[00:00:00] Speaker 00: Case number 24-1004, Radio Communications Corporation petitioner versus Federal Communications Commission and United States of America. [00:00:10] Speaker 00: Mr. Welch for the petitioner, Mr. Sorensen for the respondents. [00:00:16] Speaker 04: Mr. Welch, good morning. [00:00:18] Speaker 02: Good morning, and may it please the court. [00:00:21] Speaker 02: The ultimate issue for the court to decide in this case is whether petitioner has the best reading of the Low Power Protection Act, and in our view, [00:00:31] Speaker 02: the Low Power Protection Act promotes nationwide Class A licensing to protect small community low power TV licenses. [00:00:41] Speaker 02: On the other hand, paragraph 38 of the order on review surmises that the purpose of the Low Power Protection Act is to promote nationwide Class A license denial to protect national association [00:01:00] Speaker 02: of broadcasters' urban-based clients, and that's an end that is achievable without any legislation whatsoever. [00:01:14] Speaker 02: Historically, the FCC introduced urban broadcast competition through low-power licensing about 40 years ago. [00:01:29] Speaker 04: Before you get to history, let's just talk about the text of the governing statute. [00:01:34] Speaker 04: The question is whether your client's station operates in a designated market area with not more than 95,000 households. [00:01:48] Speaker 02: Your honor. [00:01:49] Speaker 02: That's in the statute, obviously. [00:01:51] Speaker 02: In the statute. [00:01:51] Speaker 02: Obviously. [00:01:53] Speaker 02: But that's the very end of the substantive part of the statute. [00:01:58] Speaker 04: That's the operative text. [00:02:00] Speaker 02: It's operative text, but it's in a, that's the only place. [00:02:07] Speaker 02: It's an eligibility requirement. [00:02:09] Speaker 02: It's an eligibility requirement, and it's the only place in this act where there's conceivably an argument that the [00:02:18] Speaker 04: The eligibility? [00:02:19] Speaker 02: That the Congress intended to limit eligibility as the FCC construes it. [00:02:26] Speaker 02: So that very last thing that's in this section is at the bottom of something called Considerations for Eligibility. [00:02:36] Speaker 04: What is the designated market area in which your client operates? [00:02:43] Speaker 04: Hartford, New Haven, right? [00:02:45] Speaker 04: New Haven, yeah. [00:02:47] Speaker ?: Okay. [00:02:48] Speaker 04: A lot more than 95,000 households in that designated market area. [00:02:54] Speaker 02: Yes, but there's not 95,000 in my client's licensed area. [00:03:00] Speaker 04: No, but the statute is key to the DMA. [00:03:04] Speaker 05: I would disagree, Your Honor. [00:03:09] Speaker 02: How can you disagree? [00:03:10] Speaker 02: That's what the statute says. [00:03:11] Speaker 02: Well, I can disagree if we don't jump to the end of the statute. [00:03:18] Speaker 03: Because we're missing. [00:03:19] Speaker 03: I'm not meaning to be dismissive of the argument. [00:03:21] Speaker 03: I'm not following your suggestion that because the critical words in the statute are somewhere down the line in the statute, they're less worthy than if they were further up in the statute. [00:03:35] Speaker 02: Well, on page one of the statute, Congress defined what a DMA is. [00:03:42] Speaker 02: And it's not limited by size. [00:03:45] Speaker 02: It doesn't say that it's protecting [00:03:48] Speaker 02: urban area licensees. [00:03:50] Speaker 02: It just says a DMA is what Nielsen says a DMA is. [00:03:55] Speaker 02: And that's the definition. [00:03:57] Speaker 02: And what the FCC is doing, because if I may walk through the section of considerations, there are six licensing considerations. [00:04:08] Speaker 02: Three of them are listed in paragraph 18 of the FCC's order. [00:04:14] Speaker 02: And those [00:04:15] Speaker 02: Those are the conditions under Part I that are not spelled out here. [00:04:22] Speaker 02: So you have to go to Section 336 to see what the three conditions are. [00:04:27] Speaker 02: And they operate 18 hours a day. [00:04:30] Speaker 02: That has nothing to do with limiting anything, other than you have to show that. [00:04:38] Speaker 