[00:00:01] Speaker 00: Case number 14-1154 at L, National Association of Broadcasters petitioner versus Federal Communications Commission at L. Mr. Strada for petitioner, National Association of Broadcasters. [00:00:13] Speaker 00: Mr. Hayne for petitioner, St. [00:00:14] Speaker 00: Clair Broadcast Group, Inc. [00:00:16] Speaker 00: Mr. Lewis for the respondent and Mr. Perella for the interveners. [00:01:00] Speaker 04: Good morning, Mr. Estrada. [00:01:02] Speaker 01: Thank you, Ms. [00:01:02] Speaker 01: Henderson, and may it please the Court, Miguel Estrada for NAB. [00:01:07] Speaker 01: Congress expressly designed a voluntary auction process that assures broadcasters that those who remain on the back end and will be repacked will retain their coverage area and population served [00:01:21] Speaker 01: as determined using a particular methodology and as of a specific date in 2012. [00:01:32] Speaker 01: What the commission has done in this order is to turn the voluntary process into a coercive process designed to tell you now [00:01:40] Speaker 01: that on the back end you will have much less than you had in 2012, both in order to stampede bits into the auction and in order to have more spectrum on the back end, supposedly to serve the higher ends of the spectrum. [00:01:55] Speaker 01: That is the practical consequence of what's going on. [00:01:59] Speaker 01: There are many legal errors, including those of interpretation of the Spectrum Act, and massive procedural failings under the APA, because a lot of what we're complaining about was never part of the notice of proposed rulemaking. [00:02:12] Speaker 01: The Commission actually doesn't dispute that this was in the notice of proposed rulemaking. [00:02:18] Speaker 01: Now, let's tackle some of the issues under the Spectrum Act. [00:02:22] Speaker 01: As of the date that Congress picked, there was only one way to determine what the coverage area and population served was. [00:02:31] Speaker 01: There was an OET 69, and it was used primarily, if not exclusively, for one purpose. [00:02:39] Speaker 01: You filed an application for a license under the rules, and under the regulation, you applied the OET 69 bulletin as it exists [00:02:48] Speaker 01: today and then. [00:02:49] Speaker 01: It has nothing to change in this roommate. [00:02:51] Speaker 09: Can I ask you a question on this part of the case? [00:02:54] Speaker 09: So if the statute said the following instead of what it actually says, suppose the statute starts out, the relevant provision, which is 1452B2, I think, [00:03:06] Speaker 09: If it starts out by saying in making any reassignments or reallocations under Paragraph 1B, et cetera, et cetera, the coverage area and population served, I'm sorry, 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, period. [00:03:26] Speaker 09: And then it says, for purposes of determining the coverage area and population served of each broadcast licensee as of February 22, 2012, the Commission shall use, quote, the methodology described in OET Bulletin 69, close quote. [00:03:42] Speaker 09: So that makes clear that the February 22, 2012 date tells you the date as of which the coverage area and the population served are going to be calculated. [00:03:55] Speaker 09: But it doesn't tell you that the OET Bulletin 69 that's going to be applied has to be the OET Bulletin 69 that was going to, that was in existence as of that date. [00:04:04] Speaker 01: Well, you read it very quickly and your alternative statute is, I think, even longer than the actual statute. [00:04:09] Speaker 01: It is. [00:04:09] Speaker 01: It is. [00:04:10] Speaker 01: And so what I think gets left on the cutting board, and I think this is a useful question to simplify what's wrong with the commission's analysis, is that the way that the commission reads the statute, this statute could be 20 words instead of 45. [00:04:26] Speaker 01: I mean, you know, the commission has read the statute to say the commission shall use reasonable efforts to [00:04:37] Speaker 01: preserve populated areas to the extent it believes it's reasonable and consistent with other goals under the Act. [00:04:44] Speaker 01: And as I heard your alternative statute, I was struck that the things that are missing are the same things that the Commission takes out of the statute, which is as of a particular date, you have to be able to determine something. [00:04:59] Speaker 09: It's still determining it as of that date. [00:05:03] Speaker 09: It's just the thing that's being determined is coverage area and population served as of that date. [00:05:08] Speaker 09: But then you're applying OET Bulletin 69, not in the way that OET Bulletin 69 would have been applied on that date. [00:05:17] Speaker 09: You're just applying OET Bulletin 69. [00:05:20] Speaker 09: more generally. [00:05:21] Speaker 01: Sure, but let's then focus on what the point would be of specifying any methodology. [00:05:27] Speaker 01: It's not as if there was a raging debate in Congress as to whether it was lonely rice or some other model that was favored by the [00:05:36] Speaker 01: Republican minority. [00:05:38] Speaker 01: This was a technical rule that was already existing in a bulletin that was used for a specific purpose. [00:05:45] Speaker 01: And I think I really need to emphasize that, you know, the methodology, as the commission sees it, is an empty vessel. [00:05:52] Speaker 01: You change all the data sources and you can change what the outcome is so that they have turned it, as the CTI ultimately admits, into the lonely rise model [00:06:01] Speaker 01: Now, the problem with that is that there is no point for Congress in specifying a methodology for the commission's discretion to be restrained and leaving all of the aspects of the methodology that control the outcome that Congress specified up to the commission's discretion. [00:06:19] Speaker 09: Well, then let me ask one question that maybe makes it a little more concrete, which is the debate about whether it's appropriate to use 2010 census data as opposed to 2000 census data. [00:06:28] Speaker 09: And as I understand your argument, [00:06:30] Speaker 09: Because what the statute compels the commission to do, you say, is to apply OET Bulletin 69 as it would have been applied on that date, you have to use 2000 census data. [00:06:43] Speaker 09: And I guess one way I would ask the question is this. [00:06:45] Speaker 09: The key statutory text for the purposes of this part is methodology described in OET Bulletin 69. [00:06:51] Speaker 09: OET Bulletin 69 existed in 1997. [00:06:57] Speaker 09: Existed in 1997. [00:07:00] Speaker 09: So in 1997, OET Bulletin 69 obviously couldn't use 2000 census data. [00:07:07] Speaker 09: There's nothing about the phrase methodology described in OET Bulletin 69 that itself compels the use of 2000 census data. [00:07:15] Speaker 01: Well, I think that that's right, but actually that brings me to one of the key points as to why Congress's understanding of methodology had to be ours and not theirs. [00:07:24] Speaker 01: Because when the Commission had to do the transition to digital television in 2008-2009, by notice of common rulemaking, it upgraded the methodology [00:07:37] Speaker 01: to include the 2000 census. [00:07:39] Speaker 01: So therefore, in a published ruling in 2009, which is a 73 federal register 5668, the commission said, notice on common rulemaking, we will revise the OEP interference analysis methodology [00:07:54] Speaker 01: to use the 2000 census. [00:07:56] Speaker 09: So that is unfortunate wording on the commission's part. [00:07:59] Speaker 09: I'm sure that there's no doubt about that. [00:08:01] Speaker 09: But if you just bear with me just one second, which is I take your point, and I understand why you're making that response. [00:08:09] Speaker 09: But if you take that response out of the field of play just for a second, and you just look at the statutory language, [00:08:15] Speaker 09: I guess my question is, the quote methodology described in OET Bulletin 69, close quote, that doesn't tell you that you have to use any particular census? [00:08:25] Speaker 01: Well, I think that in the context, I mean, we can go [00:08:34] Speaker 01: It does not in high verba, but it does cite to the regulation that incorporates the change that I just gave you, which is 47 CFR 73.616E1. [00:08:44] Speaker 01: The statute cites the regulation? [00:08:47] Speaker 09: No, no, no. [00:08:48] Speaker 01: The bulletin cites direct. [00:08:54] Speaker 01: And so ultimately... Well, the bulletin, as of [00:08:57] Speaker 09: as of October 12, I mean as of February 22, 2012, but the bulletin in 1997 obviously didn't cite that. [00:09:05] Speaker 01: Right. [00:09:07] Speaker 01: Well, I think it did, it's just that the regulation has been updated. [00:09:10] Speaker 01: I see, I see, okay. [00:09:11] Speaker 01: But, you know, the point here, Your Honor, is that [00:09:16] Speaker 01: I do not want to fall into the game that the commission wants to play, which is I could come up with alternative dictionary definitions of methodology that involve the plug-in of inputs and basically say that this textually ending the abstract [00:09:32] Speaker 01: could be any mathematical formula. [00:09:35] Speaker 01: There's no point in specifying that for two reasons. [00:09:38] Speaker 01: Number one, there was no debate as to whether that formula versus another