRM, ¶ 12 & n.12. Approximately 8,400 broadcast
television stations provide service in the very-high frequency
(VHF) and ultra-high frequency (UHF) bands, with each
station allotted a channel covering a particular geographic
area. Resp’ts’ Br. 5. Broadcast television stations supply free
over-the-air programming “that is often highly responsive to
the needs and interests of the communities they serve,”
including local news, educational programming, and
emergency information. NPRM, ¶ 13.
“Although broadcast television continues to be a vital
source of local news and information for most Americans, the
other offerings in the video programming marketplace have
diverted much of broadcast television’s over-the-air viewing
audience over the years.” Id. ¶ 14. At one time, “virtually
all” television households received programming through an
over-the-air signal. Id. During the 2011-2012 television
season, however, only about 10 percent of television
households relied solely on broadcast television for
programming. Id.
In 2009, the broadcast television industry completed a
congressionally mandated transition from analog to digital
transmission (“the DTV transition”). Id. ¶ 15. Currently,
however, “[n]ot all broadcasters are in a position to take
advantage of the opportunities created by the digital
transition,” and the Commission anticipates that a significant
number of broadcasters will struggle financially and
eventually exit the business. Id. ¶ 16.
 5
In light of the state of the broadcast television industry,
and in response to the nation’s growing need for spectrum,
Congress, in the Spectrum Act, authorized the FCC to hold an
incentive auction to encourage broadcasters to relinquish their
spectrum rights in exchange for incentive payments. Middle
Class Tax Relief and Job Creation Act, Title VI; see NPRM,
¶ 3. For broadcasters who decline to give up their spectrum
rights in the reverse auction, the Act authorizes the FCC to
undertake a “repacking” process under which it will reassign
those broadcasters to new channels in a different (and
smaller) band of spectrum. See NPRM, ¶ 7. Those measures
will enable the Commission to recover a portion of the UHF
spectrum, see id. ¶ 5, which possesses propagation and
penetration characteristics “especially well-suited for mobile
broadband use,” Resp’ts’ Br. 5. The agency will then conduct
a forward auction to offer the recovered spectrum to wireless
carriers. See NPRM, ¶ 5.
Those three initiatives—the reverse auction, the
repacking process, and the forward auction—work together.
Id. As the FCC explains in its brief, the “reverse auction
depends on forward auction bidders’ willingness to pay and
the forward auction depends on reverse auction bidders’
willingness to relinquish spectrum rights in exchange for
payments, and each of these depend on an efficient repacking
of the spectrum used by the broadcasters that remain to clear a
portion of the UHF band for new uses.” Resp’ts’ Br. 9.
In October 2012, the Commission issued a Notice of
Proposed Rulemaking to implement the measures authorized
by the Spectrum Act. NPRM, 27 FCC Rcd. 12,357. On June
2, 2014, after receiving extensive comments on its proposals,
the Commission issued a 329-page Report and Order. In the
Matter of Expanding the Economic and Innovation
Opportunities of Spectrum Through Incentive Auctions, 29
6
FCC Rcd. 6567 (2014) (Order). The Order adopted rules for
the reverse and forward auctions. The Commission also
explained its planned implementation of the repacking
process, including how it intended to fulfill the Spectrum
Act’s requirement to undertake “all reasonable efforts” to
preserve “the coverage area and population served” of
broadcasters reassigned to new channels. 47 U.S.C.
§ 1452(b)(2). The Commission stated that it would aim to
assure that each repacked station “serves essentially the same
viewers that it served before the incentive auction.” Order,
¶ 7. Two commissioners issued statements dissenting from
various aspects of the Commission’s Order. Id. at 7038
(dissenting statement of Commissioner Pai); id. at 7048
(dissenting statement of Commissioner O’Rielly).
In August and September 2014, respectively, the National
Association of Broadcasters (NAB) and Sinclair Broadcast
Group, Inc. each filed a petition for review of the
Commission’s Order with our court. See 47 U.S.C. § 402(a);
28 U.S.C. §§ 2342(1), 2344. We consolidated the petitions
and set an expedited briefing schedule pursuant to petitioners’
request. On September 30, 2014, the Commission issued a
Declaratory Ruling to “clarify” how it “intend[ed] to preserve
the ‘coverage area’ as well as the ‘population served’ of
eligible broadcasters in the repacking process,” in an effort to
“remove any uncertainty” about its planned approach. In the
Matter of Expanding the Economic and Innovation
Opportunities of Spectrum Through Incentive Auctions, 29
FCC Rcd. 12,240, ¶ 1 (2014) (Declaratory Ruling). NAB
filed a petition for review of the Declaratory Ruling, which
we consolidated with NAB’s and Sinclair’s original petitions.
7
II.
Petitioners press a series of arguments challenging the
Commission’s implementation of the Spectrum Act’s mandate
to expend “all reasonable efforts” to preserve “the coverage
area and population served” of broadcasters reassigned to new
channels in the repacking process. 47 U.S.C. § 1452(b)(2).
We reject petitioners’ arguments.
A.
Petitioners’ principal challenge concerns 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 “make such
reassignments of television channels as the Commission
considers appropriate” when reallocating broadcast spectrum
to other uses. Id. § 1452(b)(1). The statute instructs that, in
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.” Id. § 1452(b)(2).
Petitioners seize upon the statutory instruction to use “the
methodology described in OET Bulletin 69” when
determining the coverage area and population served of each
broadcast licensee. In petitioners’ view, that language means
that the Commission must apply not just the general approach
set out in OET Bulletin 69 for determining a broadcaster’s
population served and coverage area as of February 22, 2012,
but also the specific computer software and data inputs the
Commission would have used to make those determinations
on that date. The Commission, by contrast, interprets the
phrase “methodology described in OET Bulletin 69” to refer
8
to the “procedures for evaluating television coverage and
interference that are provided for in that bulletin, not the
computer software or input values” that may have been “used
to apply that methodology in any given case.” Order, ¶ 134.
