Opening Brief, Free Access v. FCC, No. 16 1100 (D.C. Cir.)

ORAL ARGUMENT NOT YET SCHEDULED
No. 16-1100
________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________________________________
FREE ACCESS & BROADCAST TELEMEDIA, LLC, et al.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Respondents.
________________________________________
On Petition for Review from
the Federal Communications Commission
________________________________________
BRIEF FOR PETITIONERS
________________________________________
A. WRAY FITCH III
GEORGE R. GRANGE II
GAMMON & GRANGE, P.C.
8280 Greensboro Dr., 7th Floor
McLean, VA 22102
(703) 761-5013
Counsel for Petitioner
Signal Above, LLC
GLENN B. MANISHIN
PARADIGMSHIFT LAW LLP
6735 Breezy Drive, Suite 101
Warrenton, VA 20187
(202) 256-4600
Counsel for Petitioners Free Access &
Broadcast Telemedia LLC, Word of
God Fellowship, Inc., Grace Worship
Center Inc., EICB-TV East, LLC and
EICB-TV West, LLC
Additional Counsel Listed on Next Page
August 26, 2016—Page Proof Version

ROBERT OLENDER
KOERNER & OLENDER PC
7020 Richard Drive
Bethesda, MD 20817
(301) 468-3336
Co-counsel for Petitioner
Word of God Fellowship, Inc.

CERTIFICATE AS TO PARTIES, RULINGS,
AND RELATED CASES
Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1) and Fed. R. App.
P. 26.1, the undersigned counsel certifies as follows:
(A) Parties and Amici. Petitioners are Free Access & Broad-
cast Telemedia, LLC, Word of God Fellowship, Inc., Signal Above, LLC,
Grace Worship Center, Inc., Excellence In Christian Broadcasting
(“EICB”)-TV East, LLC and EICB-TV West, LLC. Respondents are the
Federal Communications Commission (“FCC”) and the United States of
America.
(B) Rulings Under Review. The rulings under review are:
1. Report and Order, Expanding the Economic and Innovation
Opportunities of Spectrum Through Incentive Auctions, GN Dkt. No. 12-
268, FCC 15-140 (rel. Oct. 22, 2015), 81 Fed. Reg. 4969 (Jan. 29, 2016);
2. Third Report and Order and Fourth Notice of Proposed
Rulemaking, Amend. of Parts 73 and 74 of the Commission’s Rules to
Establish Rules for Digital Low Power Television and Television
Translator Stations, MB Dkt. No. 03-185, GN Dkt. No. 12-268, ET Dkt.
No. 14-175, FCC 15–175 (rel. Dec. 17, 2015), 81 Fed. Reg. 5041 (Feb. 1,
2016); and

ii
3. All related final orders and rules issued by the FCC in
connection with the proceedings captioned In the Matter of Expanding
the Economic and Innovative Opportunities of Spectrum Through
Incentive Auctions, GN Dkt. No. 12-268, and Amend. of Parts 73 and 74
of the Commission’s Rules to Establish Rules for Digital Low Power
Television and Television Translator Stations, MB Dkt. No. 03-185.
(C) Related Cases. In National Ass’n of Broad. v. FCC, 789
F.3d 165 (D.C. Cir. 2015) (“NAB”), this Court decided a challenge to the
primary FCC order structuring a landmark, first-ever incentive spect-
rum auction. While the Court’s opinion describes the general param-
eters of the incentive auction, NAB did not involve the subsequent FCC
auction orders and legal issues presented here.
In June 2016, by way of a per curiam, unpublished judgment, the
Court dismissed on jurisdictional and standing grounds, without reach-
ing the merits, a petition for review filed by Free Access & Broadcast
Telemedia, LLC and Word of God Fellowship, Inc. challenging the
FCC’s initial spectrum auction orders in GN Docket No. 12-268. Free
Access & Broad. Tele. v. FCC, No. 15-1346 (D.C. Cir. June 28, 2016)
(“Free Access I”). Free Access and Word of God Fellowship petitioned for

iii
rehearing and rehearing en banc on Aug. 12, 2016; that request is
pending.
This petition for review was filed before Free Access I was argued
on May 5, 2016. Still pending before the Court are the consolidated
petitions for review in Mako Comms., LLC v. FCC, Nos. 15-1264 & 15-
1280—argued together with No. 15-1346 on May 5, 2016—that chal-
lenge the same initial FCC orders as Free Access I and as to which the
FCC has also asserted jurisdictional objections to appellate review.
/s/ Glenn B. Manishin
August 26, 2016 Glenn B. Manishin

iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to Fed. R. App. P. 26.1 and Circuit Rules 26.1 and
28(a)(1), Petitioners make the following disclosures:
Free Access & Broadcast Telemedia, LLC (“Free Access”) has no
parent companies, and no publicly-held company has a 10% or greater
ownership interest (such as stock or partnership shares) in Free Access.
Word of God Fellowship, Inc. (“WOGF”) has no parent companies,
and no publicly-held company has a 10% or greater ownership interest
(such as stock or partnership shares) in WOGF.
Signal Above, LLC (“Signal Above”) has no parent companies and
no publicly-held company has a 10% or greater ownership interest (such
as stock or partnership shares) in Signal Above.
Excellence In Christian Broadcasting (“EICB”), comprising EICB-
TV East, LLC and EICB-TV West, LLC, has no parent companies and
no publicly-held company has a 10% or greater ownership interest (such
as stock or partnership shares) in either EICB-TV East, LLC or EICB-
TV West, LLC.
Grace Worship Center, Inc. (“Grace Worship”) has no parent
companies and no publicly-held company has a 10% or greater

v
ownership interest (such as stock or partnership shares) in Grace
Worship.

vi
TABLE OF CONTENTS
Page
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED
CASES ................................................................................................... i
CORPORATE DISCLOSURE STATEMENT .................................... iv
TABLE OF CONTENTS .................................................................... vi
TABLE OF AUTHORITIES ............................................................... ix
GLOSSARY ..................................................................................... xviii
JURISDICTIONAL STATEMENT ..................................................... 1
STATEMENT OF THE ISSUES FOR REVIEW ................................ 1
STATUTES ........................................................................................... 3
STATEMENT OF THE CASE ............................................................. 3
STATEMENT OF FACTS ................................................................... 7
A. Low-Power Television (LPTV): An Overview.................... 7
B. Statutory and Regulatory Background .......................... 10
1. LPTV—Regulatory and Legislative History ......... 10
2. LPTV—Current Regulatory Framework .............. 11
a. The Communications Act ............................. 12
b. The Spectrum Act .......................................... 14
i. Reverse Auction ................................... 14
ii. Reorganization ..................................... 15