02: Three hours a week of local programming. [00:04:41] Speaker 02: Again, that's how is the station operating. [00:04:45] Speaker 02: You have to have rule compliance with the low power TV rules. [00:04:50] Speaker 02: Again, how did the licensee operate? [00:04:53] Speaker 02: Then in double I, demonstrate interference free operation. [00:04:59] Speaker 02: While they already exist as a licensee, we can submit a pro forma kind of exhibit, say C file number, whatever. [00:05:06] Speaker 02: We demonstrated interference protection. [00:05:09] Speaker 02: That again is a manner of operating condition. [00:05:15] Speaker 02: operate within a DMA. [00:05:17] Speaker 02: My client operates in a DMA, not all low power PV stations do. [00:05:24] Speaker 02: So that's another manner of operating condition. [00:05:28] Speaker 02: And then when we get to the 95,000, this is where the FCC turns manner of operating conditions into a market qualification condition, completely [00:05:44] Speaker 02: different than all the preceding ones. [00:05:51] Speaker 02: It's how does the client, how does the low power TV operate? [00:05:58] Speaker 02: He operates by serving 15,000 people. [00:06:02] Speaker 02: Who does he operate to serve 15,000 people? [00:06:07] Speaker 02: That's how we view it. [00:06:08] Speaker 02: These are all licensing manner of the low power TV. [00:06:14] Speaker 05: You started out your presentation with stating that we need to look at the best reading of the statute, as opposed to just going to the plain text of the statute, which indicates operates in a designated market area with not more than 95,000 television households. [00:06:32] Speaker 05: You would have us put an and instead of with, and then have us essentially reading it in the disjointed. [00:06:40] Speaker 05: And so I'm asking you, your argument seems to be tailored to best reading to support your claim, as opposed to us just going to the plain text. [00:06:50] Speaker 02: Well, if you start with the purpose of the statute being to limit eligibility, as the FCC does on page one of its brief, it doesn't even reference, and I don't know that it's even in the order, what they're protecting. [00:07:05] Speaker 05: Community of license is not in the statute. [00:07:08] Speaker 02: It's that Section 307B, which has licensed every single low-power TV station that exists. [00:07:17] Speaker 02: There isn't a single broadcast station that is licensed to a DMA. [00:07:23] Speaker 02: This is a change of 100 years of history. [00:07:26] Speaker 05: You don't raise a facial constitutional challenge to the statute? [00:07:32] Speaker 02: Not on that basis, no. [00:07:38] Speaker 02: Our reading of the statute is constitutional. [00:07:42] Speaker 02: We're using the commission's current licensing scheme to make a nationwide licensing. [00:07:47] Speaker 02: The commission wants to do, for the first time, non-nationwide licensing. [00:07:52] Speaker 05: But again, going back to your term, community of license, that's in the Communications Act. [00:07:57] Speaker 05: It's not in the LPPA. [00:08:00] Speaker 02: Which is an amendment to the Communications Act. [00:08:05] Speaker 02: So we can't ignore [00:08:07] Speaker 02: language in the statute, and we brought that up with the Commission where we didn't get a response. [00:08:14] Speaker 02: So I, you know, I was hard-pressed to say, to counter anything on that point, because there's nothing there. [00:08:24] Speaker 02: What about your 100-year history? [00:08:26] Speaker 02: Well, it has nothing to do with it, but it has everything to do with it. [00:08:30] Speaker 02: That's how the stations operate on the basis of 307B. [00:08:41] Speaker 02: Now, perhaps an interesting aspect of this is the commission says that the statute's clear, plain, straightforward, simple, unambiguous. [00:08:57] Speaker 02: But then it needs to alter the definition of DMA by adding 95,000 to it. [00:09:04] Speaker 02: Well, if Congress had wanted 95,000, [00:09:09] Speaker 02: TV households to be the standard, it would have made it part of the definition. [00:09:15] Speaker 02: But it didn't, it made it part of how does the licensee operate section of the statute. [00:09:34] Speaker 02: Now, if