one. [00:09:44] Speaker 01: And number two, because the Longly-Rise model by itself does not do what the statute says. [00:09:50] Speaker 01: It does not predict coverage area and population served. [00:09:53] Speaker 01: The only way it does that is with specific data sources, which the commission changed seven of them [00:10:00] Speaker 01: in this ruling. [00:10:01] Speaker 05: Methodology and data points are not the same thing. [00:10:05] Speaker 01: No, but they can be in ordinary language. [00:10:09] Speaker 05: You apply methodology to various data points. [00:10:15] Speaker 05: Are you arguing [00:10:19] Speaker 01: No, I think we have conceded that with respect to station-specific data points to identify what the interference is. [00:10:27] Speaker 05: And now about the population, the census population. [00:10:32] Speaker 05: That's a big encompassing data point. [00:10:36] Speaker 01: Sure, but you know, if you step back to try to figure out what Congress was trying to do here, you could see how you might want to say that... No, I don't like to step back and try to figure out what Congress was trying to do. [00:10:48] Speaker 05: I like to look at the statute, step forward and try to figure out what Congress did. [00:10:53] Speaker 01: Well, then let's go back to where I was before this current line of questions started. [00:10:58] Speaker 01: What the statute actually says is that you have to determine a certain thing as of specific date. [00:11:03] Speaker 01: As of that date, there was only one way to determine. [00:11:05] Speaker 01: No one actually is contesting that. [00:11:08] Speaker 01: And today, every use for which that method was used in 2012, that is to say, [00:11:16] Speaker 01: Everything that existed in the real world for which the OAT-69 unchanged was used by regulation, it is used today. [00:11:23] Speaker 01: So the net net in the real world is that the Commission has changed in this rulemaking, you know, only the option [00:11:31] Speaker 01: methodology that Congress went to treat it like everything else that was being treated in 2012. [00:11:38] Speaker 01: So the Commission, if you file an application today, will use all of the data sources and the 2000 census that it claims here is outdated, just as it did in 2012. [00:11:49] Speaker 01: But it has changed the one thing that Congress wanted to be treated [00:11:53] Speaker 01: just at those things. [00:11:55] Speaker 01: Now, if I could give you sort of a simple example of why this matters. [00:11:59] Speaker 01: Now, and this is actually relevant to why the census point is actually something that's quite important. [00:12:07] Speaker 01: Take if I have a TV station that covers Latham County. [00:12:14] Speaker 01: And so there is no dispute that in 2012 I covered whoever lived in Latham County. [00:12:19] Speaker 01: Now, the Commissioner will say in the repacking, [00:12:24] Speaker 01: We are going to give you the contour of Loudoun County. [00:12:28] Speaker 01: We're going to flood 40% of it with wireless interference. [00:12:31] Speaker 01: So you will have 60% of the actually usable non-interference coverage area you used to have. [00:12:37] Speaker 01: But you're a winner, because the population of London County, more than the rest of the country, doubled between 2000 and 2012. [00:12:45] Speaker 01: And so you actually have an increase in population surge. [00:12:49] Speaker 01: So what this rulemaking does is to take the contour, empty a good part of it for the wireless companies, and then tell me that I have won because in a victory of demography, the population of the country grew over the last 10 years. [00:13:02] Speaker 01: Now, that happened on average over the country, 9.7%. [00:13:07] Speaker 01: And what the Commission is saying, that rather than using the tools that existed and were available to Congress in 2012, it's going to come up with different tools to do something else. [00:13:17] Speaker 09: But why would, I don't know that that example necessarily, I'm not sure which way that cuts, because [00:13:25] Speaker 09: If there in fact was dramatic population change in some service area, why would we think that what Congress wanted to do was to base the calculations on dramatically outdated population data? [00:13:36] Speaker 01: Because the way that the model works, the population [00:13:41] Speaker 01: serve or data is actually a conclusion after you figure out what the non-interference area is. [00:13:47] Speaker 01: So the model actually tells you where the non-interference area is and then the coverage area. [00:13:53] Speaker 01: And then you use whatever census data you want to use what the population serves. [00:13:57] Speaker 01: And so the commission has done that backwards. [00:13:59] Speaker 01: It's going to say, I'm going to give you a service area only where there currently are people. [00:14:05] Speaker 01: And if you want to build a sub [00:14:07] Speaker 01: division in that part of Lyon County or if you want to have your beach house in that part of the water beach then you will have no television and just as the wireless carriers would not accept that it would be no service while you're on the road just because you're not in your house you know the same thing happens to the broadcasters because they do have mobile television where you can get on your ipad over the tv [00:14:32] Speaker 01: airwaves. [00:14:34] Speaker 01: Now if I go back to one point that I think is very important as we get [00:14:39] Speaker 01: misunderstood. [00:14:39] Speaker 01: You know, the Commission has basically read coverage area out of the statute, but I think its main rhetorical point in opposing what we're saying here is that we are not taking into account the logistic challenges of the auction. [00:14:55] Speaker 01: And I think that this is based on a textual misdirection. [00:14:59] Speaker 01: The methodology bears on what the Commission has to do to [00:15:04] Speaker 01: preserve coverage area. [00:15:07] Speaker 01: The methodology is not for what it needs to do to repack. [00:15:11] Speaker 01: So that the game here is on how the commission is going to build the constraint files, how it's going to determine the needs and bounds of what we had in 2012. [00:15:20] Speaker 01: to determine what will be saved in the backend. [00:15:23] Speaker 01: So if you look at the order, there is a paragraph where they explain to you that before any of this comes up, I think it's 1.14, they have to build constraint files to identify what our meets and bounds are, what the coverage is, and what the population is. [00:15:42] Speaker 01: And our dispute is that to do that you have to use OEP 69 as it existed in 2012. [00:15:50] Speaker 01: What you do after that with a different computer program for the repacking and whether you want to do an avacus or a super computer is actually not addressed by this statute. [00:16:01] Speaker 01: This deals only with how you go about identifying what it is that the broadcasters had in 2012 and what is it that is encompassed by your duty to preserve. [00:16:12] Speaker 01: Now the Commission's alternative to this is we have to exercise all reasonable efforts. [00:16:18] Speaker 01: And all reasonable efforts means that we have to take into account the larger objectives of the Act. [00:16:24] Speaker 01: That again is textually misdirected. [00:16:26] Speaker 01: The reasonable efforts are directed to the goal of preservation. [00:16:30] Speaker 01: not to the goal of the acquisition of spectrum. [00:16:34] Speaker 01: And the commission actually gives the game up at paragraph 125, and I want you to listen very carefully to what they say, because it's basically an admission that they will not be complying with the statute. [00:16:46] Speaker 01: It said, efforts that would preserve coverage area and population served, but would [00:16:54] Speaker 01: prevents us from repurposing spectrum would not be reasonable in the larger context of the spectrum map. [00:17:01] Speaker 01: And so in a statute that says that the reasonable efforts have to be directed to the goal of preservation, they are saying that the reasonable efforts, rather than being a textual limit on their discretion, is reasonable efforts to achieve as much spectrum as they can. [00:17:20] Speaker 01: That's not a tenable reading of the statute. [00:17:22] Speaker 01: It's not a logical reading of the reasonable effort clause. [00:17:27] Speaker 01: And it turns what it is by all rights a [00:17:31] Speaker 01: restriction on the commission's discretion, and we can argue whether it is a high bar or a low bar, but it is a restriction of the commission's authority, it turns that into an essential grant of additional authority to come up with spectrum. [00:17:46] Speaker 01: And if you think about, with apologies to Jefferson Tell, if you think about the holistic reading of the statute that the commission endorses, [00:17:58] Speaker 01: It is imperative that one recognizes that the voluntary nature of the auction was essential to what Congress was trying to do here. [00:18:07] Speaker 01: And it is essential to that voluntary nature of the auction that you know before you bid what it is that you will have on the back end, what it is that you're putting on the table. [00:18:18] Speaker 01: And what the commission is doing here is to abate everything in the [00:18:23] Speaker 01: in the methodology as Congress understood it to try to get more spectrum out