vii
iii. Forward Auction .................................. 17
C. The FCC’s Initial Spectrum Auction Orders .................. 18
1. Reverse Auction ...................................................... 18
2. “Repacking” ............................................................ 18
3. Forward Auction ..................................................... 20
4. Treatment of LPTV ................................................ 21
5. Regulatory Flexibility Analysis ............................. 25
D. The Commencing Operations Order ............................... 26
E. The Channel Sharing Order ........................................... 29
SUMMARY OF ARGUMENT ........................................................... 32
STANDING ........................................................................................ 35
ARGUMENT ....................................................................................... 36
I. THE FCC’S ORDERS VIOLATE THE SPECTRUM
ACT’S EXPRESS PROHIBITION AGAINST
“ALTER[ING] THE SPECTRUM USAGE RIGHTS
OF LOW-POWER TELEVISION STATIONS” .............. 36
A. The FCC’s orders contravene the Spectrum
Act’s unambiguous prohibition ............................. 37
1. Plain Language ............................................ 38
2. Structure ...................................................... 40
3. Legislative History ....................................... 43

viii
B. Even if the Spectrum Act’s prohibition were
ambiguous, the FCC’s interpretation would be
unreasonable ......................................................... 44
II. THE FCC’S UNLAWFUL ORDERS ARE ARBITRARY
AND CAPRICIOUS ......................................................... 46
III. THE FCC’S CHANNEL SHARING ORDER
VIOLATES THE REGULATORY FLEXIBILITY
ACT AND SHOULD BE REVERSED, REMANDED
AND DEFERRED ............................................................. 55
A. Lack of Quantification .......................................... 57
B. Failure To Consider Alternatives........................... 58
C. Adopting Steps That Do Not “Minimize”
Adverse Impacts....................................................... 58
IV. THE FCC’S ORDERS RAISE SERIOUS FIFTH AMEND-
MENT, PRIVATE DELEGATION (DUE PROCESS) AND
BILL OF ATTAINDER ISSUES THIS COURT SHOULD
AVOID BY CONSTRUING THE SPECTRUM ACT TO
PRESERVE LPTV’S USAGE RIGHTS .......................... 61
A. Unconstitutional Taking of Private Property ....... 62
B. Unconstitutional Private Delegation ..................... 64
C. Administrative Bill of Attainder ............................ 67
CONCLUSION.................................................................................... 72
CERTIFICATE OF COMPLIANCE ................................................... 73
CERTIFICATE OF SERVICE ........................................................... 74
ADDENDUM A: STATUTES ............................................................. 75

ix
TABLE OF AUTHORITIES
Page(s)
CASES
ABA v. FTC, 430 F.3d 457 (D.C. Cir. 2005) .................................. 44
Anti-Fascist Committee v. McGrath, 341 U. S. 123 (1951) .......... 68
Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C.
Cir. 2001) ................................................................................... 49
Arlington v. FCC, 133 S. Ct. 1863 (2013) ............................... 68-69
Ass’n of Am. R.R. v. Dept. of Transp., 721 F.3d 666
(D.C. Cir. 2013) .......................................................................... 65
* Ass’n of Am. R.R. v. Dept. of Transp., 821 F.3d 19 (D.C.
Cir. 2016) .............................................................................. 65,66
Associated Fisheries v. Daley, 127 F.3d 104 (1st Cir.
1997)................................................................................. 55-56,61
Carter v. Carter Coal Co., 298 U.S. 238 (1936) ........................ 65,66
Cent. Fla. Enter., Inc. v. FCC, 683 F.2d 503 (D.C. Cir.
1982) ...................................................................................... 14,63
* Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) ................................................ 34,37,38,43,44
Citizens Coal Council v. Norton, 330 F.3d 478 (D.C.
Cir. 2003) ................................................................................... 38
Currin v. Wallace, 306 U.S. 1 (1939) ............................................. 67
Dehainaut v. Pena, 32 F.3d 1066 (7th Cir. 1994) ......................... 69
* Authorities on which we primarily rely are marked with asterisks.

x
Fox Tele. Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir.
2002) ........................................................................................... 61
* FCC v. Fox Tele. Stations, Inc., 556 U.S. 502 (2009) ............... 47,51
FCC v. Sanders Bros. Radio, 309 U.S. 470 (1940) ....................... 64
FCC v. Nat’l Citizens Comm. for Broad. 436 U.S. 775 (1978) ..... 13
FCC v. WJR, The Goodwill Station, 337 U.S. 265 (1949) ............ 13
Finnegan v. Leu, 456 U.S. 431 (1982) ........................................... 44
Flemming v. Nestor, 363 U.S. 603 (1960) ..................................... 69
Greater Boston Tele. Corp. v. FCC, 444 F.2d 841 (D.C.
Cir. 1970) ................................................................................... 13
In re Tracy Broad. Corp., 696 F.3d 1051 (10th
Cir. 2012) ................................................................................... 63
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................... 35
Mobile Relay Ass’n v. FCC, 457 F.3d 1 (D.C. Cir. 2006) .............. 64
* Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ................................................................. 47,48
National Ass’n of Broad. v. FCC, 789 F.3d 165
(D.C. Cir. 2015)........................................................................ ii,16
National Ass’n of Psychiatric Health Sys. v. Shalala, 120 F.
Supp. 2d 33 (D.D.C. 2000).......................................................... 60
National Cable & Tele. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) .............................................................. 54-55
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ......................... 62
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) ..................... 70

xi
Omnipoint Corp. v. FCC, 78 F.3d 620 (D.C. Cir. 1996) ............... 62
Palazzolo v. R.I., 533 U.S. 606 (2001)............................................ 63
Paradissiotis v. Rubin, 171 F.3d 983 (5th Cir. 1999) ................... 69
Patchak v. Jewell, ___ F.3d ___, 2016 WL 3854056 (D.C.
Cir. July 15, 2016) ............................................................... 69-70
Penn Cent. Transp. Co. v. New York, 438 U.S. 104 (1978) .......... 63
Peters v. Hobby, 349 U.S. 331 (1955) ............................................ 68
Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C.
Cir. 2011) ................................................................................... 62
Potter v. United States, 155 U.S. 438 (1894) ................................ 45
Prometheus Radio Project v. FCC, 373 F.3d 372 (3d.
Cir. 2004) ................................................................................... 72
Ratzlaf v. United States, 510 U.S. 135 (1994) .............................. 45
Roosevelt v. E.I. Dupont de Nemours & Co., 958 F.2d 416
(D.C. Cir. 1992) .......................................................................... 62
Russello v. United States, 464 U.S. 16 (1983) ............................... 41
Salzer v. FCC, 778 F.2d 869 (D.C. Cir. 1985) ............................... 10
Selective Serv. Sys. v. Minn. Pub. Interest Res. Grp.,
468 U.S. 841 (1984) ................................................................... 69
Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ................................. 35
Singleton v. Wulff, 428 U.S. 106 (1976) ........................................ 62
Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983) ............................. 36
Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984) ....................... 61