We review the Commission’s interpretation of the
Spectrum Act pursuant to the two-step Chevron framework.
Northpoint Tech., Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir.
2005); see Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984). We first ask whether Congress
“has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. If so, then “the court, as well as
the agency, must give effect to the unambiguously expressed
intent of Congress.” Id. at 842-43. But “if the statute is silent
or ambiguous with respect to the specific issue,” we proceed
to Chevron step two and ask whether the Commission’s
resolution is “based on a permissible construction of the
statute.” Id. at 843. “A ‘reasonable’ explanation of how an
agency’s interpretation serves the statute’s objectives is the
stuff of which a ‘permissible’ construction is made,” but “an
explanation that is ‘arbitrary, capricious, or manifestly
contrary to the statute’ . . . is not.” Northpoint Tech., 412
F.3d at 151 (quoting Chevron, 467 U.S. at 843-44). In that
sense, a Chevron step-two argument and a claim that the
agency has acted arbitrarily and capriciously (which
petitioners also assert here) overlap. Gen. Instrument Corp. v.
FCC, 213 F.3d 724, 732 (D.C. Cir. 2000).
1. The pertinent statutory language calls for the
Commission to “make all reasonable efforts to preserve, as of
February 22, 2012, the coverage area and population served
of each broadcast television licensee, as determined using the
methodology described in OET Bulletin 69.” 47 U.S.C.
§ 1452(b)(2). An understanding of petitioners’ and the
Commission’s competing interpretations of that provision
9
requires a bit of background on the statute’s reference to “the
methodology described in OET Bulletin 69.”
That reference concerns a document, Bulletin No. 69,
originally issued in 1977 by the FCC’s Office of Engineering
and Technology (OET) and updated in 2004. Office of Eng’g
& Tech., Fed. Commc’ns Comm’n, OET Bulletin No. 69,
Longley-Rice Methodology for Evaluating TV Coverage and
Interference (2004) (OET-69) (J.A. 490). OET-69 uses the
Longley-Rice methodology, which “make[s] predictions of
radio field strength at specific geographic points based on the
elevation profile of terrain between the transmitter and each
specific reception point,” to evaluate service coverage and
interference between stations. Id. at 1 (J.A. 492). OET-69
notes the need for a computer program to make those
calculations. Id. The computer program “takes certain inputs,
including population data, geographical terrain data, and data
about stations’ transmission facilities,” and applies the
Longley-Rice model “to generate a station’s predicted
coverage area and population served.” Order, ¶ 127.
In the course of the Spectrum Act rulemaking, OET
published a Public Notice announcing its development of a
new computer program, called TVStudy, to perform
interference analyses for broadcast stations in the reverse
auction and the repacking process called for by the Spectrum
Act. Office of Engineering and Technology Releases and
Seeks Comment on Updated OET-69 Software, 28 FCC Rcd.
950 (2013) (TVStudy PN). OET explained that the TVStudy
software would calculate television stations’ coverage areas
and populations served using the methodology described in
OET-69. Id. at 950. The Public Notice, along with OET’s
corresponding notice in the Federal Register, see Office of
Engineering and Technology Seeks Comment on Updated
OET-69 Software, 78 Fed. Reg. 11,129 (Feb. 15, 2013),
10
sought comments on the new software program and also on
proposals to update certain data inputs or to use new
databases. Those improvements, OET explained, would serve
“an important objective” by creating “software with improved
accuracy . . . that makes use of the best available data to
compute estimates of the coverage area and population served
of each broadcast television licensee.” TVStudy PN, 28 FCC
Rcd. at 952.
The Commission subsequently announced in its Order
that it would use TVStudy for the reverse auction and
repacking process. Order, ¶ 130. The Commission also
announced that it would rely on population data from the
2010 U.S. Census to determine the population served by each
broadcast station as of February 22, 2012. Id. ¶ 148. And the
Commission decided to adopt most of the other updates and
improvements proposed in OET’s Public Notice, including:
using a new terrain elevation database maintained by the U.S.
Geological Survey (rather than the previous, and no-longer-
maintained, terrain database discussed in OET-69), id. ¶ 150;
inputting actual antenna beam tilt data from each station
(instead of applying a standard antenna tilt figure for all
stations, as the computer program referred to in OET-69 had
done), id. ¶ 153; and increasing the precision of the model’s
geographic coordinates (rather than rounding those
coordinates to the nearest second, as the computer program
referred to in OET-69 had done), id. ¶ 155.
The Commission explained that its decision to “update
the computer software and input values used to implement the
OET-69 methodology” accorded with the Spectrum Act’s
“ambiguous” instruction to use “the methodology described in
OET Bulletin 69” in determining a broadcast licensee’s
coverage area and population served. Order, ¶¶ 133-34. The
Order defines the “OET-69 methodology” as comprising:
11
“(1) a specification for determining a contour that defines the
boundaries of a station’s coverage area, and (2) an algorithm
for evaluating the availability of service within that contour,
including the effects of interference from neighboring
stations.” Id. ¶ 134 n.435. Or, as the Commission’s counsel
described the methodology at oral argument: first, “you
identify the signal contour”—that is, “the area that a
[broadcast] signal of a particular strength covers”—next, “you
chop that up into a grid” containing “a number of cells,” and
then “you use the Longley-Rice propagation model to
evaluate whether or not you actually get a viewable signal in
those cells.” Oral Arg. Tr. 31. That “methodology” does not,
in the Commission’s view, encompass the specific computer
software (e.g., TVStudy) or input values (e.g., updated Census
figures) used to “implement” it in any given instance. Order,
¶ 134.