I could get to just a quick history of low power licensing. [00:09:40] Speaker 02: In the early 1980s, FCC came up with a great idea, low-power TV licensing, because it had found that urban areas, or the table of allotments, had served its purpose. [00:09:52] Speaker 02: So we need more competition in urban areas. [00:09:57] Speaker 02: So it came up with low-power TV, and even got rid of a licensing policy that precluded licensing in urban areas. [00:10:05] Speaker 02: But the FCC, [00:10:08] Speaker 02: Its plan of low power TV was fundamentally flawed because it left the low power TV stations unprotected to being taken over in effect by the current urban licensees. [00:10:27] Speaker 02: And Congress twice, I'm sorry, Your Honor. [00:10:31] Speaker 04: I'm just asking if my colleagues have any questions. [00:10:35] Speaker 04: I'll give you 30 seconds to wrap up and we'll give you rebuttal time. [00:10:38] Speaker 02: Okay, thank you. [00:10:41] Speaker 02: The FCC failed to protect the stations, and Congress twice told the FCC, protect low-power TV. [00:10:51] Speaker 02: My client lost the station the first go-around, and now we're in the second go-around, and the commission isn't protecting low-power TV again, in our view. [00:11:02] Speaker 02: It's just not doing it. [00:11:05] Speaker 02: It's not serving 98% of the country. [00:11:09] Speaker 04: We understand your position. [00:11:11] Speaker 02: Thank you. [00:11:12] Speaker 01: Thank you. [00:11:29] Speaker 01: Mr. Sorenson. [00:11:30] Speaker 01: Good morning. [00:11:31] Speaker 01: May it please the court, Adam Sorenson, for the government. [00:11:35] Speaker 01: The parties agree and your honors well understand based on your questioning that this case really comes down to the plain statutory language. [00:11:45] Speaker 01: RCC wants its low power television station located near New Haven, Connecticut to be eligible for the enhanced privileges of Class A status under the Low Power Protection Act. [00:11:57] Speaker 01: But as Congress made crystal clear in Section 2C2B of that statute, eligibility is restricted to stations that operate in a designated market area with no more than 95,000 television households. [00:12:15] Speaker 01: I think that straightforward conclusion resolves this case, and the court really need not reach most of petitioners' other arguments. [00:12:24] Speaker 01: The best reading of the Low Power Protection Act is that Congress meant what it said. [00:12:31] Speaker 01: The definition of DMA is clearly laid out in Section 2A2 of the statute. [00:12:39] Speaker 01: It refers directly to Nielsen Media Research's method of dividing TV markets for an equivalent. [00:12:46] Speaker 01: The commission here looked at it, decided there was no equivalent. [00:12:50] Speaker 01: I don't think the commission is sort of adding any additional language there. [00:12:54] Speaker 01: The with no more than 95,000 language comes directly from Section 2C2B of the statute and is most naturally read to apply to the immediately proceeding language, the designated market area term. [00:13:11] Speaker 05: Just thinking about what the RCC has stated about the amendment to the statute. [00:13:16] Speaker 05: So how would you read the LPPA and the Communications Act together trying to cut against this? [00:13:21] Speaker 01: Sure. [00:13:22] Speaker 01: I don't think that there's any conflict at all with Section 307B. [00:13:27] Speaker 01: That provision imposes a general obligation on the Commission to allocate broadcast facilities, channels, licenses fairly efficiently and equitably among the several states. [00:13:40] Speaker 01: It doesn't have anything in particular to say about low power television about designated market areas. [00:13:47] Speaker 01: And so it's just sort of a general background principle. [00:13:51] Speaker 01: And I think the more specific requirements of the LPPA control over that general provision. [00:13:58] Speaker 01: to the extent of any conflict. [00:13:59] Speaker 01: But again, I don't think there's any conflict here. [00:14:01] Speaker 01: We have this 95,000 threshold applies without respect to which state the DMA falls within. [00:14:09] Speaker 01: And so there's really no tension