xii
U.S. Cellular Corp. v. FCC, 254 F.3d 78 (D.C. Cir. 2001) ............ 58
U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) ............ 61
United States v. Brown, 381 U.S. 437 (1965) ............................... 68
United States v. Lovett, 328 U.S. 303 (1946) ................................ 68
Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C.
Cir. 2002) ................................................................................... 72
Util. Air Reg. Group v. EPA, 134 S. Ct. 2427 (2014) .................... 55
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ............... 65
CONSTITUTION, PUBLIC LAWS AND U.S. CODE
U.S. CONST., Amend. 5 .................................................... 25,34,61,63
U.S. CONST., Art. I, § 9, cl. 3 .................................................... 67-69
Pub. L. No. 112-96, Tit. VI § 6401 et seq., 126 Stat.
156 (2012)..................................................................................... 14
Pub. L. No. 109-171, 120 Stat. 4 (2006) ........................................ 11
* Administrative Procedure Act, 5 U.S.C. § 500
et seq. ............................................................. 2,33-34,39, 46-48,60
* Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. ...... 2,25,34,55-60
* Spectrum Act of 2012, 47 U.S.C. § 1451 et seq. ............ 2-4,7,14,16-
19,23,29,37-39,42,44,51-52,54,57,61,67,70
5 U.S.C. § 558(c) ............................................................................. 39
5 U.S.C. § 603 ................................................................................. 25
* 5 U.S.C. § 604(a)(6) ......................................................... 56,58,59,60

xiii
5 U.S.C. § 605(b) ............................................................................ 56
5 U.S.C. § 607 ............................................................................ 57,58
5 U.S.C. § 611(a)(4) ........................................................................ 61
5 U.S.C. § 706 .................................................................................. 2
28 U.S.C. § 2342(1) .......................................................................... 1
28 U.S.C. § 2344 .......................................................................... 1,36
47 U.S.C. § 307 ............................................................................... 12
47 U.S.C. § 307(c)(3) ...................................................................... 12
47 U.S.C. § 309(k) .......................................................................... 14
47 U.S.C. § 312 .......................................................................... 13,39
47 U.S.C. § 312(c) ........................................................................... 39
47 U.S.C. § 312(d) .......................................................................... 39
47 U.S.C. § 312(e) ........................................................................... 39
47 U.S.C. § 333 ..................................................................... 12-13,38
47 U.S.C. § 402(a) ............................................................................. 1
47 U.S.C. § 1401(6) ................................................................... 15,40
47 U.S.C. § 1452(a) ........................................................................ 43
47 U.S.C. § 1452(a)(1) .......................................................... 15,38,42
47 U.S.C. § 1452(b) .................................................................... 41,42
47 U.S.C. § 1452(b)(1) ................................................................ 16,41
47 U.S.C. § 1452(b)(1)(A) ............................................................... 15

xiv
47 U.S.C. § 1452(b)(1)(B)(i) ............................................................ 15
47 U.S.C. § 1452(b)(1)(B)(ii) .......................................................... 15
47 U.S.C. § 1452(b)(2) ................................................................ 16,19
47 U.S.C. § 1452(b)(3) .................................................................... 16
47 U.S.C. § 1452(b)(4) ..................................................................... 40
47 U.S.C. § 1452(b)(4)(A) ............................................................... 16
* 47 U.S.C. § 1452(b)(5) ..................... 2,3,16,21,23,29,32-34,38,42,44-
45,46,61,63,67-68,70
47 U.S.C. § 1452(c) ................................................................... 42, 43
47 U.S.C. § 1452(c)(1)(A)................................................................. 17
REGULATORY MATERIALS
47 C.F.R. § 1.717 ............................................................................ 67
47 C.F.R. § 1.721 ............................................................................ 67
47 C.F.R. § 15.1 et seq. ................................................................... 12
47 C.F.R. § 15.5(b) .............................................................. 12, 38, 39
47 C.F.R. § 15.5(c) .................................................................... 38, 39
47 C.F.R. § 27.4 .............................................................................. 28
47 C.F.R. § 73.3700(g)(4) ................................................................ 27
47 C.F.R. § 73.3700(g)(4)(iii) .......................................................... 28
47 C.F.R. § 74.702(a) ...................................................................... 11
47 C.F.R. § 74.702(a)(1) ................................................................. 12

xv
47 C.F.R. § 74.786 .......................................................................... 12
47 C.F.R. § 74.802(f) ...................................................................... 51
2014 Quadrennial Regulatory Review, 29 FCC Rcd. 7835
(2014) ........................................................................................... 9
Amend. of Parts 73 and 74 of the Commission’s Rules
to Establish Rules for Digital Low Power Television and
Television Translator Stations, 19 FCC Rcd. 19331 (2004) ..... 10
Amend. of Parts 73 and 74 of the Commission’s Rules
to Establish Rules for Digital Low Power Television and
Television Translator Stations, 31 FCC Rcd. 120205
(Dec. 17, 2015) ......................... 6, 26-30, 46, 47, 50-52, 64, 66-67
Establishment of a Class A Television Service, 15 FCC Rcd.
6355 (2000) ................................................................................... 9
Digital Television Distributed Transmission Sys.
Tech., 23 FCC Rcd. 16731 (2008)............................................... 12
Inquiry Into the Future Role of Low-Power Television
Broad. and Television Translators, 82 F.C.C.2d
47 (1980) ................................................................................. 8, 11
Inquiry Into the Future Role of Low Power Television
Broad. and Television Translators, 48 Fed. Reg.
21478 (1983) ............................................................................... 11
Expanding the Economic and Innovation Opportunities
of Spectrum Through Incentive Auctions, 31 FCC Rcd.
14927 (Oct. 22, 2015) ..... 1, 6, 11, 20, 30-32, 36, 47-48, 49, 58-59
Expanding the Economic and Innovation Opportunities of
Spectrum Through Incentive Auctions, 30 FCC Rcd.
6746 (2015) ................................................................................ 53

xvi
6567 (2014) ............ 17-21, 23-27, 29-31, 40, 42-43, 45, 53, 57, 63
12357 (2012) ............................................ 8, 17, 18, 19, 21, 22, 42
Review of the Commission’s Rules Governing the Low Power
Television Service, 9 FCC Rcd. 2555 (1994).......................... 9, 11
OTHER MATERIALS
Alexander Volokh, The New Private-Regulation Skepticism:
Due Process, Non-Delegation, and Antitrust Challenges,
37 HARV. J. L. & PUB. POL. 931 (2014) ...................................... 66
Comments of Signal Above, GN Dkt. No. 12-268
(March 12, 2013) ........................................................................ 45
Ex Parte Comments of U.S. Small Business Admin.,
GN Dkt. No. 12-268 (June 12, 2015) ........................................ 56
Ex Parte Ltr. of EICB-TV East, GN Dkt. No. 12-268
(Jan. 21, 2013) ..................................................................... 51, 70
FCC, Consumer Guide: Low-Power Television (LPTV) Service
(Nov. 2015) ............................................................................... 8, 9
FCC, News Release, Broadcast Station Totals as of June 30,
2016 (July 2016) .......................................................................... 9
FCC, Initial Clearing Target of 126 Megahertz Set for the
Broadcast Television Spectrum Incentive Auction
(April 29, 2016) .......................................................................... 53
Free Access, Notice of Ex Parte Presentations, Attch. C
(Nov. 25, 2015) (letter of Chairman Wheeler to Rep.
Bilirakis) .............................................................................. 26, 57