Petitioners read the statute differently. The relevant
provision, as noted, calls for the Commission to undertake
“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.” 47 U.S.C. § 1452(b)(2).
Petitioners interpret that language to mean that the
Commission must endeavor to preserve a broadcaster’s
coverage area and population served as they would have been
calculated in implementing the OET-69 methodology on
February 22, 2012. Petitioners submit that the OET-69
“methodology” is a “fixed suite of software and procedures
that existed on February 22, 2012” and that the Commission
must therefore apply OET-69 just as it would have been
applied on that date. Pet’rs’ Br. 23. Petitioners therefore
argue that the Commission is barred from making use of
software improvements or alternate data inputs that the
Commission was not using as of that date.
12
2. We first consider petitioners’ argument that the statute
unambiguously compels that conclusion at Chevron step one.
We agree with the Commission that the statutory text does not
preclude the Commission’s decision to use the improved
TVStudy software and more accurate and current data when
determining a broadcast licensee’s coverage area and
population served.
The statutory term “methodology” is wholly consistent
with the Commission’s understanding. That term is defined
as “a body of methods, procedures, working concepts, rules,
and postulates employed by a science, art, or discipline,” and
“the processes, techniques, or approaches employed in the
solution of a problem or in doing something.” Webster’s
Third New International Dictionary, Unabridged (online ed.
2015). As the Commission explained in its Order,
“[d]istinguishing between a ‘methodology’ and the ‘software’
and ‘inputs’ used for applying that methodology” is
“consistent with the ordinary meaning” of each of those
terms. Order, ¶ 134. And as the Commission further
observed, while “the methodology described in OET-69
requires a computer program and data inputs,” those are
“tools for applying” the methodology, not the methodology
itself. Id.
Petitioners contend that “the methodology described in
OET Bulletin 69” is a regulatory term of art through which
Congress unambiguously incorporated the precise software
program and data inputs the Commission would have used to
calculate a broadcast station’s coverage as of February 22,
2012. They maintain, for instance, that Congress
unequivocally barred the FCC from using 2010 Census data
when assessing a broadcaster’s population served. In other
words, Congress, in petitioners’ understanding, compelled the
Commission to calculate a broadcaster’s population coverage
13
based on obsolete figures from the 2000 Census rather than on
up-to-date figures from 2010.
Nothing in the statutory text requires us to attribute that
counterintuitive intention to Congress. While the statute
references OET-69, that bulletin contains no specification
about which Census data to use. Petitioners point to a
separate regulation, 47 C.F.R. § 73.616(e)(1), in which the
Commission as of 2008 prescribed use of 2000 Census data—
the most recent Census then available—for post-DTV-
transition station applications. That regulation, however, has
no necessary bearing on the incentive auction and repacking
processes subsequently called for by the Spectrum Act, which
had yet to be enacted at the time of the regulation’s
promulgation.
Petitioners’ argument asserts not only that Congress
inexplicably foreclosed the use of up-to-date Census figures
to assess a broadcaster’s population served, but also that
Congress, for some reason, precluded the development of
improved software tailored to implement OET-69 for
purposes of the Spectrum Act. Again, nothing in the statute
or in OET-69 itself compels that conclusion. OET-69 states
only that “[a] computer is needed to make” the Longley-Rice
radio propagation model’s “predictions,” OET-69, at 1 (J.A.
492), suggesting that, while a computer is necessary to
implement the methodology, no particular software program
inheres in the methodology. And although OET-69 explains
that there is a “computer program now used by the [FCC]
Media Bureau” to evaluate applications for new and modified
broadcast stations, id. at 8 n.1 (J.A. 499), it contemplates that
others “desiring to implement the Longley-Rice model” may
use “their own computer program,” id. at 5 (J.A. 496).
14
Additionally, as the Commission explained in the Order,
“[t]he Commission’s bureaus have used different software
programs to implement OET-69” for different purposes.
Order, ¶ 146. “Each type of software provides a different
utility that serves the purposes for which it is used (i.e.,
licensing, interference and international coordination).” Id.
Especially in that light, there is no reason to conclude that,
merely by referencing “the methodology described in OET
Bulletin 69,” Congress sought to foreclose the Commission’s
development of software designed to best implement the
incentive auction and repacking process newly called for by
the Spectrum Act. At the very least, the statute does not
unambiguously compel that surprising reading.
We are unpersuaded by petitioners’ identification of two
prior instances in which the Commission arguably used the
word “methodology” to refer both to OET-69’s general
approach and to particular data inputs. Petitioners point to no
instance in which Congress applied the term in that fashion.
Nor can petitioners identify anything that supports their
reading in OET-69 itself—the document contains no
definition of the word “methodology.” Further, the two prior
instances of Commission usage arose in contexts unrelated to
the Spectrum Act. Those instances identified by petitioners
thus fall well short of establishing that Congress
unequivocally barred the Commission from using improved
software and updated data inputs when applying OET-69
under that Act.
In addition, the two instances noted by petitioners are not
models of clarity. The first concerns the Commission’s
adjustments in 2008 to the rules governing the then-ongoing
DTV transition. See Third Periodic Review of the
Commission’s Rules and Policies Affecting the Conversion to
Digital Television, 73 Fed. Reg. 5634 (Jan. 30, 2008). There,
15
the Commission stated that it was “revis[ing] the OET 69
interference analysis methodology to make the results more
accurate,” including by using 2000 Census data in evaluating
station applications. Id. at 5668; see 47 C.F.R.
