[00:00:02] Speaker 04:
Case number 14-1238, Henry PMC and TD LLC Petitioner.

[00:00:08] Speaker 04:
Mr. Evans for the petitioner, Ms.

[00:00:10] Speaker 04:
Sitrin for the respondent.

[00:00:15] Speaker 02:
May it please the Court, the last time we all got together was two and a half years ago.

[00:00:20] Speaker 02:
I remember.

[00:00:20] Speaker 02:
When I was here complaining that the FCC was obstinately refusing to implement the mandate of Section 331 of the Act.

[00:00:28] Speaker 02:
And at that time, we expressed our concern that if the Court agreed with us and compelled the FCC to obey the mandate of the Act, that the FCC was so institutionally opposed to obeying that particular section of the Act, they would attempt, using all their power, to undermine the Act and undercut it.

[00:00:47] Speaker 03:
But do you think anything in our previous decision mandates the result that you want in this case?

[00:00:54] Speaker 03:
It's not like this is a failure to follow the mandate that we issued in December 2012, right?

[00:01:00] Speaker 02:
I think it is a failure.

[00:01:01] Speaker 03:
Really, which words in the previous decision do you think they're not obeying?

[00:01:07] Speaker 02:
They were directed, Section 331 requires the SEC to reallocate our channel from Nevada, in this case to New Jersey.

[00:01:16] Speaker 03:
But we didn't say what channel it had to be on, right?

[00:01:19] Speaker 03:
There's nothing in that opinion that said,

[00:01:23] Speaker 03:
I'm going to use virtual and real channels because those are the only things I understand here.

[00:01:26] Speaker 03:
But nothing in that said one or the other, right?

[00:01:31] Speaker 02:
No, it said the channel that we had.

[00:01:34] Speaker 02:
The channel that we had was to be reallocated.

[00:01:36] Speaker 03:
No, that's not right.

[00:01:37] Speaker 03:
That's not what we said.

[00:01:39] Speaker 03:
It says,

[00:01:41] Speaker 03:
The first sentence directs the FCC to allocate VHF channels to each state where technically feasible.

[00:01:47] Speaker 03:
The second sentence directs the Commission to grant any proposal of technically feasible reallocation, interpreted this way.

[00:01:54] Speaker 03:
This is to ensure the states will have a VHF station.

[00:01:58] Speaker 03:
This is the best interpretation.

[00:02:01] Speaker 03:
Given this, we remand to the commission with instructions to approve the reallocations.

[00:02:07] Speaker 03:
But the reallocation didn't say what channel, did it?

[00:02:10] Speaker 02:
Well, it could only have been referring to the reallocation of the only channel that we had.

[00:02:14] Speaker 01:
I want to say reallocated it to a different VHF, so something else between 2 and 13.

[00:02:21] Speaker 02:
I don't think they could have done that because what the Act requires is the reallocation of the channel that was in another state to the state that had no VHF.

[00:02:28] Speaker 02:
Which section of the statute has that requirement that it be the same channel?

[00:02:33] Speaker 02:
It doesn't expressly say that, but it says the channel that you have has to be reallocated to the state that doesn't have the VHF channel.

[00:02:41] Speaker 01:
Can you explain for me, I need to understand kind of the basics of what's going on in terms of

[00:02:47] Speaker 01:
is to talk about over the air and cable, I guess the two issues here.

[00:02:52] Speaker 01:
So for over the air, if you're on 3.10 and the Hartford station or the Philadelphia station's on 3.1 through 3.9, what does that mean for the consumer who has over the air?

[00:03:08] Speaker 01:
And what does that mean, if anything, I think I know for the cable, but explain what's going on.

[00:03:13] Speaker 02:
What happens?

[00:03:14] Speaker 02:
Well, it's interesting, because the... Is there any over-the-air anymore, anyway?

[00:03:18] Speaker 01:
There's digital, yeah.

[00:03:19] Speaker 01:
You have a digital converter, right?

[00:03:21] Speaker 01:
The over-the-air people can still get over-the-air with digital converters.

[00:03:25] Speaker 01:
And there are a large number of people, mostly poor, who don't have cable or satellite, right, and still get over-the-air.

[00:03:31] Speaker 02:
That's right.

[00:03:31] Speaker 02:
And the cable carriage in these particular markets, particularly Connecticut and New York and New Jersey,

[00:03:38] Speaker 02:
uh... is especially intense because over eighty percent of the market has cable uh... almost everybody uh... eighty percent of the people have cable tv there is still over the year service though and that's pretty much what we've been relegated to because the FCC has relieved the major cable operators but just on the mechanics of this and maybe this will not be relevant to the legal but just to understand this on the over the air if you're three point ten

[00:04:06] Speaker 01:
station is 3.1 through 3.9, what happens when you turn on your over-the-air TV?

[00:04:13] Speaker 02:
What happens is, first of all, you'd have to, you may remember when the DTV transition occurred, everybody had to have their TV set rescan the available over-the-air channels.

[00:04:24] Speaker 02:
That's what happens whenever a new channel comes into a market.

[00:04:27] Speaker 02:
Your TV set has to identify it as a signal that's coming in.

[00:04:31] Speaker 02:
And in our case, it would identify us as channel 3.10.

[00:04:34] Speaker 02:
It would also identify channel 3.1, which is the Connecticut station.

[00:04:41] Speaker 02:
And you actually saw a screenshot.

[00:04:43] Speaker 01:
And so you would see both come up when you were trying to get channel 3?

[00:04:46] Speaker 02:
No.

[00:04:47] Speaker 02:
What happens?

[00:04:47] Speaker 02:
And as I say, there was a screenshot that the intervener supplied of what the viewer sees when this comes on your screen.