xvii
IBN Pet. for Recon., GN Dkt. No. 12-168 (Sept. 13, 2014) .......... 54
John Cavaliere, The Bill of Attainder Clauses: Protections
From The Past In the Modern Administrative State,
12 AVE MARIA L. REV. 149 (2014)............................................... 69
Peter W. Huber et al., 2 FEDERAL TELECOMMUNICATIONS
LAW (2d ed. 2015) ................................................................. 13, 64
Study Disputes Predictions of Coming Spectrum Crunch,
PCWorld, Aug. 22, 2014............................................................. 54
Statement of FCC Commissioner O’Rielly before the
Senate Comm. on Commerce, Science and Transp.
(March 2, 2016) .......................................................................... 70
The Spectrum Crunch That Wasn’t, MIT Technology Review,
Nov. 26, 2012 ............................................................................. 54
Verizon Makes It Very Clear Its ‘Spectrum Crunch’ Never
Existed, Techdirt, Feb. 18, 2015 ............................................... 54

xviii
GLOSSARY
APA Administrative Procedure Act, 5 U.S.C.
§ 500 et seq.
ATBA Advanced Television Broadcasting
Alliance
Channel Sharing Order Third Report and Order and Fourth
Notice of Proposed Rulemaking, Amend.
of Parts 73 and 74 of the Commission’s
Rules to Establish Rules for Digital Low
Power Television and Television
Translator Stations, MB Docket No. 03-
185, GN Docket No. 12-268, ET Docket
No. 14-175, FCC 15-175 (rel. Dec. 17,
2015), 81 Fed. Reg. 5041 (Feb. 1, 2016),
31 FCC Rcd. 120205
Commencing Operations Report and Order, Expanding the
Order Economic and Innovation Opportunities
of Spectrum Through Incentive
Auctions, GN Docket No. 12-268, FCC 15-
140 (rel. Oct. 22, 2015), 81 Fed. Reg. 4969
(Jan. 29, 2016), 31 FCC Rcd. 14927
Commission Federal Communications Commission
Communications Act Communications Act of 1934, as
amended, 47 U.S.C. § 151 et seq.
FCC Federal Communications Commission
FRFA Final Regulatory Flexibility Analysis
Incentive Auction NPRM Notice of Proposed Rulemaking, Expand-
ing the Economic and Innovation Oppor-
tunities of Spectrum Through Incentive
Auctions, GN Docket No. 12-268, 27 FCC
Rcd. 12357 (2012).

xix
Incentive Auction R&O Report and Order, Expanding the Econ-
omic and Innovation Opportunities of
Spectrum Through Incentive Auctions,
GN Docket No. 12-268, 29 FCC Rcd. 6567
(2014).
LPTV Low-Power Television
MHz Megahertz
NAB National Association of Broadcasters
NPRM Notice of Proposed Rulemaking
RFA Regulatory Flexibility Act, 5 U.S.C. § 601
et seq.
Spectrum Act Title VI of the Middle Class Tax Relief
and Job Creation Act of 2012, Pub. L. No.
112-96, 126 Stat. 156, codified in part at
47 U.S.C. §§ 1451-57
UHF Ultra High Frequency
VHF Very High Frequency
WiFi A digital communications service and
associated devices operating in the
unlicensed 2.4 GHz and 5 GHz spectrum
bands in accordance with Part 15 of the
FCC’s Rules and the Institute of
Electrical and Electronics Engineers'
(IEEE) 802.11x suite of technical
standards, often referred to as “wireless
broadband”

JURISDICTIONAL STATEMENT
This Court has jurisdiction to review final orders of the Federal
Communications Commission (“FCC” or “Commission”) pursuant to 28
U.S.C. § 2342(1) and 47 U.S.C. § 402(a). The orders here are the Oct. 22,
2015 Commencing Operations Order (JA ___) and the Dec. 17, 2015
Channel Sharing Order (JA ___), both from GN Docket No. 12-268. Pet-
itioners timely filed for appellate review with this Court on March 28,
2016. 28 U.S.C. § 2344.
STATEMENT OF THE ISSUES FOR REVIEW
1. The FCC’s spectrum auction decisions will eliminate the
channels assigned to “many” low-power television (“LPTV”) stations and
force a substantial number of LPTV licensees to shut down—a fact the
FCC itself repeatedly concedes. The challenged orders (a) require LPTV
stations to cease broadcasting in their portion of the television spec-
trum, known as the “600 MHz Band,” when a new wireless carrier in-
tends to “commence operations,” and (b) purport to mitigate the result-
ing harm by authorizing “channel sharing” among LPTV stations.
Yet neither of these rules ensures that so-called “displaced” LPTV
licensees have an alternative, post-auction channel available on which

2
to operate. The principal issue presented is whether this contravenes
the Spectrum Act of 2012, 47 U.S.C. § 1452(b)(5), which explicitly pro-
hibits the FCC from reorganizing television spectrum during the
auction to “alter the spectrum usage rights of low-power television
stations.”
2. Whether by implementing purported mitigation steps that
do not alleviate the harm resulting from loss of spectrum usage rights,
the FCC’s channel sharing decision warrants reversal under the Admin-
istrative Procedure Act’s (“APA”) requirement of rational, record-based
rulemaking. 5 U.S.C. § 706.
3. Whether the FCC’s decision that LPTV licensees must
vacate their channels and shut down when a wireless carrier “com-
mences operations”—and in any event 39 months after the auction—im-
properly reverses the agency’s rule that LPTV stations have a right to
broadcast “secondarily,” i.e., unless they cause actual, harmful inter-
ference to full-power television stations.
4. Whether the FCC’s Regulatory Flexibility Act (“RFA”)
analysis improperly failed to assess the efficacy of or quantify the
impact of channel sharing, or to evaluate alternatives, such that the