§ 73.616(e)(1). Although the Commission observed that it
was revising “the OET 69 interference analysis
methodology,” it may have been using shorthand to describe a
revision to its particular application of the methodology in
connection with the DTV transition. And notably, whereas
the Commission sought to make its application of OET-69
“more accurate” by using the most current Census data,
petitioners’ reading of the Spectrum Act would have the
opposite effect here, precluding the use of up-to-date Census
data. The second instance identified by petitioners concerns
an FCC ruling (also related to the DTV transition) referring to
“the default vertical antenna patterns inherent in the OET-69
methodology.” In the Matter of Qualcomm Inc. Petition for
Declaratory Ruling, 21 FCC Rcd. 11,683, ¶ 14 (2006). That
oblique statement again may be a shorthand reference to the
Commission’s application of OET-69’s methodology in that
context. But even if otherwise, it fails to establish a broader
understanding under which any reference to that methodology
necessarily incorporates the particular computer software and
data inputs in use at any particular time.
For those reasons, we reject petitioners’ contention at
Chevron step one that the statute unambiguously forecloses
the Commission’s use of the improved TVStudy program
along with updated data inputs when applying OET-69 to
determine a broadcaster’s coverage area and population
served.
3. Proceeding to Chevron step two, we ask whether the
Commission offered a “reasonable explanation of how [its]
interpretation serves the statute’s objectives.” Northpoint
16
Tech., 412 F.3d at 151 (internal quotation marks omitted).
The Commission’s Order readily met that standard.
The Commission persuasively explained why the
TVStudy software is both more user-friendly and better
adapted to handle the kinds of computations the Commission
will need to conduct in the reverse auction and repacking
process called for by the Spectrum Act. See Order, ¶¶ 130-
32. The repacking, the Commission observed, “presents a
complex engineering problem that must be solved repeatedly
during the course of the reverse auction bidding process:
namely, how to determine which channels to assign to stations
that will stay on the air, consistent with statutory
requirements, as well as . . . technical requirements.” Id. ¶ 6.
That requires a computer program capable of “undertak[ing],
in a timely fashion, the volume of interference calculations
necessary to ensure that all stations that will remain on the air
following the auction are assigned channels in accordance
with the provisions of the Spectrum Act.” Id. ¶ 130; see id.
¶ 19. The Commission’s engineering experts tell us that
TVStudy is up to the task: for instance, unlike the
Commission’s prior software, TVStudy can “create and use a
uniform nationwide grid for analysis of coverage area and
population served” and “undertake pairwise interference
analyses of every station that will remain on the air after the
incentive auction and generate data that identify combinations
of stations that can (or cannot) co-exist on the same channel
or adjacent channels.” Id. ¶¶ 130, 132 (internal footnote
omitted). And it can perform that analysis much more
quickly than the prior software could. Id. ¶ 132.
The Commission also explained that its use of updated
and more precise data inputs advanced its statutory mandate
to use “all reasonable efforts” to preserve each station’s
coverage area and population served as of February 22, 2012.
17
Id. ¶ 130. It is self-evident that the accuracy of the
Commission’s determinations would be improved by its use
of more recent population data, more precise terrain
calculations, and more exact technical information. Indeed,
the terrain database mentioned in the 2004 version of OET-69
has become “obsolete” and is no longer distributed or
maintained by the U.S. Geological Survey. Id. ¶ 150.
Moreover, while petitioners believe that the Commission paid
insufficient attention to the interests of broadcasters
accustomed to the old program, the Commission explained
that its engineers had taken care in designing and developing
TVStudy “to ensure that it faithfully implements the OET-69
methodology, provides results that closely match those of the
earlier computer software (notwithstanding updates that
improve accuracy), and avoids bias that would systematically
reduce broadcast stations’ coverage areas and populations
served.” Id. ¶ 140.
The Spectrum Act aims to enhance the technological
capacity of the United States by requiring the Commission to
conduct an incentive auction that is “the first such auction
ever attempted worldwide.” NPRM, ¶ 4. The Commission
understandably declined to fulfill that forward-looking
mandate by using obsolete software and inaccurate data.
Petitioners’ insistence that the Commission do so runs counter
to the statute’s basic objectives.
We thus reject petitioners’ argument that the
Commission’s decision to use TVStudy and updated inputs
amounts to an unreasonable interpretation of the Spectrum
Act at Chevron step two. Our analysis also suffices to
dispense of petitioners’ arbitrary-and-capricious arguments to
the same effect. See Gen. Instrument, 213 F.3d at 732.
18
B.
Petitioners also lodge a procedural challenge to the
Commission’s decision to use TVStudy. Petitioners argue that
the Commission’s decision was flawed because the
Commission’s Notice of Proposed Rulemaking for the
Spectrum Act failed to include a proposal to use a new
computer program or updated data inputs. The only notice
regarding the Commission’s planned use of TVStudy, they
maintain, came from OET, a staff-level Commission Office,
and not from the full Commission. Petitioners invoke our
court’s decision in Sprint Corp. v. FCC, in which we found
that the FCC failed to comply with the Administrative
Procedure Act’s notice-and-comment requirements when the
only public notice regarding the Commission’s rule change
came from the FCC’s Common Carrier Bureau. 315 F.3d
369, 376-77 (D.C. Cir. 2003); see 5 U.S.C. § 553(b).
We need not examine in detail the interplay between
§ 553(b)’s requirements and the Commission’s actions here,
however, because any error in OET’s (rather than the
Commission’s) issuing the Public Notice was certainly
harmless. See 5 U.S.C. § 706 (courts shall take “due account”
of “the rule of prejudicial error” in reviewing agency action);
U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 41 (D.C. Cir. 2005).
In this regard, Sprint, on which petitioners rely, materially
differs from this case. In Sprint, the Common Carrier Bureau
did not publish its notice in the Federal Register. 315 F.3d at
374. Additionally, the Bureau’s notice in Sprint—which
sought comment on a party’s petition for clarification—
“described a proposal completely different from that which
the FCC ultimately adopted,” U.S. Telecom, 400 F.3d at 41
n.25 (describing Sprint), such that “the parties did not
appreciate that the Commission was contemplating” the rule it
ultimately issued, Sprint, 315 F.3d at 376.