at all there. [00:14:12] Speaker 05: And then they also made an argument about the commission's failure to respond to its interstate commerce clause comment. [00:14:20] Speaker 05: Why didn't you respond? [00:14:21] Speaker 05: And if you had responded, what would you say? [00:14:23] Speaker 01: Sure. [00:14:23] Speaker 01: So I don't think the commission is required to respond to every single comment that commenters raise. [00:14:29] Speaker 01: We addressed most of RCC's obligations. [00:14:32] Speaker 01: The order mentions RCC some 30 times with respect to the particular Commerce Clause issue. [00:14:38] Speaker 01: The Communications Commission has been regulating broadcasting for a century now, and I think it's very well established that even local television broadcasting falls within the congressional power over interstate commerce. [00:14:53] Speaker 01: And if we were to respond to that issue, I think we would say that both on a technological level, the allocation of spectrum is an inherently federal issue because the signal contours of even a remote station [00:15:07] Speaker 01: can reach beyond state lines and interfere with the operations of signal in other states. [00:15:14] Speaker 01: Also, it's economic activity which substantially affects interstate commerce. [00:15:18] Speaker 01: You have national affiliates which sometimes operate these low power stations. [00:15:22] Speaker 01: And so I don't think there's any question under well-established precedent that this is consistent with Congress's commerce power. [00:15:28] Speaker 05: And why did the FCC determine that the Class A eligible would not be entitled to the must carry rights? [00:15:35] Speaker 01: So I think it's important to understand that must-carry rights are very significant. [00:15:42] Speaker 01: And this is a long and hard fought issue between television broadcasters and cable companies. [00:15:48] Speaker 01: And I think Congress understands that and would not, through complete silence, import these very significant rights to Class A stations without saying anything, either in statutory text or history. [00:16:00] Speaker 01: Another thing to understand is that Class A status does not transform [00:16:04] Speaker 01: a low power station into a full power station. [00:16:07] Speaker 01: So with certain exceptions not relevant here, low power stations don't have must carry status. [00:16:13] Speaker 01: And so the status quo that Congress was dealing with when it enacted this statute was that low power stations, including class A stations, don't get must carry rights. [00:16:23] Speaker 01: And there's really nothing in the statute that indicated to the commission that Congress had even considered the issue, let alone taken the very significant step of extending must carry rights to class A stations. [00:16:39] Speaker 01: The court has no further questions. [00:16:40] Speaker 01: We ask the petition. [00:16:41] Speaker 01: Thank you. [00:16:49] Speaker 02: Thank you, Your Honor. [00:16:51] Speaker 02: So the must carry is an interesting issue. [00:16:54] Speaker 02: In 2004, Congress adopted an amendment to the Communications Act involving the Satellite Home Viewers Improvement Act. [00:17:06] Speaker 02: And in that act, they covered must carry issue for satellites who can assert must carry on satellites. [00:17:17] Speaker 02: And Congress specifically added language to the Communications Act to say low power or class A stations cannot assert must carry on satellite. [00:17:29] Speaker 02: And we're completely silent about must carry on [00:17:36] Speaker 02: on the terrestrial landline cable TV system. [00:17:41] Speaker 02: So I would just say Congress has spoken on the issue twice in the statute itself. [00:17:47] Speaker 02: The exception has to be in the statute, which it isn't, especially in the statute. [00:17:53] Speaker 02: The commission's inferring it from silence. [00:17:56] Speaker 02: And then if you look at the 2004 Amendment to the Communications Act, Congress specifically said no must carry on satellite, but said nothing. [00:18:06] Speaker 02: about on cable TV. [00:18:09] Speaker 04: Thank you, Council. [00:18:10] Speaker 04: Thank you. [00:18:11] Speaker 04: The case is submitted.