3
agency’s analysis violates the obligation to explain how it has “min-
imized” the crushing harm to LPTV stations as small businesses.
5. Whether the agency’s “commencing operations” rule, trig-
gering mandatory LPTV shut-down based on a unilateral notice from a
self-interested wireless carrier without FCC review or appeal rights,
violates due process by delegating regulatory power to private parties.
6. Whether by interpreting the Spectrum Act to require the
sanction of losing LPTV channels (thus stranding investment and
assets) despite the protection of § 1452(b)(5), the FCC impermissibly
applied the Act as an unconstitutional taking of private property and/or
a Bill of Attainder.
STATUTES
The challenged FCC orders, including applicable regulations, are
reprinted in the Joint Appendix. Statutes pertinent to this petition for
review are contained in Addendum A per Circuit Rule 28(a)(5).
STATEMENT OF THE CASE
This is a petition for review of a pair of FCC orders from 2015 that
single out low-power television (“LPTV”) broadcasters for the unprec-

4
edented penalty of being summarily extinguished—losing their chan-
nels and thus being forced to cease operations. These alarming con-
sequences arise not from the directives of the Spectrum Act, 47 U.S.C.
§ 1451 et seq. Rather, they stem from the Commission’s own policy
judgments in fashioning the incentive spectrum auction and, indeed, in
spite of the Act’s express terms to the contrary.
The FCC’s landmark incentive auction, now underway, treats
LPTV licensees grossly unfairly, epitomizing capricious administrative
decision-making. These predominantly small businesses, a large pro-
portion of which are minority and religious-oriented broadcasters, face a
substantial likelihood that their channel spectrum—which will be sold
in the phase three “forward auction” for advanced wireless services or
“repurposed” by the FCC for unlicensed uses like WiFi—will be con-
fiscated by the Commission. Hundreds if not thousands of LPTV broad-
casters will, in the FCC’s vacuous euphemism (not found in the Act
itself), be “displaced” and face “difficulty” finding available channels in
the smaller, “repacked” television bands after the auction concludes.
That is administrative-speak for the fact that “many” LPTV stations
will lose their channels outright without anywhere else to relocate, and

5
thus be forced to go dark, i.e., shut down and stop broadcasting to their
local communities, as a result of the FCC’s disregard for congression-
ally-mandated protections and its pursuit of non-statutory objectives.
In its initial spectrum auction orders in GN Dkt. No. 12-268, the
FCC determined, with only conclusory reasoning, that (1) licensed
LPTV stations’ spectrum rights are completely defeasible by assigning
use of those channels to new cellular/wireless licensees and unlicensed
wireless services the agency wants to promote for policy reasons, and
(2) LPTV licensees’ regulatory requirement not to cause interference
with traditional, full-power broadcasters in the television band justified
leaving their channels unprotected throughout the incentive auction.
The Commission recognized explicitly that this will result in outright
“displacement” of “many” LPTV stations and that few, if any, vacant
channels will be available to LPTV stations after the auction.1
Those decisions were reaffirmed and implemented by the two
subsequent orders under review in this case. First, the FCC ruled in its
Commencing Operations Order (JA __) that LPTV stations must cease
1 Application of 47 U.S.C. § 1452(b)(5) to the initial auction orders is
pending review by this Court in Mako Comms., LLC v. FCC, No. 15-
1264 (D.C. Cir., consolidated).

6
operations and permanently vacate their channels when a wireless
licensee in the relevant portion of the reorganized television spectrum
(the “600 MHz Band”) states that it intends to begin pre-operational
network testing. This cessation requirement is triggered by a unilateral
notice from the private wireless carrier without FCC review or appeal
rights. Second, in its Channel Sharing Order (JA __), the FCC auth-
orized “channel sharing” among LPTV licensees, after the auction, as a
purported means to mitigate the harm inflicted on “displaced” LPTV
broadcasters from loss of their channels—despite a record showing that
this does not offer appreciable, let alone certain, financial or operational
benefit to LPTV licensees and without any assurance of an alternative
channel, with sufficient spectrum, on which to broadcast.
Petitioners Signal Above, LLC (“Signal Above”) and Excellence In
Christian Broadcasting (“EICB”), comprising EICB-TV East, LLC and
EICB-TV West, LLC, own and operate numerous LPTV stations that
face a substantial risk of being impaired or destroyed altogether by the
Commission’s proposed actions. Grace Worship Center, Inc. (“Grace
Worship”), the ministry of Dr. Randall Weiss and Adrienne Weiss,

7
principals of EICB, is the successor-in-interest to International Broad-
casting Network (“IBN”), owner of several LPTV stations. Signal Above,
EICB and Grace Worship (through IBN) each participated as parties in
the Dkt. No. 12-268 proceedings. Joined by Free Access (which holds
options to purchase LPTV stations and actively participated in the
rulemakings) and Word of God Fellowship, Inc. (which owns LPTV
stations and participated through its trade association), Petitioners ask
the Court to reverse or vacate and remand these two orders.
STATEMENT OF FACTS
This case challenges the mistreatment of LPTV stations in the
incentive spectrum auction and reorganization framework promulgated
by the Commission under the Spectrum Act of 2012. Thus, before de-
scribing the FCC’s spectrum auction decisions, we begin with the his-
tory of LPTV stations, the standards for their licensing and rights
under the Communications Act and judicial precedent, and then the
Spectrum Act itself.
A. Low-Power Television (LPTV): An Overview
Low-power television is a broadcast service that provides an im-
portant “source of diverse and local television programming…in rural

8
and remote locations.” Expanding the Economic and Innovation Oppor-
tunities of Spectrum Through Incentive Auctions, 27 FCC Rcd. 12357,
12475 ¶ 358 (2012) (“Incentive Auction NPRM”). In both “rural areas
[and] individual communities within larger urban areas,” LPTV “offers
programming tailored to the interests of viewers in small localized
areas in a less expensive and more flexible way than traditional full-
service/power TV stations.” FCC, Consumer Guide: Low-Power Tele-
vision (LPTV) Service (Nov. 2015).2 LPTV service “has created oppor-
tunities for new entry into television broadcasting [and] provided a
means of local self-expression.” Id.
The FCC established modern LPTV service to meet “large unsat-
isfied demand for television service” in rural and underserved urban
areas, and celebrated LPTV “for assuring enhanced diversity of owner-
ship and of viewpoints in television broadcasting.” Inquiry Into the
Future Role of Low-Power Television Broad. and Television Translators,
82 F.C.C.2d 47, 48, 77 (1980) (“1980 NPRM”).
The FCC reports there are today more than 2,100 licensed LPTV
stations. News Release, Broadcast Station Totals as of June 30, 2016
2 Available at http://fcc.us/2bAKrtx.