[00:04:55] Speaker 02:
What it shows is 3.10.

[00:04:59] Speaker 02:
It has the call sign of the stations that is 3.10, and typically it will have the network affiliation.

[00:05:05] Speaker 02:
So the consumer sees two different things.

[00:05:07] Speaker 02:
He or she can select 3.1 or 3.10.

[00:05:11] Speaker 02:
And that's why, even though the intervener said there's going to be massive confusion out there, there hasn't been a single instance of a single consumer saying, I was confused or I didn't know what channel I was in.

[00:05:20] Speaker 01:
Because the consumer has to make another, just so I understand this, so does both pop up on the screen?

[00:05:25] Speaker 02:
No.

[00:05:25] Speaker 02:
Once your set scans and sees that there are two different 3s, 3.1 and 3.10,

[00:05:32] Speaker 02:
That's retained in your TV set, and then the consumer just clicks on 3.1 or 3.10.

[00:05:36] Speaker 02:
They don't see both.

[00:05:39] Speaker 02:
It's recognized as two completely different channels.

[00:05:42] Speaker 01:
But both come up without interference to the other.

[00:05:45] Speaker 02:
Totally without interference.

[00:05:47] Speaker 02:
And that's one of the bizarre things here.

[00:05:49] Speaker 01:
So for over the air, just so I understand this, and maybe these questions are better for the FCC, but for over the air, the fact that two channels

[00:06:00] Speaker 01:
have Channel 3 doesn't cause any problem for the consumer.

[00:06:04] Speaker 02:
It causes no problem whatsoever.

[00:06:05] Speaker 01:
Although they may dispute that, but they'll explain why there's a problem for the consumer.

[00:06:09] Speaker 02:
I don't think they are disputing that, because there hasn't been a single complaint from anybody saying that they were confused.

[00:06:15] Speaker 02:
And in fact, the Channel 4, which the FCC assigned to New Jersey when they were trying to backpedal and try to fill in Section 331 two years ago, that station operates on Channel 4.1.

[00:06:28] Speaker 02:
with as much of an overlap over a piece of Channel 4 in New York as we've got with Channel 3, and nobody's complaining about that.

[00:06:35] Speaker 01:
Okay, then on cable, if you're on 33 rather than 3, you're not getting must-carry rates, correct?

[00:06:45] Speaker 02:
Well, no.

[00:06:46] Speaker 02:
The issue there is the Cable Act requires you to be carried on your over-the-air channel, which would be Channel 3.

[00:06:54] Speaker 02:
The FCC has taken the position that your over-the-air channel now is not your over-the-air channel, but it's your PSIP channel.

[00:07:01] Speaker 01:
Right.

[00:07:02] Speaker 01:
And that's why, even though we've... But that's why, I mean, if they move you to 33, you're not going to, correct me if I'm wrong, your complaint is that you're going to lose must carry?

[00:07:13] Speaker 02:
We would still have must-carry rights, but our must-carry rights would be on channel 33.

[00:07:16] Speaker 01:
Right, and you want them to be must-carried on 3.

[00:07:19] Speaker 02:
And the problem with 33, I'll just tell you, is you're... Right, no one watches 33, right?

[00:07:24] Speaker 02:
Right, exactly.

[00:07:25] Speaker 02:
And that's been confirmed by our own experience when we've been operating on channel 3.

[00:07:29] Speaker 02:
People just don't click up to 33.

[00:07:31] Speaker 02:
They click around where all the big guys are.

[00:07:34] Speaker 04:
And what's the...

[00:07:36] Speaker 04:
It's the use of Channel 3 on cable in the media market that's involved here currently.

[00:07:46] Speaker 02:
In the media market there are some cable systems that have nothing on Channel 3.

[00:07:50] Speaker 02:
My wife's family has a house in New Jersey where there's nothing on 3.

[00:07:54] Speaker 02:
I think they're just waiting for us to go on the air.

[00:07:57] Speaker 02:
in some of the cable systems in New York.

[00:07:59] Speaker 02:
I hope you have more than just your wife's family.

[00:08:02] Speaker 02:
I didn't see that in the appendix.

[00:08:07] Speaker 02:
One of the cable systems in New York has on channel 3 Ion TV, who's one of the interviewers here.

[00:08:13] Speaker 02:
That station

[00:08:16] Speaker 02:
Neither operates on Channel 3 over the air, nor has Channel 3 as its PCIP.

[00:08:20] Speaker 04:
The only reason it's up... But relief for you here, would foreordain the outcome once you're ready to enjoy must-carry riots?

[00:08:36] Speaker 02:
Yes.

[00:08:36] Speaker 02:
Yes.

[00:08:37] Speaker 02:
Because we would be... I mean, the idea is we want the Court to say that we're entitled to

[00:08:43] Speaker 02:
Channel 3 with all the rights and privileges that the statute gives to somebody who operates on Channel 3, and that includes on-air cable carriage and over-the-air reception by viewers on Channel 3.

[00:08:56] Speaker 04:
And you believe that NXB resolves that question?

[00:09:02] Speaker 02:
NXB resolves the piece of question to the extent that we have to get into that because

[00:09:08] Speaker 02:
The FCC is saying, well, you're over the air channel.

[00:09:11] Speaker 02:
It isn't you're over the air channel.

[00:09:12] Speaker 02:
It's your PSIP channel.

[00:09:13] Speaker 02:
So that's why we've got to look at the PSIP channel.

[00:09:15] Speaker 02:
And it's only two, NXP is only two pages long.

[00:09:18] Speaker 02:
You can look at it yourself.