19
Here, OET published its notice in the Federal Register as
a “proposed rule” of the Commission. See Office of
Engineering and Technology Seeks Comment on Updated
OET-69 Software, 78 Fed. Reg. 11,129. The notice stated
unequivocally that “[t]he Commission plans to use this new
software in connection with the proposed broadcast television
spectrum incentive auction,” id. at 11,129, and it asked for
comment both on the software generally and on all of the
various data inputs the Commission was considering
changing, see id. at 11,131-32. The notice therefore “made
the issue under consideration crystal clear.” U.S. Telecom,
400 F.3d at 41. Petitioners make no suggestion that the
Commission’s decision to use TVStudy and the updated data
sets departed in any significant way from OET’s account of
its proposals in the Federal Register. In fact, petitioners
acknowledge that the Commission more or less adopted
OET’s proposals wholesale. Moreover, NAB and other
industry members articulated their opposition to the use of
TVStudy and the proposed data sets in written submissions
and ex parte meetings with Commission staff. And the
Commission acknowledged and responded to their concerns
throughout its Order. See, e.g., Order, ¶¶ 129, 147.
Consequently, this is not a case in which the petitioner
has made a “colorable claim that it would have more
thoroughly presented its arguments had it known that the
Commission was contemplating a rulemaking,” such that the
effect of any procedural error is “uncertain.” Sprint, 315 F.3d
at 377. Rather, this is a case in which it is apparent that any
procedural error was non-prejudicial. See U.S. Telecom, 400
F.3d at 41; City of Arlington v. FCC, 668 F.3d 229, 244-45
(5th Cir. 2012).
20
C.
Aside from their unsuccessful challenge to the
Commission’s use of TVStudy, petitioners press two
additional arguments concerning the Commission’s statutory
obligation to “make all reasonable efforts to preserve, as of
February 22, 2012, the coverage area and population served
of each broadcast television licensee.” 47 U.S.C.
§ 1452(b)(2). Neither argument persuades us.
1. Petitioners argue that the Commission failed to make
reasonable efforts to preserve the “population served” by a
station when it declined to protect repacked stations against
so-called “terrain loss” occasioned by reassignment to a new
channel. The Commission interpreted “population served” to
mean those persons who reside in a station’s “coverage area”
in locations at which the station’s signal avoids interference
from other stations. Order, ¶ 179. The Commission
explained that it intended to “preserve” that coverage area in
the repacking process by replicating the station’s existing
signal contour on its new channel, including by allowing
power adjustments necessary to enable the signal to continue
to reach the same geographic area. Id. ¶ 166. But because
“radio signals propagate differently on different frequencies,”
a station’s reassignment to a different channel means that “its
technical facilities (transmit power and antenna pattern) must
be modified to preserve its coverage area.” Id. ¶ 163. “With
such modifications,” in turn, “there may be some small
differences in the specific geographic areas served within the
station’s . . . contour, even though the total geographic area
within the station’s contour remains the same.” Id. That is
called terrain loss, i.e., loss of coverage because the station’s
new frequency interacts in new ways with the terrain in the
station’s geographic contour. See Pet’rs’ Br. 49; Order,
¶ 163.
21
The Commission described the possibility of terrain loss
as “unavoidable,” explaining that “exact replication of
coverage within a station’s contour is not always attainable
under the laws of physics.” Order, ¶ 170. During the
comment period, commenters suggested that the Commission
should make up for terrain loss by expanding a repacked
station’s signal contour. See id. ¶ 172. The Commission
declined to do so because “[a]llowing contour extensions
during the repacking process [would] make it more difficult to
repack stations efficiently.” Id. ¶ 173. The Commission
similarly declined to withhold consideration of any post-
auction channel reassignment that would result in anything
greater than a de minimis change in coverage. Id. According
to the Commission, “[r]educing the number of potential
channels significantly limits [its] flexibility to assign channels
in the repacking process, increasing the potential costs of
clearing the spectrum and decreasing the likelihood of a
successful auction outcome.” Id. And the Commission
interpreted the Act’s preservation mandate “to require that we
make all reasonable efforts to preserve each station’s
coverage area and population served without sacrificing the
goal of a successful incentive auction.” Id. (emphasis added).
Petitioners argue that, in electing to proceed with channel
reassignments notwithstanding the possibility of terrain loss,
the Commission failed to satisfy its duty to make reasonable
efforts to preserve a station’s pre-auction customer base. We
disagree. As an initial matter, the Commission explained that
“the majority” of UHF broadcast stations would be reassigned
to channels lower in the UHF band whose “superior
propagation characteristics” could be expected to decrease
terrain loss. Id. ¶ 174. With respect to those circumstances in
which some terrain loss could occur, the Commission’s
decision to live with that possibility lay well within its latitude
under § 1452(b)(2).
22
Congress’s instruction to make “all reasonable efforts” to
preserve the service of existing stations did not constrain the
Commission to accept nothing more than a de minimis change
in coverage area or population served in the repacking
process. See id. ¶¶ 123, 173. In deciding which preservation
efforts would be “reasonable,” it was entirely permissible for
the Commission to take into account the Spectrum Act’s
overarching objective of repurposing broadcast spectrum.
The term “reasonable,” we have explained, “opens a rather
large area for the free play of agency discretion.” Orloff v.
FCC, 352 F.3d 415, 420 (D.C. Cir. 2003); see Capital
Network Sys., Inc. v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994)
(“Because ‘just,’ ‘unjust,’ ‘reasonable,’ and ‘unreasonable’
are ambiguous statutory terms, this court owes substantial
deference to the interpretation the Commission accords
them.”). The Commission reasonably exercised its discretion
in concluding that a prohibition against any reassignments
carrying a risk of terrain loss would unduly limit its flexibility
in connection with the reverse auction and repacking process.