of the act under the guise of complying with a reasonable effort clause that is intended textually to preserve to the extent possible our rights as they existed in 2012. [00:18:42] Speaker 01: I just want to say one final word on that and just so that it is clear that in our view what the reasonable effort clause means is not that the commission has to do impossible efforts, but it has to undertake efforts [00:18:58] Speaker 01: probably high in argue, to the right goal, which is preservation, not freeing up spectrum. [00:19:04] Speaker 01: If I could just say one word about the APA problem, because I think it's as significant as the commission's failure to read the statute. [00:19:14] Speaker 01: I don't think there's any dispute whatsoever that the notice of rulemaking came, and there was not a hint, word, whisper, wink, anything [00:19:23] Speaker 01: indicating to the regulated community that the seven data sources that are, I think, in paragraph 125 would be radically changed to come up with an updated system, whether you want to call it a methodology or not, and whether you think that there is discretion or not. [00:19:39] Speaker 01: If the commission had a statutory theory which came to full flower in the order, and it's briefed in here, but was not disclosed to the regulated [00:19:47] Speaker 01: community as to how this was going to get done, and he wanted to see input. [00:19:52] Speaker 01: That was the place to do it. [00:19:53] Speaker 01: What it actually did is that a subordinate bureau, OET, then issued a quote-unquote public notice after the initial comment period was closed. [00:20:06] Speaker 01: And then it engaged in an elaborate game of what this court has called hunt the peanut. [00:20:11] Speaker 01: By putting what it was doing in a listserv that was not compliant with any federal register anything that this court has ever approved, and by then turning around in the order and saying, you guessed wrong. [00:20:26] Speaker 01: The switches were supposed to be in a different way, or you picked the wrong software. [00:20:32] Speaker 01: Yada yada. [00:20:34] Speaker 01: But all of that is a failure that is a two level fundamental failure. [00:20:38] Speaker 01: No notice of anything in the actual notice of proposed rulemaking. [00:20:41] Speaker 01: And number two, the radio relay problem. [00:20:47] Speaker 01: of just trying not to disclose what the full basis of the expertise was, that the commission is now trying to rely here to defend this judgment. [00:20:58] Speaker 01: And that, too, is an equally serious one. [00:21:02] Speaker 01: But the first one, under this court's ruling in sprint, is sufficient in itself to set the action aside. [00:21:10] Speaker 09: It seems a little different than SPRINT because at the least here, I take your point that it was not the agency itself that issued the notice, but it was put in the Federal Register and it was advertised as a proposed rule. [00:21:24] Speaker 01: It was published in the Federal Register. [00:21:26] Speaker 01: I think SPRINT faced two distinct problems. [00:21:29] Speaker 01: One of them was that there was no [00:21:33] Speaker 01: publication in the Federal Register. [00:21:36] Speaker 01: And the second one was that there was no proposed rulemaking because the entity doing the proposing could not propose rules. [00:21:46] Speaker 01: And that's identical here. [00:21:47] Speaker 01: This court did not say that you needed both. [00:21:49] Speaker 01: And obviously, if the notice comes in something that is not a notice of proposed rulemaking, then it doesn't comply with the APA. [00:21:58] Speaker 01: The key point is that the agency went for a double whammy in that case. [00:22:02] Speaker 01: but just because they only did one of those things wrong here, it is equally wrong. [00:22:08] Speaker 01: But in any event, even if you could conceive of a scenario in which that sort of thing could work for some agencies, it would still be indefensible to engage in a system in which you update [00:22:23] Speaker 01: You know, the software. [00:22:25] Speaker 01: That's your second point. [00:22:26] Speaker 01: No, yeah. [00:22:27] Speaker 01: And just to deal with what the commission says about that, all of the nuggets in this order are in the footnotes. [00:22:35] Speaker 01: Footnote 474 is one of my favorite ones. [00:22:39] Speaker 01: It says, you know, not to worry. [00:22:41] Speaker 01: We kept a change log that you can access in this website. [00:22:45] Speaker 01: And you can write in for the previous versions for it if you want to exercise in 706. [00:22:52] Speaker 01: APA review. [00:22:53] Speaker 01: Now, since I'm sort of a gullible person, I figure, okay, I'll bite. [00:22:59] Speaker 01: You know, that wasn't available really during the rulemaking, but I'll go see. [00:23:03] Speaker 01: So if you go into the website for the change log, it's like updating your iPhone, where you're looking for the explanation of why the app that you just updated, you need to update again, and the explanation is bug fixes. [00:23:16] Speaker 01: Well, that's what the explanations are in this note. [00:23:19] Speaker 01: It's sort of like, [00:23:21] Speaker 01: improve cash, bug fixes, this problem that used to happen no longer will happen. [00:23:28] Speaker 01: And it is completely uninformative in terms of what it is that you're trying to ascertain, how this new process works. [00:23:35] Speaker 01: So even if you thought it was authorized, it was, again, a hunt the peanut. [00:23:39] Speaker 01: Now, I know that Dr. Henderson has been very generous with my time, and I do want to say something for the bottom. [00:23:44] Speaker 01: I didn't have a question. [00:23:45] Speaker 05: She's a much nicer person than some of us. [00:23:48] Speaker 01: Just until that had not even occurred to me. [00:23:51] Speaker 04: I have a question going back to what you first said, which was, although this is called voluntary, it's far from voluntary. [00:24:00] Speaker 04: And that was a question I had was, what if these broadcasters don't want to get involved in this auction? [00:24:06] Speaker 04: What protection do they have? [00:24:08] Speaker 04: And so the final order does say in paragraph 117, to protect non-participating stations, the commission decided that the repacking feasibility checker, and I [00:24:19] Speaker 04: don't know who that is, but will ensure that every non-participating station can be assigned a television channel in its pre-auction band. [00:24:30] Speaker 04: Now, what do you say to that? [00:24:32] Speaker 01: Well, I think that they will pick a band. [00:24:35] Speaker 01: I think that is literally true, but in the context of the order, meaningless, because as they go on to say in paragraph 166, rather than covering the area where people actually get service, [00:24:50] Speaker 01: They are covering only the contour and not protecting for what really matters to service, which is interference. [00:24:57] Speaker 01: And so, is there terrain features, for example, that impede your getting TV signals in your farmhouse? [00:25:07] Speaker 01: You know, the Commission currently has a filling [00:25:11] Speaker 01: translator that will take the signal and take it to you. [00:25:14] Speaker 01: They're getting rid of that. [00:25:16] Speaker 01: If they're moving to the band in a way that the terrain will affect the signal differently, they're not taking into account that. [00:25:25] Speaker 01: And so, yes, they are [00:25:27] Speaker 01: assigning you a channel that will do something for you. [00:25:30] Speaker 01: It is not our claim here that they're engaged in complete expropriation of what we had in 2012, but it is our claim that in a statute that conjunctively says you have to give the area and the population serve, which really speak to whether you can get service without interference. [00:25:46] Speaker 01: whether the commission really has executed that duty or whether it really has engaged in a confusion of statutory purposes. [00:25:54] Speaker 01: One of the things that the commission does quite effectively here is to always come into the court and say, radio waves, gamma rays, it's all very complicated. [00:26:03] Speaker 01: Don't worry about it. [00:26:04] Speaker 01: Defer it. [00:26:05] Speaker 01: But we're not in the area of, oh my god, this is so complicated that my head hurts. [00:26:11] Speaker 01: This is in the area of, what is the goal? [00:26:13] Speaker 01: It is to preserve. [00:26:15] Speaker 01: What was the methodology at all? [00:26:18] Speaker 05: Just one second. [00:26:20] Speaker 05: It would be part of your claim that the Commission acted unreasonably in doing away with the translators. [00:26:27] Speaker 01: Correct. [00:26:28] Speaker 01: Correct. [00:26:29] Speaker 01: And also with respect to the question of terrain laws. [00:26:32] Speaker 01: But this is why I thought it was worthwhile to start with an example because really what the Commission is doing is saying we'll give you the same contour [00:26:41] Speaker 01: and we will give you some of the area to the extent it's populated, even though the statute says covered area and population conjunctively. [00:26:50] Speaker 01: And then people that you used to reach with translators that we gave you in the digital [00:26:59] Speaker 01: transition. [00:27:00] Speaker 01: For the express purpose of allowing you to continue to reach the people you were