[00:09:20] Speaker 04:
And it's, it's, I have to say it's, you're, you're here on Van Davis claiming your rights are perfectly clear.

[00:09:27] Speaker 04:
NXP is not perfectly clear to me.

[00:09:30] Speaker 02:
Well, that may be because there's some, you know, there's some language in there, ATSC, NTSC, which I think might be difficult for somebody to

[00:09:38] Speaker 02:
to understand without knowing the background.

[00:09:42] Speaker 02:
But the important thing to know about Annex B is two things.

[00:09:45] Speaker 02:
First of all, there's no deference due to the FCC with respect to Annex B, because the FCC left that whole development of the piece of protocols to an independent expert body, not the FCC, not governmental.

[00:10:00] Speaker 02:
You can see that no deference is due to the FCC.

[00:10:03] Speaker 03:
But even if there's no deference, Judge Williams' point is it has to be clear and indisputable, not just you're reading more likely than not better than the other sides, right?

[00:10:15] Speaker 03:
You agree with that, right?

[00:10:16] Speaker 03:
This mandamus requires clear and indisputable rights, right?

[00:10:22] Speaker 03:
Yes.

[00:10:23] Speaker 03:
And is your best argument NXB, or do you have some other argument, a better argument, or is that your best?

[00:10:30] Speaker 02:
There's really three arguments.

[00:10:33] Speaker 02:
There's session 331.

[00:10:35] Speaker 03:
All right, so 331 says it should be the policy to allocate channels for very high frequency commercial television in a manner which ensures that not less than one such channel shall be allocated to each state.

[00:10:48] Speaker 03:
That's right?

[00:10:49] Speaker 03:
Right.

[00:10:50] Speaker 03:
Okay, how does that say?

[00:10:52] Speaker 02:
Well, it's really the second part that we're looking at, where the commission is required to reallocate a license of somebody who says, I'm willing to move and change my license to a state.

[00:11:03] Speaker 02:
Change my channel, not my license.

[00:11:04] Speaker 02:
I'm willing to change my channel to a state that doesn't have a DHS license.

[00:11:07] Speaker 03:
Well, it doesn't say channel in the statute.

[00:11:10] Speaker 03:
It says, which sentence are you relying on?

[00:11:12] Speaker 03:
The next sentence?

[00:11:13] Speaker 03:
Uh, yeah, I don't have it in front of me, but I'm pretty certain it says so.

[00:11:16] Speaker 03:
Such channels.

[00:11:17] Speaker 03:
Which, uh, will agree to the reallocation of its channel to a community within a state in which there is allocated no, the commission shall order such reallocation and issue a license to such licensee for that purpose.

[00:11:30] Speaker 03:
Right.

[00:11:31] Speaker 02:
And that's what I'm saying.

[00:11:31] Speaker 03:
So we know whether it's the real channel or the virtual channel.

[00:11:36] Speaker 03:
The statute doesn't say one way.

[00:11:37] Speaker 03:
The statute I take was probably written before, right?

[00:11:40] Speaker 02:
Before there were virtual channels.

[00:11:43] Speaker 03:
Yes, it was before there were virtual channels.

[00:11:45] Speaker 03:
So we don't know what channel.

[00:11:50] Speaker 03:
It may be that your win in the end may well be that you win in the end, but the question is whether it's clear and indisputable when it uses the word channel without telling us which channel, and for very good reason, because there was only one kind of channel at the time.

[00:12:06] Speaker 01:
Well, but just play that out.

[00:12:09] Speaker 01:
Suppose they say the FCC that you're still getting very high frequency.

[00:12:15] Speaker 01:
I think this is part of their argument.

[00:12:16] Speaker 01:
You're still getting very high frequency even if assigned virtual 33, if I have my terminology correct.

[00:12:22] Speaker 01:
That's right.

[00:12:23] Speaker 01:
So they're still complying with the statute.

[00:12:25] Speaker 01:
What's wrong with their theory?

[00:12:28] Speaker 02:
Well, what's wrong with it is what they're doing is they've

[00:12:33] Speaker 02:
taking your order, which was to change our channel, and they said, OK, buddy, we're going to let you operate on channel three, on that frequency that's channel three, but we're not going to give you all the rights that are associated.

[00:12:43] Speaker 01:
Well, that's a different, just tell me, when they say, and this is a very technical argument I understand them to be making, that you're still getting, the statute says, allocate channels for very high frequency commercial television broadcasting, and even when they give you

[00:13:01] Speaker 01:
virtual channel 33 or major channel 33, you're still getting very high frequency even though it comes over to the consumer as the equivalent of what used to be UHF.

[00:13:15] Speaker 02:
But wouldn't you say that's defeating the point of the statute?

[00:13:18] Speaker 02:
I might.

[00:13:20] Speaker 01:
I would because the reason... But the question is, as a literal matter,

[00:13:25] Speaker 02:
As a literal matter, yes, they're allowing us to transmit on the frequencies that constitute channel 3 over the air.

[00:13:32] Speaker 02:
But what they're doing is they're taking away all the things that Congress intended for New Jersey to get by signing us a VHF channel.

[00:13:40] Speaker 02:
They're making us look like a VHF, not like a UHF channel to any consumer who picks us up over the air, and they're not allowing us to be on our over-the-air channel on cable.

[00:13:49] Speaker 02:
We're nobody.

[00:13:51] Speaker 02:
And there is a third argument, Judge Garland, which I want to point out.

[00:13:54] Speaker 02:
And my ears pricked up in the previous argument when you said, isn't there an easy solution to the case that was right before us?

[00:14:01] Speaker 02:
There is an easy solution to this one, too, if you didn't want to get into all the mechanics of PSIPS.