2. Petitioners contend that the Commission contravened
its duty to preserve repacked stations’ coverage areas by
failing adequately to account for unpopulated areas within a
station’s geographic contour. The Commission explained
that, for each station potentially subject to the repacking
process, it will create an “interference-paired file” that lists all
the other stations that could not be assigned to operate on the
same channel or an adjacent channel due to concerns about
signal interference. Order, ¶ 114. In a footnote, the
Commission noted that the “interference-paired file will
match the coverage area of a station to the degree that the
area is populated.” Id. ¶ 114 n.372 (emphasis added).
Petitioners argue that the footnote amounts to an
announcement that the Commission intends to preserve a
station’s geographic coverage area only to the extent it is
23
populated, in derogation of the obligation to make all
reasonable efforts to preserve coverage area.
As Commission counsel clarified during oral argument,
however, when the Commission replicates a station’s
preexisting signal contour on its new channel as part of the
repacking process, unpopulated areas will remain within the
protected contour when there is no signal interference to those
areas. Oral Arg. Tr. 40; see Declaratory Ruling, ¶ 8. Insofar
as a possibility of signal interference exists, the Commission
reasonably decided against insulating an area from
interference if it is unpopulated—i.e., if there are no viewers
affected by the interference. As the Commission explained,
the term coverage area “defines the geographic region within
which a signal is predicted to have a specified field strength.”
Declaratory Ruling, ¶ 8. And the Commission “fulfill[s] the
statutory obligation to ‘preserve’ a station’s coverage area . . .
by ensuring that [it] can continue to operate at technical
parameters sufficient to maintain [its] coverage area[] as of
February 22, 2012.” Id. Protecting an area from signal
interference even if it is unpopulated, the Commission
reasoned, “would significantly constrain [its] flexibility in the
repacking process and impair the efficiency of the final
television channel assignment scheme,” perhaps to no great
purpose—for instance, a station’s unpopulated coverage areas
may be uninhabitable. Id. ¶ 10. Again, we find that the
Commission permissibly considered the Spectrum Act’s
overall goals in deciding how to exercise its “reasonable
efforts” mandate.
D.
In their final joint argument, petitioners attack one of the
Commission’s determinations concerning which kinds of
broadcast stations it will protect in the repacking process.
24
Petitioners take issue with the Commission’s decision to
disregard service provided by “fill-in translators” (also called
“digital replacement translators,” “DRTs,” or “digital low
power TV translators”) in determining a broadcast licensee’s
coverage area. See Order, ¶¶ 237-43. A fill-in translator is a
low-power station that receives the broadcast signal of a full-
power station and simultaneously retransmits that signal on
another channel. In the Matter of Amendment of Parts 73 and
74 of the Commission’s Rules to Establish Rules for Digital
Low Power Television, Television Translator, and Television
Booster Stations and to Amend Rules for Digital Class A
Television Stations, 19 FCC Rcd. 19,331, ¶ 5 (2004). A
broadcaster can use such stations to “fill in” service to terrain-
obstructed areas within the primary station’s coverage
contour. Id. The Commission created that class of stations in
2009 to enable full-power stations to restore service to areas
that lost coverage as a result of the digital transition. In the
Matter of Amendment of Parts 73 and 74 of the Commission’s
Rules to Establish Rules for Replacement Digital Low Power
Television Translator Stations, 24 FCC Rcd. 5931, ¶ 1 (2009)
(DRT Order).
Petitioners argue that the decision to leave fill-in
translators unprotected contravenes the Spectrum Act’s
preservation mandate and is otherwise arbitrary and
capricious. Once again, however, we defer to the
Commission’s reasonable implementation of the mandate.
The provision calls for efforts to preserve the coverage area
and population served “of each broadcast television licensee.”
47 U.S.C. § 1452(b)(2). The Act, in turn, defines “broadcast
television licensee” as “the licensee of . . . a full-power
television station; or . . . a low-power television station that
has been accorded primary status as a Class A television
licensee” under the Commission’s rules. Id. § 1401(6). As
the Commission explained, fill-in translators fall outside that
25
definition: they are not full-power television stations, and they
do not qualify as Class A stations. The preservation
mandate’s terms therefore do not extend to fill-in translators.
See Order, ¶ 238.
Petitioners argue that the Commission nonetheless had an
obligation to protect fill-in translators because a broadcast
licensee’s “coverage area and population served” may come
in part from retransmission via a fill-in translator. While the
Commission perhaps could have elected to protect fill-in
translators for that reason, the statute does not mandate their
protection. Fill-in translators possess a separate license from
the station whose programming they retransmit (though the
translator license is “associated with” the main station’s
license). See DRT Order, ¶ 23; Order, ¶ 243. And the two
stations often operate on different channels. See DRT Order,
¶ 4; Order, ¶ 242. A full-power station’s license thus need
not be considered to encompass fill-in service provided by
another station under a separate license. The Commission’s
determination is all the more reasonable in light of the distinct
and secondary status the Commission has generally afforded
to translator stations, see Order, ¶¶ 239 & n.741, 244, and the
Commission’s assessment of the significant practical
difficulties that would attend protection of fill-in translators,
see id. ¶ 242 & n.747. In particular, the Commission would
need to “protect a separate channel facility for each DRT
operated by a full power station, significantly affecting
repacking flexibility in markets where they are licensed.” Id.
We defer to the Commission’s reasonable judgment about the
treatment of fill-in translator stations.
III.
Petitioner Sinclair Broadcast Group, not joined by NAB,
raises two additional challenges to the Commission’s Order.