reaching, those will be taken away and, you know, we'll think about it later, see if we can do something. [00:27:10] Speaker 09: So they're not part of the same license as I understand it? [00:27:15] Speaker 09: They have a separate license? [00:27:16] Speaker 01: They are separately licensed, but they do have the same FCC Issues Station Identifier and is the same call [00:27:26] Speaker 09: Yeah, I'm not saying there's no association. [00:27:29] Speaker 01: There's an association, but... No, but the reason why it's useful to think about the coverage area is because there are different types of translators. [00:27:41] Speaker 01: Those that you put inside the area to cover the terrain and the contour are the ones that we're talking about. [00:27:48] Speaker 01: If you want to put one outside the area to reach people outside your area, those are [00:27:53] Speaker 01: sometimes allowed, but we're not arguing about those here. [00:27:56] Speaker 01: We're really arguing about those things that the Commission itself recognized in the DTV transition were essential to allow you to reach the population you were serving. [00:28:07] Speaker 09: So let me ask the question this way. [00:28:08] Speaker 09: If the statute speaks in terms of protecting the coverage area and population served of each broadcast television licensee, [00:28:16] Speaker 09: So if you're talking about a particular broadcast television licensee and you're asking what's their coverage area, does that coverage area include whatever coverage is enabled by the fill-in translator? [00:28:27] Speaker 09: Yes. [00:28:28] Speaker 01: By definition, it does that? [00:28:30] Speaker 01: Because, as I said earlier, the way you do this, basically, is you figure out what the interference-free area is, and then you use the census to figure out who lives there. [00:28:43] Speaker 01: And if these are pieces of equipment, as they are, that are essential to allow me to continue reaching the people who live in my suburb area and who we are reaching today, [00:28:54] Speaker 01: There is no non-arbitrary reason for the commission other than what it actually said, which is it would impede freeing up more spectrum. [00:29:03] Speaker 01: Which again, it's a confusion of both. [00:29:06] Speaker 09: Can I ask you a question about that? [00:29:08] Speaker 09: I'm sorry to belabor this point. [00:29:10] Speaker 09: On the question of goals, of course the statute speaks in terms of making reasonable efforts to preserve coverage area and population served. [00:29:17] Speaker 09: That's what the text says. [00:29:20] Speaker 09: I'm sorry, Your Honor. [00:29:21] Speaker 09: Of course the statute speaks in terms of preserving coverage area and population served, or at least making reasonable efforts to that end. [00:29:28] Speaker 09: That's what the statute says. [00:29:29] Speaker 09: But you don't take issue [00:29:32] Speaker 09: All reasonable efforts, yes. [00:29:33] Speaker 09: I didn't mean to leave out all reasonable efforts. [00:29:36] Speaker 09: But you don't take issue with the notion that there's also an overarching objective of making spectrum available. [00:29:42] Speaker 01: Well, I think that the larger point of this statute is to try to make spectrum [00:29:47] Speaker 01: available on a voluntary basis. [00:29:50] Speaker 01: And in order to ensure that this is voluntary, those people who are being asked to bid are being assured that the commission will exercise actual efforts to make sure not to hold them harmless, but to make sure that they have the meat and bones that they had in 2012 and they serve the same population. [00:30:11] Speaker 01: And so the issue that we're talking about here is B2. [00:30:15] Speaker 01: Although there is a larger goal of the statute, this B2 section is a specific restriction in the discretion of the commission on how to accomplish. [00:30:27] Speaker 01: And the restriction speaks to a single goal, which is preservation of population served and collaboratoria. [00:30:35] Speaker 01: And although the commission could take the all reasonable efforts clause, [00:30:41] Speaker 01: to say, I don't need to engage in Herculean efforts. [00:30:45] Speaker 01: I don't need to expect to spend a trillion dollars doing this for very little incremental gain. [00:30:54] Speaker 01: It is not allowed to say, I don't like the goal that Congress gave me to save the broadcasters, and I'm going to substitute it for the one I like better, which is give spectrum to the wireless products. [00:31:05] Speaker 01: And that's the fundamental problem at the core of this case. [00:31:09] Speaker 01: Thank you. [00:31:28] Speaker 02: May it please the court, my name is John Hain, Counselor for Petitioner Sinclair Broadcast Group. [00:31:34] Speaker 02: Sinclair is the largest broadcaster in the United States, owning and operating 162 television stations in the great majority of states in the country. [00:31:43] Speaker 02: With the court's indulgence, I'd like to reserve one minute for rebuttal. [00:31:46] Speaker 04: Do you have a television station in Montana? [00:31:49] Speaker 04: Do you know? [00:31:50] Speaker 02: I believe Sinclair does, Your Honor, but I don't know for certain. [00:31:54] Speaker 04: What is your vision of what's going to happen to that television station? [00:31:59] Speaker 04: Well, let's just take for granted that Montana is remote and unpopulated. [00:32:08] Speaker 02: In remote and unpopulated areas, the FCC still intends to recover and reclaim spectrum. [00:32:14] Speaker 02: It may not need to purchase as many television stations in those areas. [00:32:20] Speaker 02: And certainly, it depends on how close it is to the Canadian border, because that has an impact on the FCC's ability to repack because of constraints across the border. [00:32:31] Speaker 02: We can anticipate that in Montana, the FCC will need to recover fewer television stations than it will in New York or Los Angeles or Detroit, but... So is it possible that in the more remote areas like Montana, the people who have UHF TV stations will continue to receive them? [00:32:57] Speaker 04: Your Honor, I would say that... In other words, you just won't bid. [00:33:01] Speaker 02: Right. [00:33:02] Speaker 02: The more remote the area, the less difficulty the FCC has in reclaiming the spectrum it wants to reclaim so that it can repack. [00:33:13] Speaker 02: Before I begin my argument, I'd like to clarify one point. [00:33:15] Speaker 02: The fill-in translators that Mr. Estrada was speaking to are licensed under the same license as the main television station. [00:33:24] Speaker 02: They are part of the same license. [00:33:32] Speaker 05: That's right, Your Honor. [00:33:35] Speaker 02: Those are not protected under the Act. [00:33:39] Speaker 02: So the Spectrum Act allows the FCC to repack broadcast stations, but it's subject to two very specific limitations on that authority. [00:33:48] Speaker 02: First, it can only repack following a valid reverse incentive auction. [00:33:53] Speaker 02: And second, when it repacks, it must use all reasonable efforts to preserve broadcast service. [00:33:58] Speaker 02: This case is about the FCC's attempt to skip over those two requirements of the Act in order to recover more spectrum than it would otherwise be able to recover, and also to rush the repacking process to the point at which it will knock some television stations off the air altogether for an indeterminate period of time. [00:34:17] Speaker 02: I want to start first with the 39-month hard deadline that the FCC adopted. [00:34:23] Speaker 02: The FCC determined, in spite of the fact that Congress gave the FCC 10 years to conduct the incentive auction, the FCC determined that it wanted to rush the – conduct the auction as quickly as possible and recover the broadcast spectrum as quickly as possible. [00:34:40] Speaker 02: And in doing so, it set a 39-month deadline by which all television stations after the auction must cease operations on their pre-auction ban, regardless of whether they've been able to build a new station, even if that's beyond their control, even if the reason is because the FCC gave [00:34:59] Speaker 02: a permit in the forward auction following the reverse auction that they just can't build out. [00:35:05] Speaker 09: So if we're not in a repack situation, but we're in a situation in which we're just talking about new construction, what's the time frame within which the new construction is required to be made? [00:35:14] Speaker 02: The new construction time frame under the rules is 36 months. [00:35:18] Speaker 02: There has never been a situation before in which potentially 1,000 or more television stations had to be constructed in a 36-month period. [00:35:29] Speaker 02: In fact, the real process is that, and this is in the record and one of the antenna manufacturers said, [00:35:36] Speaker 02: Once we get an order, it can take us a minimum of nine months to build an antenna. [00:35:40] Speaker 02: This is hand labor. [00:35:42] Speaker 02: This is not assembly line work. [00:35:45] Speaker 02: This is very skilled labor, and it's very, very custom equipment. [00:35:50] Speaker 02: And we also have a very contracted industry after the digital transition. [00:35:55] Speaker 02: the supply industry contracted. [00:35:58] Speaker 02: And then two years ago, the FCC imposed a freeze on all broadcast television station applications in order to fix everything for