[00:14:07] Speaker 02:
Our channel, the channel we've always operated on since year 2002, is channel three.

[00:14:12] Speaker 02:
That's our over-the-air channel.

[00:14:14] Speaker 02:
Since the concept of PSIPS arose, virtual channel 3.1 has always been our virtual channel.

[00:14:20] Speaker 02:
In 2012, Congress enacted the Middle Class Tax Relief and Job Creation Act, which includes a provision that forbids the Commission from involuntarily changing a broadcast... This is 1452G?

[00:14:35] Speaker 02:
1452G1A.

[00:14:38] Speaker 02:
And it prevents the Commission from changing either the spectrum usage rights associated with your station,

[00:14:45] Speaker 02:
or reassigning you to a different channel.

[00:14:47] Speaker 03:
Those are the two things that... Isn't their argument, isn't the argument the same as that you went just back and forth with Judge Kavanaugh, that you still, they're not changing you from the VHF channel.

[00:14:58] Speaker 03:
You still have the same VHF channel.

[00:14:59] Speaker 02:
Well, that's the interesting thing, because the FCC media bureau, I should say, the FCC media bureau and the interveners have consistently taken the position that now in the digital age,

[00:15:09] Speaker 02:
Your channel is not your over-the-air channel, it's your virtual channel that's assigned through the PSIP process.

[00:15:16] Speaker 02:
And that's important because the FCC is relying on that as the basis for denying us carriage on our over-the-air channel on cable.

[00:15:24] Speaker 02:
If we were entitled to just our over-the-air channel, there'd be no question that we should be on channel three right now on all the cable systems.

[00:15:31] Speaker 02:
The FCC is saying, no, your channel for cable purposes and other purposes is defined by your PSIF.

[00:15:38] Speaker 02:
And we're going to think about that.

[00:15:39] Speaker 02:
And until we reach a decision on that, you're not allowed to be or you don't have to be carried on the cable systems.

[00:15:47] Speaker 02:
So what that tells you is the FCC itself is taking the position that a channel is not your over-the-air channel, it's your virtual channel.

[00:15:55] Speaker 02:
And if that's what they really think, and if that's what the interveners really think, then what the FCC is trying to do is just flatly illegal.

[00:16:01] Speaker 02:
It's flatly contrary to what section 1452.

[00:16:04] Speaker 01:
What language precisely in 1452?

[00:16:07] Speaker 02:
It's 1452, G1.

[00:16:14] Speaker 02:
And it says, during the period described in paragraph two, the commission may not, and the period described is basically the period prior to the incentive auctions, or if that never happens, up to 2022.

[00:16:25] Speaker 02:
During that period, the commission may not involuntarily modify the spectrum usage rights of a broadcast television licensee or reassign such a license to another television channel.

[00:16:37] Speaker 03:
Well, it says reassign from a very high frequency television channel to an ultra-high frequency television channel, right?

[00:16:45] Speaker 02:
Yeah, that's down in section B, and there's an argument that could be made that that section also applies.

[00:16:51] Speaker 02:
Because by what they're doing, they actually are somewhat restricting the availability of UHF stations in the incentive auction, which is what this is all about.

[00:16:59] Speaker 02:
But I think the language in G1A is the one that most directly applies to this situation.

[00:17:05] Speaker 02:
If they think our channel is the piece of channel, what they're doing is in direct comprehension of that.

[00:17:17] Speaker 03:
Other questions?

[00:17:18] Speaker 03:
No?

[00:17:19] Speaker 03:
Okay.

[00:17:19] Speaker 03:
We'll hear from the FCC.

[00:17:31] Speaker 00:
Good morning, and may it please the Court.

[00:17:32] Speaker 00:
My name is Sarah Citrin.

[00:17:33] Speaker 00:
I'm here for the FCC.

[00:17:35] Speaker 00:
Let me begin by clarifying a couple of things.

[00:17:39] Speaker 00:
First, Judge Kavanaugh, I think you said we have two issues here, over-the-air and cable carriage.

[00:17:45] Speaker 00:
It's the FCC's position that cable carriage considerations are not part of this case?

[00:17:50] Speaker 01:
I know, I was just trying to understand.

[00:17:52] Speaker 00:
Okay.

[00:17:53] Speaker 01:
I get that.

[00:17:55] Speaker 00:
If we're clear on that, I'll move on.

[00:17:57] Speaker 01:
Well, maybe you should keep going just in case.

[00:18:00] Speaker 00:
Well, let me just say that there is a cable deferral decision in place as of July.

[00:18:05] Speaker 01:
Right, which is not before us.

[00:18:07] Speaker 01:
In other words, they're not going to get must-carry rights even if they prevail here.

[00:18:11] Speaker 00:
That's right.

[00:18:11] Speaker 00:
What's at issue here is a Bureau-level decision that is an interim decision of what channel should be used while the agency considers the merits of the underlying dispute.

[00:18:22] Speaker 04:
Is it correct that there is no intelligible interference with over-the-air usage of the channel now?

[00:18:34] Speaker 00:
Our position is not that if PMCM Station uses 310 that there would be interference as a technical matter, sort of receiver interference in receiving both channel 3.1 and 310, but the harm that was before the Bureau

[00:18:51] Speaker 00:
concerned potential dilution of the brand identification of incumbent stations of long standing that for 50 years, 70 years had identified themselves to viewers as Channel 3 and that since the start.

[00:19:05] Speaker 04:
Is Evan's assertion correct that what comes up on the, what will come up on the screen of the old air viewers

[00:19:14] Speaker 04:
would be, when they try to go to channel 3, would be 3 and 3.10, I guess.