9
(July 2016) (http://ht.ly/n4na303m1IH). These stations are typically
small businesses, “provid[ing] substantial first-time ownership oppor-
tunities[.]” Review of the Commission’s Rules Governing the Low Power
Television Service, 9 FCC Rcd. 2555, 2555 (1994).
LPTV service represents more than just additional TV channels.
“In many cases, LPTV stations may be the only television station in an
area providing local news, weather, and public affairs programming.”
Establishment of a Class A Television Service, 15 FCC Rcd. 6355, 6357-
58 (2000). And “[e]ven in some well-served markets, LPTV stations
frequently provide the only “niche” programming, “often locally pro-
duced, to residents of specific ethnic, racial, or special interest com-
munities.” Id. at 6358.3
LPTV stations transmit at lower power levels than full-power
stations. As a result, LPTV typically serves smaller geographic regions
than full-power broadcasting. Yet because LPTV stations “serve much
3 “LPTV stations are operated by diverse groups and organizations—
high school and colleges, churches and religious groups, local govern-
ments, large and small businesses and individual citizens.” FCC Con-
sumer Guide, supra, at 8 & n.2. An estimated 10% of LPTV stations are
owned by persons of Hispanic or Latino ethnicity, and nearly 3.5% are
owned by members of racial minorities. 2014 Quadrennial Regulatory
Review, 29 FCC Rcd. 7835, 7844 (2014).

10
smaller geographic regions than full-service stations,” they “can provide
service to areas where a higher power station cannot be accommodat-
ed.” Amend. of Parts 73 and 74 of the Commission’s Rules to Establish
Rules for Digital Low Power Television and Television Translator
Stations, 19 FCC Rcd. 19331, 19333 (2004). LPTV fills “gaps” in a
region’s spectrum that are too small to accommodate full-power broad-
casters’ larger footprints. Salzer v. FCC, 778 F.2d 869, 872 (D.C. Cir.
1985).
B. Statutory and Regulatory Background
1. LPTV—Regulatory and Legislative History
Initially, LPTV broadcasters “were permitted only to retransmit
the signals of high power stations,” but in 1982 the FCC “authorized
LPTV licensees to originate their own programming.” Id. at 872.
The Commission established LPTV as a service with “secondary”
interference rights compared to full-power broadcasters. “Secondary
status means that low power stations may not create objectionable
interference to full service television stations… A low power station
causing interference to a full service station…must correct the problem
or cease operation.” The Future Role of Low Power Television Broad.

11
and Television Translators, 48 Fed. Reg. 21478, 21478 (1983). Con-
versely, LPTV is subject to relatively lighter regulatory and technical
requirements in order to encourage LPTV owners to quickly begin serv-
ice and operate affordably. 1980 NPRM, 82 F.C.C.2d at 49-50. Over the
years, the Commission and Congress took significant further steps to
incentivize LPTV deployment.4
2. LPTV—Current Regulatory Framework
The FCC’s rules direct an LPTV applicant to “select a channel”
that is not “likely to cause interference” and, until modified by the
Channel Sharing Order at issue in this appeal, prohibited multiple
stations from sharing channels. 47 C.F.R. § 74.702(a). They authorize
the LPTV licensee to select “[a]ny one of the 12 standard VHF Channels
(2 to 13 inclusive)” or “[a]ny one of the UHF Channels, from 14 to 69,
inclusive,” except channel 37. Id. § 74.702(a)(1), (2); id. § 74.786 (limited
channels for digital broadcasting).
4 In 1994 the FCC lowered the standard for LPTV licenses, requiring
only that applications be “substantially complete.” 9 FCC Rcd. at 2555-
57. Later, Congress amended a “firm deadline” for broadcasters moving
to digital technology to cover only full-power stations, not LPTV. Pub. L.
No. 109-171 § 3002(a), 120 Stat. 4, 21 (2006).

12
While LPTV licenses are “secondary” to full-power stations for
interference purposes, they are not “secondary” to the rest of the com-
munications industry. To the contrary, LPTV is primary relative to all
unlicensed services, such as WiFi broadband, “white spaces” services
and other “Part 15” devices (47 C.F.R. § 15.1 et seq.). E.g., Digital
Television Distributed Trans. Sys. Tech., 23 FCC Rcd. 16731, 16743
(2008) (“secondary” television services “warrant priority over those
unlicensed broadband devices”); 47 C.F.R. § 15.5(b) (unlicensed services
prohibited from harmfully interfering with licensed services).
a. The Communications Act
The Communications Act authorizes the FCC to issue licenses in
the public interest. 47 U.S.C. § 307. When a licensee applies for renew-
al, the license remains in effect. Id. § 307(c)(3). A license protects the
operator from harmful interference by unlicensed services: the Act
prohibits “willfully or maliciously interfer[ing] with or caus[ing] inter-
ference to” any station “licensed or authorized” by the FCC. Id. § 333.
The FCC may revoke licenses only under the Act’s procedures,
which safeguard the licensee’s rights and assign burden of proof to the
agency. Id. § 312. Congress left the FCC procedural discretion, but only

13
“so long, of course, as [the Commission] observes the basic requirements
designed for the protection of private as well as public interest.” FCC v.
WJR, The Goodwill Station, 337 U.S. 265, 283 (1949) (quotes omitted).
In light of this legal structure and the FCC’s practical approach to
termination—an extremely rare sanction— broadcast licensees have a
well-established “renewal expectancy.” Peter W. Huber et al., 2 FEDERAL
TELECOM. LAW § 10.3.1 (2d ed. 2015). “[B]oth the Commission and the
courts have recognized that a licensee who has given meritorious serv-
ice has a ‘legitimate renewal expectancy’ that is ‘implicit in the struc-
ture of the Act’ and should not be destroyed absent good cause.” FCC v.
Nat’l Citizens Comm. for Broad. 436 U.S. 775, 805 (1978) (quoting
Greater Boston Tele. Corp. v. FCC, 444 F.2d 841, 854 (D.C. Cir. 1970)).
This renewal expectancy is justified precisely because it dispels
regulatory uncertainty that would impede broadcasting investment,
both access to and cost of capital. “Licensees should be encouraged
through the likelihood of renewal to make investments to ensure qual-
ity service.” Cent. Fla. Enter., Inc. v. FCC, 683 F.2d 503, 507 (D.C. Cir.
1982). Congress codified the renewal expectancy in 1996. 47 U.S.C.
§ 309(k).