the auction, to stop everything. [00:36:10] Speaker 02: The result of that is these supply industries, many of them have gone out of business, many of the suppliers. [00:36:15] Speaker 02: The others are down to skeletal workforces. [00:36:19] Speaker 02: They've had no business for two years. [00:36:21] Speaker 02: And now the FCC is saying, in spite of all of the industry suppliers that have to [00:36:26] Speaker 02: that have to make this transition happen. [00:36:29] Speaker 02: The FCC has said, we think they'll step up to the plate and make this happen. [00:36:34] Speaker 02: It shoves into a footnote the FCC does, into two footnotes, a long string site of commenters from these supply industries that says there's no way that this can happen in 39 months. [00:36:45] Speaker 02: We submit that this is Sorenson Communications versus FCC all over again and that the FCC's predictive judgment is not entitled to any deference because it's absolutely unsupported anywhere in the record and in fact it's contradicted entirely by the record. [00:37:00] Speaker 02: There's another aspect that's troubling here, and that the FCC is skipping over the two competing licensees requirement in order to reclaim more stations than it could otherwise reclaim. [00:37:11] Speaker 02: That compounds the repacking problem, because it leads to more repacking than the FCC would otherwise be able to accomplish, which compounds the problem of having all the work done within the 39-month period. [00:37:23] Speaker 02: The SEC, again, cannot repack without having a valid incentive auction on the front end. [00:37:31] Speaker 02: So the harm and excess repacking to Sinclair flows directly from the invalid incentive auction. [00:37:38] Speaker 02: I see that my time is up. [00:37:39] Speaker 02: I'd like to ask the court to vacate the SEC's order in the respects that we've requested. [00:37:45] Speaker 07: Thank you. [00:37:54] Speaker 03: May it please the Court? [00:37:55] Speaker 03: Jacob Lewis for the Federal Communications Commission. [00:37:58] Speaker 03: Let's go to the language of 1452b2, if we could. [00:38:03] Speaker 03: Under that section, the Commission is to use methodology described in OET 1469, not everything mentioned in the bulletin. [00:38:12] Speaker 05: What is encompassed within the term methodology in the Commission's view? [00:38:17] Speaker 05: Well, broadly stated... You're not going to tell me what is it, but I want to know what is it. [00:38:21] Speaker 03: Right, I understand, Your Honor. [00:38:22] Speaker 03: Broadly stated, the methodology in OET Bulletin 69 consists of basically three parts. [00:38:26] Speaker 03: First, you identify the signal contour. [00:38:30] Speaker 03: That is the area that a particular specified broadcast, signal of a particular strength covers. [00:38:37] Speaker 03: Then basically, for want of a better word, you chop that up into a grid, into a number of cells. [00:38:43] Speaker 03: And then you use the lonely rice propagation model to evaluate whether or not you actually get a viewable signal in those cells. [00:38:52] Speaker 03: That's a much simplified version of what the commission stated in putting [00:39:00] Speaker 03: order. [00:39:02] Speaker 03: That footnote is written in somewhat of engineer speak as is OET bulletin. [00:39:07] Speaker 05: It might have been nice if the Commission had put more things in the opinion and fewer things in the margin of view. [00:39:15] Speaker 05: Well, the issue here, Your Honor, is- Our colleague, former colleague, Governor McVie, said if God meant to put the law in footnotes, He would put our eyes on the verdict funders. [00:39:24] Speaker 03: Well, I think maybe perhaps with that footnote, putting it in text would just accentuate the eyes glazing over with the engineer's feet. [00:39:33] Speaker 03: So there may have been a reason to put that particular description in the footnote. [00:39:36] Speaker 03: But the issue here is what the methodology is not. [00:39:41] Speaker 03: The issue is what it is. [00:39:44] Speaker 05: The course of the argument may involve what it's not, but the Commission has to tell us. [00:39:50] Speaker 05: They have to justify what they're doing. [00:39:52] Speaker 05: They have to show us they've complied with the statute. [00:39:54] Speaker 05: You can't do it for them. [00:39:56] Speaker 05: I understand that. [00:39:57] Speaker 05: And I'm not sure that I find it a good place that tells me what the Commission thinks methodology set forth. [00:40:03] Speaker 03: Well, I think that description is in detail in footnote 435. [00:40:08] Speaker 03: But in general, as I described, it is those three steps. [00:40:12] Speaker 03: The issue here, look, methodology is a process for analyzing a problem. [00:40:17] Speaker 03: Methodology is not data. [00:40:19] Speaker 03: Data is what methodology acts upon. [00:40:21] Speaker 03: Methodology is not software. [00:40:23] Speaker 03: Software implements a methodology. [00:40:26] Speaker 03: And the argument here that somehow software and data were included in the phrase methodology described in OET 69 just simply doesn't comport with the language. [00:40:35] Speaker 03: If Congress had wanted the Commission to use every word in OET, [00:40:39] Speaker 03: Bulletin 69, then presumably it would have said something far less indirect than methodology described in Bulletin, OET 69. [00:40:48] Speaker 03: The use of the word methodology was a careful choice by Congress, and it recognized that the Commission necessarily needed to make a lot of judgment calls in this incredibly complex auction. [00:41:00] Speaker 05: The same is true- That's a very odd word choice by Congress. [00:41:04] Speaker 05: don't remember a parallel to this. [00:41:07] Speaker 05: Has the Commission, do you know, ever faced anything like this before? [00:41:11] Speaker 03: Well, it is unusual for Congress to pull up a particular bulletin and identify it, but it is also, but in doing so, it made clear that what it was talking about was the methodology described in that bulletin, and the petitioner's argument is, no, we would have to use everything, every last statement in there. [00:41:28] Speaker 05: Outside of what it says in, I think it's written up 434, is there anything [00:41:36] Speaker 05: can prove methodology to me in the context of the study. [00:41:40] Speaker 03: I think most of the order is concerned with the objections to the commission's choice to update the software and the data. [00:41:48] Speaker 03: So that most of the order is concerned with the commission's behavior. [00:41:54] Speaker 03: That's an interesting answer to my question. [00:41:55] Speaker 03: Well, what I was trying to say, if the answer is no, there isn't a fuller description of what the methodology is. [00:42:01] Speaker 03: There is quite a complete description of what the methodology is, not insofar as it is. [00:42:06] Speaker 05: what the Commission does, don't we have to be able to look to their opinion to determine if they've stated their rationale for it? [00:42:14] Speaker 03: Yes, Your Honor. [00:42:15] Speaker 03: I think that, albeit it's in footnote 435, I think that is a more complete and detailed description of what the methodology described in OET 69 is. [00:42:24] Speaker 03: But I do think for purposes of your opinion, you only have to conclude that data and software are not methodology. [00:42:31] Speaker 03: And I think that's a fairly straightforward question. [00:42:33] Speaker 03: There is another part of it. [00:42:35] Speaker 09: That's in the text of Paragraph 134. [00:42:36] Speaker 09: Yes. [00:42:38] Speaker 05: I want to come just a little further to that. [00:42:44] Speaker 05: Part of 435, it follows the two parentheticals. [00:42:49] Speaker 05: It refers to an algorithm for evaluating the availability. [00:42:54] Speaker 05: It was not the very specification that they could take the bulletin and send the methodology there to get to an algorithm [00:43:06] Speaker 03: Well, I think that was just describing, I think that algorithm is, that could have used the word the algorithm. [00:43:12] Speaker 03: There was only one algorithm. [00:43:12] Speaker 05: Algorithm sounds like part of the methodology. [00:43:15] Speaker 05: That is what I'm suggesting. [00:43:16] Speaker 05: So by Congress, by using the unusual mandate, as well as the methodology from that OEP, could be thought to be mandating the algorithm employed by [00:43:31] Speaker 03: Well, I think that algorithm they're referring to is the propagation model, the long-way rise propagation model. [00:43:37] Speaker 03: It does not suggest... That's a good answer. [00:43:41] Speaker 03: Okay, well then I'll stop with that part of the answer. [00:43:44] Speaker 03: The other part of section 1452b2 that I'd like to call the Court's attention to is that it requires the Commission to use all reasonable efforts to preserve a coverage area and population survey. [00:43:58] Speaker 03: Not every conceivable effort. [00:43:59] Speaker 03: And the use of the word reasonable, which is a frequently used term, is a term that Congress uses to give an agency broad discretion. [00:44:06] Speaker 03: The commission's task here was to preserve a coverage area in population, sir, but only to use all reasonable efforts. [00:44:14] Speaker 03: And the use of that language recognized that this is cases not in the spectrum auction is not all about the broadcasters. [00:44:22] Speaker 