[00:19:22] Speaker 04:
It should be the case if a receiver is working properly that you can scroll through from 3.1 to, I believe... So the brand name confusion is that in addition to channel 3, which they've known and loved for years, they now see as another option.

[00:19:43] Speaker 00:
Well, you could understand it as having to, in addition to, previously there would have been Channel 3, and now there's Channel 3-1 and Channel 3-10 that could cause some confusion.

[00:19:55] Speaker 01:
People can figure that out?

[00:19:57] Speaker 01:
I mean, that's giving consumers in New Jersey an extra channel is going to cause them to freak out with such confusion that they can't remember which Channel 3 they're watching.

[00:20:10] Speaker 01:
It just strikes me as

[00:20:11] Speaker 00:
Well, I think in answer to that, Judge Kavanaugh, it helps to understand that what PMCM is asking the agency to do here would be a novel interpretation of the channel-tuning protocol.

[00:20:21] Speaker 04:
It has always been... We're just trying to explore the effect on viewers.

[00:20:24] Speaker 00:
Right.

[00:20:25] Speaker 01:
I understand, Your Honor, and, you know, I don't... That is the rationale, though, that they would get confused from having an extra channel three.

[00:20:33] Speaker 01:
There's no... It's an extra channel they'll be getting.

[00:20:36] Speaker 00:
It's an extra channel they would be getting, and because... And they're gonna be confused.

[00:20:41] Speaker 00:
Because historically, a major channel number has not been partitioned in this way, what viewers would expect to find is, for example, on 3-1, a station might show its high-definition programming, and then on 3-2, perhaps standard definition feed or news programming, but affiliated and co-branded with the same station, and that, I think that kind of

[00:21:05] Speaker 00:
relationship among the partitions.

[00:21:08] Speaker 01:
That seems like such a thin read, and I know you're, the 331, we went through this last time, but the whole purpose of this was to get over-the-air viewers in New Jersey.

[00:21:19] Speaker 01:
given the Senator who's behind this, to have the option of a New Jersey VHF station.

[00:21:26] Speaker 01:
And the question we parsed through last time was feasibility.

[00:21:30] Speaker 01:
There's not any feasibility issue here.

[00:21:32] Speaker 01:
There's no consumer interference issue.

[00:21:35] Speaker 01:
That's all been technologically solved.

[00:21:37] Speaker 01:
And so the whole purpose, and maybe you'll have a literal response to this, which I understand, but the whole purpose of the statute is easily accommodated by allowing them to have 3.10, it seems to me.

[00:21:48] Speaker 00:
I think the purpose of the statute, Your Honor, was to give what was a better quality signal in the analog era when the statute was adopted to New Jersey.

[00:21:59] Speaker 00:
As the panel was pointing out,

[00:22:02] Speaker 00:
The FCC has done that here.

[00:22:04] Speaker 00:
We have reallocated radio frequency channel three to PMCM.

[00:22:07] Speaker 00:
That's the radio frequency channel they were using.

[00:22:10] Speaker 00:
And I think in the court's 2012 decision, the discussion of the if technically feasible language from the statute actually supports that what was at issue was the frequency.

[00:22:21] Speaker 00:
The court interpreted that language to be concerned with signal interference, which is a problem with

[00:22:30] Speaker 00:
It's a matter of frequency, the radio frequency channel 3.

[00:22:33] Speaker 01:
That's not a problem anymore though, right?

[00:22:37] Speaker 00:
There's no signal interference, that's right, when PMCM uses radio frequency channel 3, but I think the statute simply doesn't speak to and couldn't have given that

[00:22:48] Speaker 01:
Well, lots of the Fourth Amendment didn't talk about cell phones either, but we apply language that's written, if it's written capaciously enough, to modern circumstances, and it seems like this is not as divorced from the text as you're making it sound.

[00:23:04] Speaker 03:
Do we normally apply a clear and indisputable standard?

[00:23:07] Speaker 00:
That's right, Your Honor.

[00:23:08] Speaker 00:
We are here on a petition for mandamus, and I think at the very least,

[00:23:13] Speaker 04:
Just to get to go back on interference, assuming that some theoretical TV watcher could be confused, the FCC has no evidence that any actual watcher has been confused.

[00:23:28] Speaker 04:
Is that correct?

[00:23:30] Speaker 00:
That's correct, Your Honor.

[00:23:32] Speaker 04:
I think, though... The confusion is imputed.

[00:23:35] Speaker 00:
Well, it was a risk of confusion.

[00:23:37] Speaker 00:
I think the Court should be thinking of the potential harms here in the context of, well, at the time that the Bureau was asked to reach this interim virtual channel assignment.

[00:23:48] Speaker 00:
And what the agency had was two parties who were waving their hands and claiming harm on both sides.

[00:23:55] Speaker 00:
And the FCC made an interim assignment that I think prudently avoided breaking new ground while the FCC considers the merits.

[00:24:02] Speaker 04:
The decisive proposition is simply holding the status quo.

[00:24:08] Speaker 04:
It's not really based on harm.

[00:24:12] Speaker 00:
I think that's fair, Your Honor.

[00:24:15] Speaker 00:
And it held the status quo both in terms of how the FCC had

[00:24:18] Speaker 00:
in every previous case applied this protocol.

[00:24:21] Speaker 00:
The FCC has never sanctioned major channel sharing of the kind PMCM is asking here, and it also preserved the viewing landscape and the brand identification of these.

[00:24:32] Speaker 03:
Is the proceeding that's going on going to address the question of confusion?

[00:24:38] Speaker 00:
I would expect the merits proceeding to address all of the considerations that the parties have put before the agency, including

[00:24:47] Speaker 00:
including the harms that both assert from this kind of channel sharing or harm or lack thereof.