14
b. The Spectrum Act
In 2012 Congress passed the Spectrum Act, specifying a three-
phase process for the FCC to reclaim spectrum voluntarily from broad-
casters and make it available for new uses. Pub. L. No. 112-96, Tit. VI,
§§ 6401-6414, 126 Stat. 156, 222-37 (2012). The Act mandates an app-
roach comprising (i) a “reverse auction” to incentivize broadcasters to
sell their spectrum rights back to the FCC; (ii) a “reorganization” of
broadcast spectrum to reallocate portions of that band and reassign
channels; and (iii) a “forward auction” to grant new licenses within the
reorganized television band.
i. Reverse Auction
Congress directed the FCC to conduct a reverse auction to deter-
mine the compensation each “broadcast television licensee” would
accept “in return for voluntarily relinquishing some or all of its broad-
cast television spectrum usage rights[.]” 47 U.S.C. § 1452(a)(1). “Broad-
cast television licensee” is a new term: the Spectrum Act defines it as
either “a full-power television station” or a “low-power television station
that has been accorded primary status as a Class A television licensee

15
under [FCC regulations].” Id. § 1401(6). Participation in the forward
auction is voluntary. Id. § 1452(a)(1).
ii. Reorganization
Next, “[f]or purposes of making available spectrum to carry out
the forward auction[,]” the Act directs the FCC to “evaluate the
broadcast television spectrum (including spectrum made available
through the reverse auction…).” Id. § 1452(b)(1)(A). It empowers the
FCC to “make such reassignments of television channels as the Com-
mission considers appropriate” and “reallocate such portions of the
spectrum as the Commission determines are available for reallocation.”
Id. § 1452(b)(1)(B)(i)-(ii). Those directives are stated in the broader
terms of “television channels” and “spectrum,” not the new phrase
“broadcast television licensee.” Id. § 1452(b)(1). The reorganization is
directed to the entire television spectrum band, where LPTV is the
other longstanding resident, not merely the channels assigned to full-
power and Class A stations.
The spectrum reorganization is subject to specific limits. Several
pertain only to “broadcast television licensees,” but another applies
expressly to LPTV. In determining channel reassignments, the FCC

16
“shall make all reasonable efforts to preserve…the coverage area and
population served of each broadcast television licensee….” Id.
§ 1452(b)(2); see NAB, 789 F.3d at 170-76. Second, the Act forbids the
FCC from “involuntarily reassign[ing]” a broadcast television licensee
from, inter alia, a UHF channel to a VHF channel. 47 U.S.C.
§ 1452(b)(3). And third, the Act directs the FCC to “reimburse costs
reasonably incurred by” broadcast television licensees reassigned to
new channels. Id. § 1452(b)(4)(A).
But LPTV stations did not go unprotected. Congress gave LPTV
stations their own specific protection in the reorganization process:
LOW-POWER TELEVISION USAGE RIGHTS.—Nothing in
this subsection [i.e., 47 U.S.C. § 1452(b)] shall be
construed to alter the spectrum usage rights of low-
power television stations.
Id. § 1452(b)(5).
iii. Forward Auction
As its third phase, the Spectrum Act directs the FCC to then
“conduct a forward auction” to “assign[] licenses for the use of the spec-
trum that the Commission reallocates under [the reorganization sub-
section].” Id. § 1452(c)(1)(A). If the proceeds from this auction do not

17
cover money owed to licensees in the reverse auction phase, plus admin-
istrative costs and relocation reimbursements, the forward auction is
cancelled and the spectrum reorganization authorized for phase two
may not occur. Id. § 1452(c)(2).
C. The FCC’s Initial Spectrum Auction Orders
Six months after the 2012 Act, the FCC issued an NPRM to carry
out the incentive auction. Expanding the Economic and Innovation
Opportunities of Spectrum Through Incentive Auctions, GN Dkt. No. 12-
268, 27 FCC Rcd. 12357 (2012) (“Incentive Auction NPRM”). In 2014,
the Commission adopted the proposals from that Notice, largely un-
modified. Expanding the Economic and Innovation Opportunities of
Spectrum Through Incentive Auctions, GN Dkt. No. 12-268, 29 FCC
Rcd. 6567 (2014) (“Incentive Auction R&O”).
1. Reverse Auction
The Incentive Auction NPRM asserts that “[t]he Spectrum Act
makes full power and Class A broadcast television licensees eligible to
participate in the reverse auction, but not low power television sta-
tions.” 27 FCC Rcd. at 12380 ¶ 73 (footnotes omitted). Near the end of
its Notice, however, the FCC observed that “the Commission could allow

18
low power television stations to participate in the reverse auction,” but
believed this “would have no practical use” in light its view that LPTV
stations “do not have to be protected in” the subsequent spectrum
reorganization. Id. at 12539 (App. B) ¶ 71 (emphasis added).
Ultimately, the Commission decided not to include LPTV in the
reverse auction phase, reasoning simply that “the Act extends reverse
auction eligibility to…licensees of full power and Class A stations….
Licensees of [LPTV and TV translator stations] will not be eligible to
participate in the reverse auction.” Incentive Auction R&O, 29 FCC Rcd.
at 6716 ¶ 352.
2. “Repacking”
The FCC’s proposal characterized as “repacking” the Spectrum
Act’s second-phase framework for “reorganizing the broadcast television
bands” so that stations remaining on the air after the auction “occupy a
smaller portion of the UHF band, allowing the Commission to recon-
figure a portion of [that] band into contiguous blocks of spectrum
suitable for flexible use.” 27 FCC Rcd. at 12387 ¶ 91.
The FCC stated that this spectrum reorganization needed to
satisfy the Act’s requirement to “preserve” the geographic coverage area

19
of broadcast television licensees, id. at 12390 ¶ 98, and nothing more.
The FCC concluded that the Act allowed it to exclude LPTV stations
outright from “repacking.” Id. (“we interpret [§ 1452(b)(2)] to apply to
full power and Class A television stations only”); id. at 12399 ¶ 118 (“we
do not propose to extend protection in the repacking process” to LPTV).
With respect to this so-called “repacking” phase, in its resulting
2014 order the Commission identified “which broadcast facilities we
must make all reasonable efforts to preserve in the repacking process,
as well as those we elect to protect as a matter of discretion.” Incentive
Auction R&O, 29 FCC Rcd. at 6651 ¶ 183. The FCC included LPTV sta-
tions in neither category, asserting simply that “[p]rotection of LPTV
and TV translator stations in the repacking process is not mandated” by
the Spectrum Act. Id. at 6673 ¶ 238. The Commission “decline[d] to ex-
tend repacking protection to these stations,” because it deemed the loss
of LPTV to be “outweighed by the detrimental impact that protecting
LPTV…stations would have on the repacking process and on the suc-
cess of the incentive auction.” Id. at 6673 ¶ 237; id. at 6576 ¶ 21 (in-
cluding LPTV would “undermine the likelihood of meeting our object-
ives for the incentive auction”).

20
The FCC did not further elaborate on what such “detrimental
impact” and “constraints” might be, or what, in the agency’s view,
constitute “success” and “objectives” of the incentive auction. Later, the
FCC transmuted one of the orders challenged here into a non-existent
congressional command, i.e., “Congress’s decision that LPTV and trans-
lators are not to be protected in the repack.”5
3. Forward Auction
The FCC proposed to create “a band plan from relinquished broad-
cast spectrum usage rights,” which it terms the “600 MHz Band,” and to
“repurpose” this new spectrum for fixed and mobile broadband. Incen-
tive Auction NPRM, 27 FCC Rcd. at 12401 ¶¶ 123, 125. Despite its rec-
ognition that it “will not know in advance the amount of spectrum we
can make available in the forward auction,” id. at 12401 ¶ 123, the FCC
proposed a nationwide broadband downlink band while “allowing var-
iations in the amount of uplink spectrum available in any geographic
area.” Id. at 12401 ¶ 124. In its 2014 order, the FCC adopted that
proposed 600 MHz Band plan, in which spectrum for wireless broad-
band and other unlicensed uses begins at channel 51 (698 MHz) and
5 JA ___ (Channel Sharing Order ¶ 43 (emphasis added)).