03: The spectrum auction gave the commission authority to conduct a workable incentive auction to repurpose spectrum from those broadcasters that voluntarily decided to relinquish it to clear that spectrum and repurpose it for more flexible uses. [00:44:39] Speaker 03: The last part of the section 1452b2 that I'd like to call the Court's attention to is the as of February 2012 language. [00:44:49] Speaker 03: What's to be preserved here is coverage area and population served as of that date. [00:44:55] Speaker 03: And the commission's interpretation was as it existed on that date, not as it could have been calculated on that date. [00:45:01] Speaker 03: And at the minimum, that's a reasonable interpretation of what I think is not particularly ambiguous, but even assuming it was ambiguous language. [00:45:09] Speaker 03: As of February 22, 2012, modifies coverage area and population served. [00:45:14] Speaker 03: It doesn't modify the methodology. [00:45:17] Speaker 03: So the fact is, the commission's task is to figure out what the population that served in the coverage area was as of February 22, 2012, as it actually existed. [00:45:28] Speaker 03: And obviously one way to do that is to update your census data from the year 2000 to year 2010. [00:45:34] Speaker 03: It's inconceivable to me [00:45:36] Speaker 03: that Congress would have wanted in a statute that is concerned with the state of the world in February 22, 2012, that it would have compelled the commission to keep the 2000 census data in the methodology. [00:45:51] Speaker 09: So I think petitioners are making two layers of arguments. [00:45:53] Speaker 09: One is that what you just addressed, which is that [00:45:57] Speaker 09: the coverage area and population served is not only what's being modified by February 22, 2012, that the statute either explicitly does or should be read necessarily to say that you have to apply the OET Bulletin 69 as it was in existence on February 22, 2012. [00:46:14] Speaker 09: But then there's another part of the argument, which is that regardless of that, you have to make all reasonable efforts to preserve both coverage area and population served, and what you're doing is one to the exclusion of the other. [00:46:26] Speaker 03: Well, that's an argument outside of the method. [00:46:28] Speaker 03: So if we would turn to that argument, that doesn't really depend on the interpretation of the term methodology. [00:46:35] Speaker 03: So there is an argument that with regard to unpopulated areas, that the commission has, in petitioner's view, violated its obligation to preserve coverage area. [00:46:47] Speaker 03: So it's a little counterintuitive. [00:46:48] Speaker 03: We're talking about unpopulated areas, but the objection is the commission didn't do enough to preserve coverage area. [00:46:54] Speaker 03: What the Commission did to preserve coverage area was to replicate the signal contour of the station on its new channel. [00:47:01] Speaker 03: So the stations that are not relinquishing their spectrum will have to be placed somewhere. [00:47:06] Speaker 03: This is repacking we're talking about. [00:47:09] Speaker 03: And in repacking the Commission made clear that what it would do is take the station's signal contour that it had on its old channel [00:47:16] Speaker 03: And then it would replicate that on a new channel. [00:47:19] Speaker 03: I understand from the engineers that when you move the station from one channel to another, so in this case, say from channel 50 down to channel 35, the signal will travel differently, will propagate differently. [00:47:33] Speaker 03: It will cover a different area. [00:47:35] Speaker 03: That was an important part of the commission's decision to say, look, we won't leave you with where you would be. [00:47:41] Speaker 03: on channel 35 absent any change on your part. [00:47:45] Speaker 03: We're going to bring you back up to the signal contour that you would have had on your old channel. [00:47:49] Speaker 03: The commission's determination was replicating that contour and the area within it, preserved coverage area. [00:47:57] Speaker 03: Now the specific objection broadcasters have, and this is technical, but is when the commission decides to repack, it has another constraint. [00:48:06] Speaker 03: It takes account of interference only with regard to populated areas. [00:48:10] Speaker 03: So essentially, if you imagine these things as [00:48:13] Speaker 03: I know I'm going to get criticism from the engineers after, but it's bubbles or balloons and you're trying to put them, pack them together. [00:48:23] Speaker 03: If you find that in placing a station on a particular channel, [00:48:28] Speaker 03: that there is interference. [00:48:29] Speaker 03: But the interference is only over an unpopulated area. [00:48:33] Speaker 03: The commission will still repack the station in that channel. [00:48:35] Speaker 03: Why? [00:48:36] Speaker 03: Because the only interference is in a place where nobody lives. [00:48:39] Speaker 03: And that is a separate question from preserving the coverage area. [00:48:42] Speaker 03: They preserve the coverage area. [00:48:44] Speaker 09: But how is not the upshot of that, then, that it mores coverage area and population serve? [00:48:48] Speaker 09: I'm sorry? [00:48:49] Speaker 09: The upshot of that seems like it, then, Morse coverage area and population served. [00:48:54] Speaker 03: No, because the Commission's done something already independently, which is to replicate that content. [00:48:59] Speaker 03: So one of the things the Commission said... But to what end? [00:49:01] Speaker 09: I mean, you can have a first... To what end? [00:49:03] Speaker 09: Because you could have a... It sounds like what you're saying is there's a first step that involves drawing a map that covers contiguously the same border that was covered before. [00:49:11] Speaker 09: And then there's a second step, and at that second step, we don't care about the areas within that contiguous border that are unpopulated. [00:49:18] Speaker 03: Well, that's not precisely true. [00:49:19] Speaker 03: So imagine that you have, let's look at this, imagine a circle. [00:49:25] Speaker 03: And there's an unpopulated area over to the left, and there's an unpopulated area over to the right. [00:49:29] Speaker 03: And when you repack it, the unpopulated area over to the right has interference that the commission ignores. [00:49:34] Speaker 03: The unpopulated area over to the left continues to receive the signal because the commission [00:49:41] Speaker 03: preserve the contour. [00:49:42] Speaker 03: So it is not correct to say that unpopulated areas aren't protected. [00:49:46] Speaker 03: They are protected. [00:49:47] Speaker 03: They're not protected in the repacking. [00:49:49] Speaker 03: But that's a different question than whether there's a signal. [00:49:52] Speaker 03: So in replicating the signal, the signal will go over populated areas and unpopulated areas. [00:49:58] Speaker 03: This only is, what does the commission have to do in light of its all reasonable efforts obligation when it's deciding to repack? [00:50:06] Speaker 03: to does it have to protect unpopulated areas if it finds a situation where it can otherwise place a station in there. [00:50:14] Speaker 03: in compliance with all of its other constraints, and it will fit. [00:50:18] Speaker 03: But there's more than the normal interference over an unpopulated area. [00:50:24] Speaker 03: The other commission said, look, that would be an undue constraint on the repacking. [00:50:28] Speaker 03: It would take options out from our toolkit in repacking. [00:50:33] Speaker 03: And it's not reasonable for us to do that here, because these are, again, unpopulated areas. [00:50:39] Speaker 03: So the commission could [00:50:40] Speaker 03: clearly take into account that the area is unpopulated when it's deciding what to do with the repact. [00:50:45] Speaker 03: So that's what, that issue is, I'm sorry. [00:50:49] Speaker 09: Can I ask you a question about a different topic, which is the fill-in translators? [00:50:55] Speaker 09: So I was under the impression that they operate under a separate license. [00:50:59] Speaker 09: Yes. [00:50:59] Speaker 09: But it sounds like that's not the case. [00:51:01] Speaker 03: No, the operator and separate license, I think the idea is because they're fill-in translators, [00:51:05] Speaker 03: and they were associated with a station. [00:51:09] Speaker 03: They're not supposed to be used by some other station. [00:51:11] Speaker 03: They're associated in the file of a main station. [00:51:13] Speaker 03: You can tell which main station is using the fill-in translator, but they're separately licensed. [00:51:18] Speaker 05: Our argument on fill-in translators... So fill-in translators are separately licensed. [00:51:22] Speaker ?: Yes. [00:51:23] Speaker 09: I thought we heard the opposite from that one. [00:51:26] Speaker 03: No, I think what you heard, well, I'll let Mr. Estrada explain his statement. [00:51:32] Speaker 09: I think it was Council for Sinclair. [00:51:34] Speaker 03: They do look alike. [00:51:40] Speaker 03: My understanding is if you want to get the fill-in translator authority, you have to file a form and get a separate certification for that. [00:51:48] Speaker 03: It's then associated in the file with who has it, and it may very well have the same call