[00:24:55] Speaker 01:
What's interim mean?

[00:24:58] Speaker 01:
Do you have a date by which the FCC will render a decision?

[00:25:02] Speaker 00:
I can say your honor that we are actively

[00:25:06] Speaker 00:
working on the merits proceeding.

[00:25:09] Speaker 00:
That's not helpful.

[00:25:12] Speaker 00:
I'm not in a position to give you an exact prediction, but I can say, you know, of course there are other proceedings before the agency as well, but we are actively working on it and I have no reason to expect that there should be any lengthy delay.

[00:25:28] Speaker 01:
What does lengthy mean?

[00:25:31] Speaker 01:
Don't make promises you can't keep.

[00:25:33] Speaker 01:
So if you're going to say there's going to be no lengthy delay, I'm going to hold you to that.

[00:25:36] Speaker 01:
And I'll define lengthy.

[00:25:40] Speaker 00:
Fair enough, Your Honor.

[00:25:41] Speaker 00:
So tell me what lengthy delay is.

[00:25:42] Speaker 00:
I can't make any promises.

[00:25:43] Speaker 00:
I know that we're actively working on the proceeding.

[00:25:49] Speaker 03:
But presumably there would be, at that point, the traditional APA action available for agency action and reasonable delay.

[00:25:58] Speaker 00:
That's correct, Your Honor.

[00:26:01] Speaker 01:
Is there been any harm that you're aware of in the last eight – I guess it's still been operating the way it was for the last eight weeks because there's been the interim stay in place, so to speak.

[00:26:11] Speaker 01:
Anything you're aware of that's been – I know it's not in the record.

[00:26:15] Speaker 00:
As far as ground identification, I – there's nothing I can point to.

[00:26:20] Speaker 00:
I will say that I'm not sure that that kind of harm is necessarily

[00:26:24] Speaker 00:
the kind of confusion that would generate customer complaints.

[00:26:29] Speaker 00:
But it's true that I can't say that there's anything not before you that would evidence the harm that the division was concerned about.

[00:26:40] Speaker 04:
Until this channel can get carried on cable, putting aside the harm that you described of your confusion, is there any harm to anybody?

[00:26:54] Speaker 00:
I don't know that there is any harm to anybody.

[00:26:56] Speaker 00:
The harm that PMCM has emphasized in its briefs was the harm of being taken off the air, but of course the FCC

[00:27:10] Speaker 00:
would permit PMCM to continue to operate so long as it obeyed the interim channel assignment and operated on Virtual Channel 33, which I'd like to point out to the court is required under the terms of the construction permit, which is expressly subject, makes the authority that it confers expressly subject to compliance with all FCC regulations.

[00:27:34] Speaker 00:
And here, the channel tuning protocol is a part of those regulations.

[00:27:38] Speaker 00:
The division's interim assignment was an implementation of that regulation.

[00:27:42] Speaker 00:
And I think to say that PMCM was free to ignore it just is not consistent with the terms of the construction permit.

[00:27:51] Speaker 01:
Do you see, do you acknowledge that being on channel 33 is not the same economically as being on channel 3?

[00:27:58] Speaker 00:
I don't know that the record supports that.

[00:28:01] Speaker 00:
That's PMCM's allegation.

[00:28:02] Speaker 00:
That's one of the arguments I think the agency would consider in the merits proceeding.

[00:28:08] Speaker 00:
But PMCM has made that bold assertion.

[00:28:13] Speaker 00:
Judge Kavanaugh, I frequently find channels in the higher ranges that I watch and actually don't.

[00:28:21] Speaker 01:
not always find them.

[00:28:23] Speaker 01:
So I'll take your personal testimony with mine.

[00:28:26] Speaker 00:
As Judge Garland pointed out, you know, anecdotal evidence perhaps shouldn't govern here, and I think that, you know, this is one reason that it makes sense for the agency to take account of all these arguments in its merits proceeding.

[00:28:41] Speaker 00:
I did just before

[00:28:43] Speaker 00:
I conclude, or if you have any further questions.

[00:28:45] Speaker 01:
Yeah, I still have a question on the statutory language of 331.

[00:28:49] Speaker 01:
So in their reply brief, they say,

[00:28:52] Speaker 01:
I'll just read this and get your reaction to this.

[00:28:55] Speaker 01:
The disparity between VHF and UHF channels that Congress sought to address in Section 331A lives on through the use of major channel numbers.

[00:29:05] Speaker 01:
If a station would have been identified by the consumers as a VHF station in 1982, it must be so identifiable in 2014.

[00:29:13] Speaker 01:
Assignment of Virtual Channel 33 to WJLP would render the station, for all practical purposes, a UHF station.

[00:29:22] Speaker 01:
So what's wrong with that theory of the statute?

[00:29:30] Speaker 00:
Perhaps the primary thing wrong is that UHF, VHF, those are defined terms commonly understood to refer to specific ranges of frequencies.

[00:29:38] Speaker 00:
And in fact, particularly, I did want to briefly address the Spectrum Act argument, but in the Spectrum Act, I believe it's 47 USC 1401, UHF and VHF are specifically defined in that statute to mean those ranges of frequencies.

[00:29:56] Speaker 01:
So even if it comes across as something

[00:29:58] Speaker 01:
VHF and UHF to consumers had one meaning, 2 through 13 and then above 13, but you're saying in the statute 331, the technical definition, still VHF could mean something with a virtual channel above 13.

[00:30:14] Speaker 00:
That's correct.