26
First, Sinclair takes issue with the Commission’s
establishment of a 39-month construction period within which
reassigned broadcasters are expected to transition their
services to their new channels. The 39-month period has
come to be known as the “go-dark” deadline because
broadcasters must cease operations on their pre-auction
stations within that time. Second, Sinclair attacks the
Commission’s interpretation of the Spectrum Act’s
requirement that “at least two competing licensees participate
in the reverse auction” before the Commission accepts a
broadcaster’s relinquished spectrum. 47 U.S.C.
§ 309(j)(8)(G)(ii). We reject both of Sinclair’s challenges.
A.
We initially address the Commission’s argument that
Sinclair lacks Article III standing to pursue its two arguments
in our court. To establish its standing, Sinclair must show:
(1) “an ‘injury in fact’ that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical;
(2) [that] the injury is fairly traceable to the challenged action
of the defendant; and (3) [that] it is likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
When a party claims a future harm, as Sinclair does here, it
must show a “substantial probability of injury,” Sierra Club v.
Jewell, 764 F.3d 1, 7 (D.C. Cir. 2014), or a “substantial risk
that the harm will occur,” Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2341 (2014) (internal quotation marks
omitted). Sinclair has made that showing with respect to both
of its challenges.
1. With regard to the 39-month deadline, the
Commission argues that Sinclair’s claim of future injury is
27
unduly speculative because it is unknown whether any
Sinclair station will in fact be subject to repacking. But
Sinclair submitted a declaration from its Vice President of
Advanced Technology asserting that the company owns “at
least 27 stations in the portion of the television broadcast band
that is most likely to be cleared and repacked in the auction.”
Decl. of Mark A. Aitken ¶ 19 (Aitken Decl.) (Pet’rs’ Add.
46). That assertion draws support from Sinclair’s reasoned
predictions about which channels the Commission will clear
upon reaching certain “clearing targets”—i.e., amounts of
spectrum obtained and sold—during the incentive auction.
See id. ¶¶ 17-19 (Pet’rs’ Add. 45-46). In the Commission’s
view, even if certain of Sinclair’s stations are repacked,
Sinclair likely would be able to construct the necessary
facilities before the go-dark deadline. That, however, is the
very issue in dispute on the merits: Sinclair asserts that 39
months is insufficient time, see id. ¶¶ 7-15 (Pet’rs’ Add. 40-
45), and the Commission disagrees, see Order, ¶¶ 569-71.
For purposes of the threshold standing stage, we need not
(and should not) assume the accuracy of the Commission’s
position. See In re Navy Chaplaincy, 697 F.3d 1171, 1178
(D.C. Cir. 2012); City of Waukesha v. EPA, 320 F.3d 228, 235
(D.C. Cir. 2003). Rather, based on its description of the
“inescapable challenges” facing broadcasters in the repacking
process, Aitken Decl. ¶ 12 (Pet’rs’ Add. 43), Sinclair offers
enough to show a “substantial risk” that one of its stations
will miss the go-dark deadline.
2. Sinclair also has standing to raise its second challenge.
As discussed below, the Commission interprets the
requirement that “at least two competing licensees participate
in the reverse auction” to be satisfied as long as two licensees
anywhere in the country submit a valid application to take
part in the auction and the two licensees are not commonly
controlled. Order, ¶¶ 413-14. The Commission contends that
28
its interpretation cannot injure Sinclair because “a single
licensee in any specific market (as opposed to in the auction
as a whole) can only benefit from the absence of a directly
competing bidder, as that absence will reduce downward
pressure on reverse auction payments.” Resp’ts’ Br. 65.
Sinclair, for that reason, might well lack standing if it claimed
injury only as a future auction participant. But Sinclair also
attests that certain of its stations will not participate in the
reverse auction, which leaves those stations vulnerable to
repacking and its attendant risks. Aitken Decl. ¶ 17 (Pet’rs’
Add. 45). Sinclair further explains that, if the Commission is
able to acquire more relinquished spectrum in the reverse
auction (as the Commission’s broad interpretation of the two-
participant requirement would serve to enable), the
Commission then would repack more stations against their
will. Id. The Commission does not counter Sinclair’s
articulation of the link between the Commission’s reverse-
auction clearing targets and the amount of spectrum it will
subsequently repack. We therefore find that Sinclair has
shown a substantial risk that the Commission’s interpretation
of the two-participant restriction will ultimately work to
Sinclair’s detriment.
B.
Although Sinclair has standing to press its two
challenges, we find in favor of the Commission on the merits
of both.
1. With respect to the Commission’s decision to
establish a 39-month go-dark period, we perceive nothing
arbitrary or capricious about the Commission’s choice of that
cut-off point. The Commission chose a 39-month period
based on the combination of a three-month period within
which to apply for a construction permit and a 36-month
29
period within which to transfer facilities to the new channel.
Although Sinclair submits that the period is unduly brief, a
number of commenters on the broadcaster side, including
NAB, pushed for a still shorter period of less than 36 months.
Order, ¶ 568 n.1604. Moreover, the Commission’s choice
accords with FCC rules requiring licensees constructing
entirely new facilities to do so within three years. Id. ¶ 568;
see 47 C.F.R. § 73.3598(a). And the transition period also
coheres with the Spectrum Act’s requirement that the
Commission reimburse reassigned broadcasters for their
relocation expenses within three years of the forward auction.
Order, ¶ 568; see 47 U.S.C. § 1452(b)(4)(D).
Sinclair argues that the Commission failed to account for
significant resource and labor shortages in the supply of
broadcast-television construction services, which it predicts
will only grow during the repacking process under the
pressure of increased demand. The Commission specifically
noted those concerns, however, and explained that the
transition would proceed in phases to “eliminat[e] the need
for all stations to obtain their equipment or schedule a tower
crew at the same time.” Order, ¶ 571. In addition, the
Commission expects service providers to respond to the surge
in demand, id., a predictive judgment about a matter within its
expertise to which we accord “substantial deference.” See
Nuvio Corp. v. FCC, 473 F.3d 302, 306-07 (D.C. Cir. 2006).