letters. [00:51:54] Speaker 03: But the problem with fill-in translators, there's a practical problem and there's also a legal problem. [00:51:58] Speaker 03: Let's start with the legal problem. [00:51:59] Speaker 03: The statute defines [00:52:00] Speaker 03: what a broadcast television licensee is. [00:52:03] Speaker 03: And it's – Congress was very careful to say it's a full-power television station or a low-power television station that's been accorded primary… So it does. [00:52:10] Speaker 09: And I get your textual argument on licensee, but it also talks about making all reasonable efforts to protect coverage area. [00:52:16] Speaker 09: And if the coverage area of a broadcast licensee includes the coverage area of a fill-in translator, [00:52:22] Speaker 09: then the fact that the fill-in translator may be operating under a separate license or may not be a broadcast licensee starts not to matter as much because you're still talking about the methods by which you preserve the coverage area of the licensee that we care about. [00:52:34] Speaker 03: Well, I would say that the coverage area of a fill-in translator is the coverage area of the fill-in translator, not the main station. [00:52:40] Speaker 09: So that's the question. [00:52:40] Speaker 09: When you figure the coverage area of the main station, does it include the coverage area that's made possible by the work of the fill-in translator? [00:52:49] Speaker 03: No, because the statute describes, and there's another statute for provision of egotistical court's attention to it, is 1452B5, which talks about low-power television station usage rights and says that nothing in the subsection will be construed to alter the spectrum usage rights of low-power television stations. [00:53:07] Speaker 03: By the way, fill-in translators and translator stations are low-power television stations. [00:53:11] Speaker 03: They have always been secondary insofar as interference is concerned. [00:53:16] Speaker 03: There's no dispute that a filling translator always had to take interference and could not cause interference to another full power station. [00:53:24] Speaker 09: So if I'm just asking the question, what's the coverage area of broadcast license C1? [00:53:31] Speaker 09: You're telling me the answer to that question doesn't depend on the coverage supplied by an associated fill-in translator for broadcast legacy lines. [00:53:41] Speaker 03: Yes. [00:53:42] Speaker 03: And I think that's a natural outcome of the commission's decision, which it made quite clearly that fill-in translators would be protected, that their coverage area wouldn't be preserved. [00:53:58] Speaker 03: First of all, filling translators were to deal with a problem in the digital transition. [00:54:03] Speaker 03: There may be a terrain loss or coverage problems that arise from the incentive auction, but they're different. [00:54:09] Speaker 03: So there's no particular reason to keep filling translators. [00:54:11] Speaker 03: even though the Commission acknowledged that there's a good purpose to have some kind of replacement translator and it instituted a proceeding here after the repacking to decide where the problem might lie and to establish licensing for new digital replacement translators. [00:54:27] Speaker 03: There's no particular reason to keep the old digital replacement translators because there'll be new [00:54:33] Speaker 03: If there are propagation difficulties, they will be newly arisen from the incentive auction. [00:54:37] Speaker 03: So I think that's a practical aspect. [00:54:40] Speaker 03: But our argument rests on the Congress's decision to specify, which it did quite clearly, who's to be preserved, whose stations cover the area of population service to be preserved. [00:54:51] Speaker 03: I see my red light is on, so unless the court has great questions. [00:54:55] Speaker 04: Thank you. [00:54:56] Speaker 04: Mr. Perrella? [00:55:06] Speaker 08: May it please the Court, Dominic Perella, on behalf of CCA and arguing for the consolidated interveners. [00:55:12] Speaker 08: Let me begin with the language of section 1452b. [00:55:16] Speaker 08: The petitioners say in their reply brief at pages 8 and 9, [00:55:21] Speaker 08: The Spectrum Act refers not merely to a methodology, but to the outputs of that methodology, namely, quote, the coverage area and population served of each broadcast licensee, unquote, as they were calculated on February 22, 2012. [00:55:35] Speaker 08: I want to draw the Court's attention to the fact that those last words of that sentence are nowhere in the statute. [00:55:39] Speaker 08: What they've done is take a modifier. [00:55:41] Speaker 08: that is at the beginning of the sentence, which they purport to quote and move it to the end. [00:55:46] Speaker 08: As a matter of fact, if you look at the sentence in question, it's clear, as the commission has said, that the as of February 22, 2012 language modifies population served and coverage area. [00:55:57] Speaker 08: And when you're thinking about how do you preserve population served and coverage area as of February 2012, it makes perfect sense that you do so using [00:56:06] Speaker 08: the latest data that you have available. [00:56:07] Speaker 08: You don't use outdated data, and you don't use inaccurate data. [00:56:10] Speaker 08: And yet, that's the import of petitioners' argument. [00:56:14] Speaker 08: I'd like to briefly mention an argument petitioners raise in their reply. [00:56:17] Speaker 08: They point to several statutes that actually use the term, long-way-rise. [00:56:22] Speaker 08: And they say, look, if Congress wanted the FCC to use long-way-rise and just long-way-rise. [00:56:30] Speaker 09: Before you skip forward, let me just go back for a second and maybe [00:56:34] Speaker 09: I don't know that you're in a position to answer it, but we've heard that if you actually did the work now and you ask, what's the coverage area population served? [00:56:43] Speaker 09: and using OET 69, that 2010 census data would not be used, that it would still be based on 2000 census data. [00:56:51] Speaker 09: It's only when you implement the Spectrum Act and apply this statute at the time of the auctions done, that you would go to 2010 census data. [00:56:58] Speaker 09: Why is that? [00:56:59] Speaker 08: Sure. [00:56:59] Speaker 08: Judge Chunevasan, petitioners say that in their reply brief. [00:57:02] Speaker 08: I guess I would make two points about that. [00:57:05] Speaker 08: The first one is that, of course, it's blackwater law that an agency can act incrementally, right? [00:57:10] Speaker 08: So they've implemented this new system. [00:57:12] Speaker 08: It may well be that the next time someone attempts to set up a coverage area of a new station that they decide to update the methodology with respect to that application as well. [00:57:21] Speaker 08: But I would also point out actually that the citations the petitioners offer for that proposition in their reply brief [00:57:28] Speaker 08: And if you could give me a moment, they cite JA 1312 and 1333. [00:57:33] Speaker 08: Neither of those pages actually stand for the proposition that the FCC is still using the old methodology. [00:57:39] Speaker 08: Page 1312 is an unsighted assertion by NAB to that effect in a comment letter. [00:57:43] Speaker 08: And page 1333 doesn't say a word about the topic. [00:57:46] Speaker 08: And so I think that that's not established in any event. [00:57:49] Speaker 09: So you don't, I mean, I guess, you're not commission counsel, so you don't necessarily know one way or the other. [00:57:54] Speaker 08: But as a practical matter, do we know whether... As a practical matter, I do not know. [00:57:59] Speaker 08: But I think the bottom line answer is that the incremental doctrine, incrementality of action doctrine, really covers the question. [00:58:05] Speaker 08: But coming back to the Long Wee Rice statutes, they say, look, if Congress, this is just what the interveners in FCC are saying, is that OEC 69 is just the Long Wee Rice methodology. [00:58:15] Speaker 08: And if that's what Congress meant, they would have used the words they use in these other statutes. [00:58:18] Speaker 08: But the fact of the matter is the methodology of OET 69 is not just the Longley Rice model. [00:58:24] Speaker 08: As the Commission pointed out, it's first stage you draw the contour using a method that is in fact referenced by CFR code in OET 69. [00:58:33] Speaker 08: Second stage you draw the grid. [00:58:34] Speaker 08: Third stage you apply the Longley Rice model. [00:58:36] Speaker 08: And so Congress could not have simply used the words Longley Rice. [00:58:39] Speaker 08: That would have been a different statute. [00:58:41] Speaker 08: A couple other points with my limited time. [00:58:44] Speaker 08: Number one, petitioners council offered the example of Loudoun County and said, hey, the Loudoun County grew exponentially between 2000 and 2010, so when they say they're protecting population served, they're not really, it's just that the county grew. [00:58:57] Speaker 08: I think that that is demonstrably incorrect, because what the commission is gonna do is take the 2010 census data, plug that into the model and use that to determine the population baseline, and then they're going to replicate that population baseline when they reassign the stations. [00:59:12] Speaker 08: With respect to coverage area and whether that's