[00:30:17] Speaker 00:
Very briefly, at the time of the court's decision, there was in fact a channel in New Jersey that had a virtual channel in the 1 to 13 range.

[00:30:25] Speaker 00:
And that wasn't an obstacle to this court's requiring the agency to reallocate the radio frequency channel.

[00:30:32] Speaker 00:
So I think it's PMCM is the position it's taking here today is somewhat inconsistent.

[00:30:37] Speaker 01:
Well, I didn't follow that.

[00:30:38] Speaker 00:
At the time of the 2012 PMCM case, the station that had moved off of its radio frequency channel in the VHF range to make it so that there was no commercial... Channel 9.

[00:30:49] Speaker 00:
That's right.

[00:30:50] Speaker 00:
It was still Channel 9 as far as viewers was concerned.

[00:30:52] Speaker 00:
It was still using virtual Channel 9.

[00:30:55] Speaker 00:
But that's not what the statute is about.

[00:30:57] Speaker 00:
The statute is about radio frequency.

[00:30:59] Speaker 00:
And just very briefly, the same is true because Council addressed the Spectrum Act.

[00:31:05] Speaker 00:
The Spectrum Act is about an incentive option of broadcast TV spectrum.

[00:31:10] Speaker 00:
It concerns spectrum in every portion of the statute and it references spectrum and these defined terms, VHF channel, UHF channel in 1452G that Council has invoked.

[00:31:26] Speaker 00:
And as to the cable carriage issue just very briefly that arose toward the end of argument here, that argument first appears in the reply brief at eight to 10, I believe, and it's our position that that argument is waived.

[00:31:42] Speaker 00:
But in any event, however the agency may have interpreted the term channel in the context of the cable carriage statute, that doesn't mean that the same definition would need to apply in the context of the Spectrum Act.

[00:31:56] Speaker 03:
As long as we're being anecdotal here.

[00:31:58] Speaker 03:
So my recollection of the battle of days was that the difference between UHF and VHF was not just number, but quality of the reception.

[00:32:08] Speaker 03:
And that was the reason why UHF was disfavored.

[00:32:12] Speaker 03:
And I take it that now there is no difference in terms of reception.

[00:32:15] Speaker 03:
Is that right?

[00:32:16] Speaker 00:
That's right.

[00:32:16] Speaker 00:
And in fact, in some cases in digital television... It's better.

[00:32:20] Speaker 01:
UHF is better.

[00:32:21] Speaker 00:
UHF may be better.

[00:32:22] Speaker 01:
People like the low numbers.

[00:32:24] Speaker 01:
That's the theory.

[00:32:26] Speaker 01:
Just so we don't leave that unresponded to.

[00:32:28] Speaker 01:
People like the low numbers because it's economically valuable to them.

[00:32:31] Speaker 01:
I mean, unless the market is foolish, which I doubt, there's a strong market to get the low numbers that match what were the traditional VHS stations.

[00:32:40] Speaker 00:
That is the theory.

[00:32:41] Speaker 01:
Is there any evidence for that?

[00:32:44] Speaker 01:
Other than people are spending millions of dollars based on that theory, there's no evidence.

[00:32:48] Speaker 00:
There's no evidence in the record before the court here that that's the case.

[00:32:52] Speaker 00:
That is something that the agency can take account of in the merits proceeding.

[00:32:56] Speaker 00:
And as Judge Garland helpfully pointed out, we're here on a petition for mandamus.

[00:33:00] Speaker 00:
Even if that's true, that doesn't mean that PMCM has shown a clear right to relief under the statute.

[00:33:07] Speaker 00:
Questions?

[00:33:10] Speaker 03:
More time?

[00:33:11] Speaker 03:
We'll give you some more time anyway.

[00:33:13] Speaker 03:
Step right up.

[00:33:13] Speaker 03:
I do have a question for you.

[00:33:17] Speaker 03:
So we're here under the All Writs Act, right?

[00:33:20] Speaker 03:
So how does this come within the All Writs Act?

[00:33:22] Speaker 03:
The All Writs Act is to issue all writs necessary or appropriate in the aid of our respective jurisdiction.

[00:33:28] Speaker 03:
So normally this means either to ensure that our mandate is carried out, assume for the moment that I don't think that our previous decision resolved this question, or for agency action unreasonably delayed.

[00:33:42] Speaker 03:
And at least at the moment at which you sought mandamus, can hardly say there was unreasonable delay with respect to their termination of the underlying issue, right?

[00:33:54] Speaker 02:
Right.

[00:33:55] Speaker 02:
At that time, right?

[00:33:55] Speaker 03:
Right.

[00:33:56] Speaker 03:
So how do we get to mandamus here?

[00:33:59] Speaker 02:
Well, there's also a third factor.

[00:34:00] Speaker 02:
What's the third?

[00:34:01] Speaker 02:
The third factor is if the agency is acting in direct contravention of the statute.

[00:34:06] Speaker 03:
Well, that's in the district court mandamus, but it's not in the mandamus that's available to us.

[00:34:14] Speaker 03:
This case is brought under 1651.

[00:34:16] Speaker 03:
That's the only mandamus authority that we have.

[00:34:21] Speaker 03:
So I'm not sure how

[00:34:25] Speaker 03:
We don't get to make agencies act that way unless... Well, let's just get it this way.

[00:34:30] Speaker 02:
First of all, I actually thought that this was in aid of enforcing your original mandate because what the FCC is doing is evading it.

[00:34:37] Speaker 03:
I understand that argument.

[00:34:40] Speaker 03:
I just want to set it aside to see if there's another argument.

[00:34:42] Speaker 03:
But if that's what it is, I understand.