To be sure, the Commission, while expecting the vast
majority of relocated broadcasters to meet the 39-month
deadline, acknowledged that some stations might face
challenges in doing so. Order, ¶ 569. But the Commission
determined that extending the go-dark deadline beyond 39
months “could depress forward-auction participation or the
value of investments made by forward auction winners,”
some of whom would already have to wait three years before
30
enjoying the fruits of their investments. Id. ¶ 572 & n.1613.
We find that the Commission reasonably balanced the
Spectrum Act’s competing imperatives. Cf. Fresno Mobile
Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C. Cir. 1999).
2. Sinclair fares no better with respect to its challenge
concerning the requirement that “at least two competing
licensees participate in the reverse auction” before the
Commission accepts and transfers a broadcaster’s
relinquished spectrum. 47 U.S.C. § 309(j)(8)(G)(ii). The
Commission interpreted the requirement to be met if two
broadcast licensees who lack common control successfully
submit applications to take part in the reverse auction. Order,
¶¶ 413-14. According to that interpretation, as long as a
broadcaster presents a complete application and complies
with the auction rules, it need not actually tender a bid to be
considered an auction “participant.” Id. ¶ 413. Moreover, the
two broadcasters need not operate in a common geographic
market or channel location to be considered “competing.” Id.
¶ 414.
The statutory language does not foreclose the
Commission’s interpretation at Chevron step one. Sinclair
maintains that a broadcaster only can be said to “participate”
in the auction if the broadcaster accepts the Commission’s
offer for its license. But the ordinary meaning of
“participate” is to “take part in something (as an enterprise or
activity) usually in common with others.” Webster’s Third
New International Dictionary, Unabridged (online ed. 2015).
Just as one could be said to “take part” in an ordinary auction
by arriving at the auction house and considering whether to
bid on the offerings, a broadcaster could be said to “take part”
in the reverse auction by demonstrating eligibility and
considering the Commission’s opening price. The statute’s
use of the participial adjective “competing” is likewise
31
ambiguous. To “compete” is to “seek or strive for something
(as a position, possession, reward) for which others are also
contending,” or to “vie with another or others for or as if for a
prize.” Webster’s Third New International Dictionary,
Unabridged (online ed. 2015). But the statute does not say
what the broadcasters must compete for. See 47 U.S.C.
§ 309(j)(8)(G)(ii).
The Commission resolved those ambiguities by adopting
a sensible interpretation in the context of the reverse auction’s
design. With regard to “participate,” the Commission
reasoned that “the knowledge that another [licensee] might
bid will create competitive pressure for a second bidder to
accept lower incentive payments than it would absent any
competition,” even if the other licensee does not in fact
submit a bid. Order, ¶ 413 (emphasis added). And with
regard to “competing,” the Commission explained that, under
its auction design framework, “regardless of their pre-auction
geographic or channel location, all participants in the reverse
auction will compete to receive incentive payments from the
same limited source—the aggregate proceeds of the forward
auction.” Id. ¶ 414. The Commission, as Sinclair argues,
adopted a broad understanding of the two-participant
requirement: theoretically, the Commission’s rule would be
met if any two broadcasters anywhere in the country submit
compliant applications and one of them accepts the
Commission’s opening offer for its license. Congress,
however, enacted no specification that the two licensees must
occupy the same geographic market or possess licenses
covering substantially the same contour. Congress instead
granted the Commission definitional discretion to be
exercised in the context of the particular incentive auction the
Commission ultimately designed.
32
Sinclair does not purport to offer a better interpretation of
“competing” in the context of the reverse auction for
broadcast spectrum. And we are hard-pressed to come up
with one. That two broadcasters may compete in the
provision of television service in a particular geographic
market fails to determine the broadcasters’ relationship in
connection with the reverse auction. The Commission will
offer buy-out prices in that auction on a station-by-station
basis, with the prices getting lower in each round. Id. ¶¶ 450,
453. The prices will take into account not only the station’s
geographic location but also its potential to cause interference
to other stations, because the latter could affect the
Commission’s flexibility in making reassignments during the
repacking process. Id. ¶ 450. As the Commission explained,
“the interdependent nature of the repacking process, where
repacking one station may have widespread effects across
geographic areas with possible nationwide band plan
implications, means that participants will be affecting, and
competing with, licensees far beyond their contour, DMA
[Designated Market Area], or channel.” Id. ¶ 414. Given the
myriad ways in which one broadcaster’s spectrum offerings
could be said to be “competing” with the offerings of another,
the Commission reasonably settled on a definition focused on
the one way in which all broadcasters unquestionably interact
with one another in the reverse auction: they all vie for the
same limited pool of forward-auction proceeds.
The Commission, moreover, persuasively explained why
it rejected a geography-based definition of “competing.”
Such a rule “could mean that an otherwise willing and eligible
broadcast television licensee would not be allowed to bid in
the reverse auction if it is the only participant in its DMA.”
Id. ¶ 415. We agree with the Commission that if a wireless
provider stands willing to pay enough in the forward auction
to cover the broadcast licensee’s buy-out price and other
33
associated expenses, there is no apparent reason to deny the
Commission the ability to accept the broadcaster’s bid to
relinquish that spectrum. To require the Commission to forgo
the spectrum merely because no other broadcaster in the same
geographic market wishes to sell “would limit the
Commission’s ability to allow market forces to determine the
highest and best use of spectrum” and prevent acquisition of
adequate spectrum to allow the auction to close. Id. We are
unable to conclude that Congress intended to bring about such
a result.
* * * * *
We have considered petitioners’ other arguments and
concluded that none has merit. Accordingly, we deny the
petitions for review.
So ordered.