been read out of the statute, Judge Srinivasan, I just wanted to return to that momentarily. [00:59:19] Speaker 08: Let's go ahead and come at it from a different direction than Commission Council. [00:59:22] Speaker 08: When the Commission is preserving population served, they are preserving areas that are already populated and making sure there's no interference in those areas. [00:59:32] Speaker 08: But if that's all they were doing, they could draw the contour in such a way that it actually excludes those areas so the signal would not even reach them. [00:59:40] Speaker 08: By making sure the signal propagates to the entire circle, to oversimplify a little bit, they are in fact protecting coverage area. [00:59:47] Speaker 08: And so the idea that coverage area has been read out of the statute is not correct. [00:59:51] Speaker 08: Finally, with respect to translators, Commission Council has already explained why the statute is to the contrary. [00:59:58] Speaker 08: I wanted to also mention that the NAB in their papers below actually took the opposite position of the position they're taking now. [01:00:06] Speaker 08: This is a joint appendix 1232 and 33. [01:00:09] Speaker 08: They agreed with the interpretation, the FCC advances. [01:00:12] Speaker 08: They said, quote, Congress did not protect translators in the same manner as full power in Class A stations, unquote. [01:00:19] Speaker 08: and that, quote, as a natural consequence of the auction, as authorized by the Spectrum Act, a significant number of the television translator stations will be forced to go off the air, unquote. [01:00:29] Speaker 08: And last but not least, let me mention just more generally that there are a number of assertions in petitioners' reply brief that are based on facts that the FCC rejected. [01:00:38] Speaker 08: They assert that the FCC can run the auction using the old software. [01:00:43] Speaker 08: The FCC rejected that at Joint Appendix, page 62. [01:00:45] Speaker 08: They rejected the facts specifically that NAB had submitted. [01:00:51] Speaker 08: Petitioners say that FCC forfeited that argument by not raising it. [01:00:54] Speaker 08: They say that in their reply. [01:00:56] Speaker 08: But the case they cite, Verizon v. FCC, is about a situation in which the FCC simply had said nothing about an argument and no intervener had been an issue. [01:01:05] Speaker 08: There was an intervener in the case, but they're not mentioned in that discussion. [01:01:08] Speaker 08: Here, of course, interveners have raised the issue. [01:01:10] Speaker 08: And the fact of the matter is we're talking about a rejected factual assertion that interveners are still relying on. [01:01:15] Speaker 08: I don't think waiver principles apply in the same way in any event. [01:01:19] Speaker 08: I do, Judge. [01:01:20] Speaker 05: You're going in an awful lot of detail for a person whose red light is on on things that you could have said earlier. [01:01:27] Speaker 08: Judge Henderson, may I? [01:01:29] Speaker 04: Why don't you wrap it up? [01:01:31] Speaker 08: I'm sorry? [01:01:32] Speaker 04: Why don't you wrap it up? [01:01:33] Speaker 08: Okay, last comment. [01:01:34] Speaker 08: Let me just say this. [01:01:35] Speaker 08: At risk of drawing a question from Judge Santel, let me say that petitioners have emphasized that one of the purposes of the Spectrum Act is to protect broadcasters and to make the auction voluntary. [01:01:52] Speaker 08: I'm going to end in 10 seconds. [01:01:54] Speaker 08: First of all, broadcasters will know before the auction what they're giving up because the FCC has told OET to publish their contours before the auction. [01:02:03] Speaker 08: And second of all, the overarching purpose of the statute is to repurpose spectrum. [01:02:07] Speaker 08: That's important to the American economy and to wireless competition. [01:02:10] Speaker 08: Thank you. [01:02:14] Speaker 04: Nobody has any time left. [01:02:15] Speaker 04: I know that. [01:02:16] Speaker 04: Mr. Estrada? [01:02:17] Speaker 04: Why don't you take three minutes? [01:02:19] Speaker 01: Thank you, Your Honor. [01:02:21] Speaker 01: Let me just see if I can do this quickly, so I'm not doing it for the right of Judge Santel and not having to compare it to Mr. Haynes. [01:02:29] Speaker 01: The issue that Judge Santel pointed out is what the Commission's view of methodology is. [01:02:34] Speaker 01: The Commission cannot come here and claim deference if it hasn't proffer any estimate of the range of ambiguity in the term and doesn't know what it means, then it's merely going by what it's not. [01:02:43] Speaker 01: On the point of whether it is right on whether it can go by its view on the order and the notion that this all boils down to picking a grid and applying a lonely rise. [01:02:57] Speaker 01: The commission's view of methodology is the same as if I told you I want a roast chicken baked under the Julia Child recipe and the commission would say well that involves applying heat to [01:03:08] Speaker 01: meat, and therefore I'm going to give you fried lamb. [01:03:12] Speaker 01: If you look at the bulletin itself, [01:03:15] Speaker 01: OET, in terms of what the methodology is, it expressly refers to the computer program, and it tells you at page 501 and 502 of the Joint Appendix to go to the media bureau version of it, so that the commission, in claiming in its order all their many versions, this is so confusing, it's actually not reading OET itself, it sends you to the media bureau. [01:03:38] Speaker 01: If you look at the first page of the bulletin and at the commission's order itself, one of the things that it sends you to is a 1982 monograph by Lumley [01:03:51] Speaker 01: herself, if you open the first page of that monograph, she tells you that this Longley-Rise model is basically like Maxwell's equations. [01:04:01] Speaker 01: It's a way of describing most aspects of physical reality. [01:04:05] Speaker 01: And if you take that to be what the commission calls a methodology, it would be pointless to the point of surplusage to identify it as a methodology in the statute. [01:04:16] Speaker 01: On the question of census data, I agree with the point that has been made. [01:04:21] Speaker 01: And I would not ordinarily take the view that it is necessarily part of the methodology in the statute if, before Congress passed the statute, the commission had not, in multiple orders, told Congress that it did consider the census part of the methodology. [01:04:37] Speaker 01: But at the end of the day, the key question is whether Congress was trying to price predictability over absolute [01:04:46] Speaker 01: precision. [01:04:47] Speaker 01: And what's important here at the end of the day, as I said earlier, is the coverage area. [01:04:50] Speaker 01: If you identify what that is, you impute the population, whoever it lives, to that area. [01:04:56] Speaker 01: And what the Commission has done is try to cut down on the coverage area. [01:05:00] Speaker 01: One final point on what Council just said on the rejected facts. [01:05:05] Speaker 01: These are all of the facts that the Commission came up with on theories of the statute and of [01:05:10] Speaker 01: of the reality that it never noticed. [01:05:13] Speaker 01: And so the commission can come into this court and say, I found the opposite, when it never put the subject on the table for discussion. [01:05:21] Speaker 01: Thank you so much. [01:05:21] Speaker 04: All right. [01:05:22] Speaker 04: Mr. Haynes, why don't you take a couple minutes. [01:05:30] Speaker 02: Thank you, Your Honor. [01:05:31] Speaker 02: Judge Henderson, I'd like to return to the question that you asked, because I'm not sure I really answered it the first time around. [01:05:37] Speaker 02: Your question, I believe, was what happens to a station in Montana if the FCC doesn't need spectrum there. [01:05:43] Speaker 02: The answer is stations all over the country, regardless of whether the FCC needs to actually have volunteers participate in the auction in that area. [01:05:52] Speaker 02: are subject to repacking. [01:05:54] Speaker 02: So the FCC is going to start at channel 51 and go down to channel 37 or perhaps down to channel 26. [01:06:01] Speaker 04: But they'll still be in this pre-auction band, according to the final order. [01:06:07] Speaker 02: Well, what they mean by pre-auction band is UHF to UHF. [01:06:11] Speaker 02: So the idea is that if you're in channel 48, you're going to be repacked whether the FCC really needs volunteers in that area or not. [01:06:20] Speaker 02: And that's our point about the two competing bidders. [01:06:22] Speaker 02: To the extent the FCC goes into these single bidder markets and buys more spectrum, it increases the clearing target. [01:06:29] Speaker 02: So it makes the auction much bigger than it would be if it complied with the strictures of the act. [01:06:35] Speaker 02: And the FCC says at paragraph 415, that's expressly why it's ignoring the two competing bidder requirement, because it wants to reclaim more spectrum. [01:06:44] Speaker 02: The impact of that is to force more stations to be repacked, even where the FCC does not need spectrum. [01:06:50] Speaker 02: That places more disruption and more cost on Sinclair and other broadcasters, which is the basis of our complaint. [01:06:58] Speaker 04: All right. [01:06:59] Speaker 04: Thank you. [01:06:59] Speaker 02: Thank you, Your Honor.