[00:34:44] Speaker 02:
And secondly, in terms of the delay issue,

[00:34:46] Speaker 02:
What's happening is, because of the disability that the Commission has put us under by not being able to be carried on cable TV, that takes us away from 70 percent of our potential audience.

[00:34:57] Speaker 02:
The FCC must know that no TV station can survive without being able to reach 70 percent of its audience.

[00:35:03] Speaker 02:
So we're on iron lung now.

[00:35:06] Speaker 02:
And when you talk about delay, I mean, the FCC said back in

[00:35:11] Speaker 02:
you know, July, that they were going to resolve this matter with undue delay.

[00:35:15] Speaker 02:
It's now February, and there's evidently no end in sight.

[00:35:18] Speaker 03:
But you have a stay right now, right?

[00:35:20] Speaker 03:
We do.

[00:35:20] Speaker 03:
So if you're on Iron Lung, it's not because of the FCC at this point, right?

[00:35:27] Speaker 03:
I mean, you're not really on iron line.

[00:35:29] Speaker 02:
We're on an iron line because of the FCC's delay in resolving the whole case, which includes whether we're going to be allowed to be carried on table TV.

[00:35:36] Speaker 01:
You can't contract, I assume, in this status.

[00:35:40] Speaker 01:
We can't contract.

[00:35:41] Speaker 01:
You can't get effective carriage, and maybe I'm wrong about this.

[00:35:45] Speaker 01:
I thought you said in the brief that your ability to participate in the market with this cloud of uncertainty hanging over you is impeding your ability.

[00:35:53] Speaker 02:
That's absolutely true.

[00:35:56] Speaker 02:
So I think the delay factor is a real one because we're sucking wind right now because of the position the FCC has put us in.

[00:36:05] Speaker 02:
And if the case is not resolved, by the time we go through the administrative process and get back here again in two years, there's going to be a corpse in front of you, not a live television station.

[00:36:15] Speaker 02:
The other thing I would add in relation to the interim status of the decision the FCC made, counsel for the FCC said what they were doing by putting us on channel 33 was maintaining the status quo.

[00:36:27] Speaker 02:
I thought I understood her to say that.

[00:36:28] Speaker 02:
But that wasn't the case at all.

[00:36:30] Speaker 02:
We were operating on channel 3.

[00:36:32] Speaker 02:
There wasn't a single person in the 22 million people that receive our signal that registered any confusion at all, even though the other side was saying, oh, there's going to be all confusion.

[00:36:42] Speaker 02:
And in fact, as I said, there's 105 situations like this throughout the United States where the FCC hasn't done a single thing to remediate an overlapping PSIP issue like the one we have here.

[00:36:53] Speaker 02:
In fact, ours is less egregious than those because at least we've got different minor channel and major channels.

[00:36:58] Speaker 02:
in the 105 instances, including the other one in New Jersey, they had the same major minor channel combination.

[00:37:05] Speaker 02:
So you would think if there was going to be confusion, it would be even more in those situations, which the FCC doesn't care about.

[00:37:14] Speaker 02:
But for the commission to say moving us to channel 33 maintains the status quo is just not true.

[00:37:19] Speaker 03:
The interveners say they'll be injured if it goes the other way.

[00:37:24] Speaker 03:
How can we make a determination about who will be injured without any record?

[00:37:29] Speaker 03:
We have your word on the question, which is not bad.

[00:37:32] Speaker 03:
But we have your word on the injury to you, and we have their word by declaration of the injury to them.

[00:37:40] Speaker 02:
Well, what they tellingly did not say was that there was any single consumer, any viewer of theirs that suffered any confusion.

[00:37:49] Speaker 02:
And you can be sure that if there was even one little old lady somewhere that was confused, they would have dragged her before the FCC.

[00:37:55] Speaker 01:
But it's the brand dilution, right?

[00:37:58] Speaker 01:
Channel 3 in Hartford wants to be Channel 3 down into Lower Connecticut, and Channel 3 in Philly wants to be Channel 3 throughout New Jersey and not be diluted.

[00:38:09] Speaker 01:
So how do you respond to that?

[00:38:11] Speaker 02:
Well, I say, first of all, brand dilution is not really something that's within the FCC's province to be deciding.

[00:38:17] Speaker 02:
But secondly, particularly for WFSB, the Hartford station, they don't even have any over-the-air reception in Fairfield County, which is where there's theoretical overlap, because the FCC's interference criteria, the way it's set up those channels for over-the-air reception makes it so that there's interference there between a New York station and a Hartford station, so people just can't pick up the channel over the air.

[00:38:43] Speaker 02:
And while we're not on cable, there's nobody that can be confused because we're not on cable.

[00:38:48] Speaker 02:
So there's really no way that there could be any brand dilution that they're suffering from.

[00:38:54] Speaker 01:
The point is, if you were to win, you would be on cable.

[00:38:57] Speaker 01:
That's your theory.

[00:38:58] Speaker 02:
We would be on cable.

[00:38:59] Speaker 02:
And yeah, then we'd have the situation where people would see Channel 3.1, which is Eyewitness News, Hartford, and Channel 3.10, which is MeTV, Middlesex Township, New Jersey.

[00:39:10] Speaker 02:
I mean, you've got to attribute a little bit of intelligence to the viewing audience.

[00:39:15] Speaker 02:
I don't see the possibility for confusion there.

[00:39:18] Speaker 02:
And as I say, this situation exists in many, many markets around the United States with no confusion, no brand delusion, no nothing.

[00:39:26] Speaker 02:
And just to accept their assertion that there's going to be this problem, I think, is wrong.

[00:39:35] Speaker 03:
Thank you.

[00:39:35] Speaker 03:
We'll take the matter under submission.