21
ranges to lower channel numbers, toward channel 37, as necessary. 29
FCC Rcd. at 6585 ¶ 45.
4. Treatment of LPTV
In a section titled “Post Auction Issues,” 27 FCC Rcd. at 12458
¶ 307, the NPRM reiterated that LPTV stations would be excluded not
just from the reverse auction but also, despite § 1452(b)(5), from the
“repacking” process. This exposes LPTV stations to the risk of losing
their channels. The Commission’s reasoning was based on a modified
view of LPTV’s “secondary” status:
Because low power television [has] only secondary inter-
ference protection, we propose…that full power and Class A
television stations will be assigned new channels in the broad-
cast television spectrum reorganization without regard to
whether such channel assignments…would interfere with
existing [LPTV] facilities. Where such interference exists, or
where an existing [LPTV] station would cause interference to
a repacked “primary” status station, the [LPTV] station will
be “displaced” and will either have to relocate to a new chan-
nel that does not cause interference or else discontinue
operations altogether. Only a limited number of available
channels may exist following the repacking process, limiting
the relocation options available to displaced [LPTV] stations.
Id. at 12475 ¶ 358.
Having proposed to bar LPTV stations from the “repack” and the
auction, the FCC stated that such stations could seek a remedy only

22
after the forward auction closes (after money changes hands and all
other broadcasters and wireless licensees are accommodated) in what it
calls a “displacement” process. Id. at 12475-76 ¶¶ 358-61. While Cong-
ress did not use the terms “displace,” or “displacement,” the FCC em-
ployed them to describe the situation in which LPTV stations, forced to
vacate their licensed channels due to the FCC’s “repack” and forward
auction, would need to (a) somehow locate, obtain and receive express
FCC approval for new channel assignments, or (b) simply shut down.
The Commission invited comment on alternatives for displaced
LPTV stations (including “channel sharing”) and the circumstances in
which LPTV stations could file post-auction “displacement applica-
tions.” Id. at 12475-76 ¶ 359. Recognizing that scarce post-auction
spectrum would leave many LPTV stations vying for too few remaining
channels, the FCC also asked how to choose among “displaced” lic-
ensees. Id. at 12476 ¶ 361.
The Commission adopted its negative treatment of LPTV stations,
determining that to include them in the so-called repack “would in-
crease the number of constraints on the repacking process significantly,
and severely limit our recovery of spectrum to carry out the forward

23
auction, thereby frustrating the purposes of the Spectrum Act.” Incen-
tive Auction R&O, 27 FCC Rcd. at 6674 ¶ 241. The FCC justified it
position with the assertion that although LPTV station operators “have
made investments in their facilities, they have done so with explicit, full
and clear prior notice that operation in [the LPTV service] entails the
risk of displacement.” Id.
The order likewise refused to include LPTV stations in the spec-
trum “repacking” phase of the auction despite the Spectrum Act’s
express protection of 47 U.S.C. § 1452(b)(5). Responding to comments,
the FCC stated that “[t]his provision simply clarifies the meaning and
scope of [§ 1452]; it does not limit the Commission’s spectrum manage-
ment authority.” Id. at 6673 ¶ 239.
“In any case,” the FCC added, “our decision not to protect LPTV…
stations when we repack full power television stations does not ‘alter’
their spectrum usage rights,” because LPTV stations “are secondary to
full power television stations.” Id. The Commission did not explain how
LPTV’s “secondary” status for interference purposes justified the FCC
eliminating LPTV licensees’ channels. Nor did the FCC explain why the
so-called “displacement” of many LPTV stations, for the benefit of new

24
licensed 600 MHz Band wireless and unlicensed broadband services,
was not an alteration of their spectrum usage rights.
The FCC described how LPTV stations frozen out of the reverse
auction and “repack” would be treated in that “displacement” process.
The agency declared it would “open a filing window allowing displaced
LPTV…stations to submit displacement applications after the repack-
ing process becomes effective.” Id. at 6834 ¶ 656. But that LPTV filing
window opens only “after primary stations relocating to new channels
have submitted their construction permit applications and have had an
opportunity to request alternate channels.” Id. at 6834-35 ¶¶ 657.
The FCC summarily rejected the argument—advanced by Free
Access, EICB-TV East, EICB-TV West and IBN, predecessor-in-interest
to Petitioner Grace Worship—that its actions constituted a “taking” of
LPTV stations’ assets under the Fifth Amendment. Id. at 6674 ¶ 240 &
n.743. The order announced the FCC’s plan to initiate rulemakings “to
consider additional measures that may help alleviate the consequences
of LPTV…station displacements.” Id. at 6838 ¶ 664. (One of these, the
Channel Sharing Order, is a subject of this appeal.) The order also

25
stated that the Commission “will explore ways of maximizing the num-
ber of channels” available to LPTV “in the remaining [i.e., post-‘repack’]
television bands.” Id. at 6839 ¶ 666. To date, the FCC has not made a
proposal or sought comment on this topic, which is (for obvious reasons)
vitally important to LPTV broadcasting.
5. Regulatory Flexibility Analysis
The Incentive Auction R&O included the Commission’s Final
Regulatory Flexibility Analysis (“FRFA”) pursuant to 5 U.S.C. § 603.
The FRFA again observed that LPTV stations “may be impacted by
repacking” and that “[m]any of these stations may be displaced from
their current operating channel.” Id. at 6948 (App. B) ¶ 9. Yet the
Commission included no modeling or data analysis of the financial,
regulatory and administrative impact of “displacement” on LPTV
stations.
Indeed, FCC Chairman Wheeler later conceded in 2015 that “we
have not systematically analyzed the potential displacement impact on
[LPTV] stations” and that LPTV stations have not been included in the

26
FCC’s “auction simulations or repacking analyses.”6 Nonetheless, the
Commission stated that it “understands the potential impact of the in-
centive auction on LPTV…stations, among others, and will take steps to
mitigate such impact.” 29 FCC Rcd. at 6964 (App. B) ¶ 56. Those pro-
posals were released several months later in a new NPRM, which led to
one of the two orders at issue in this appeal.
D. The Commencing Operations Order
The Incentive Auction R&O determined that “secondary users,”
including LPTV stations, “must vacate” the 600 MHz Band once the
new wireless licensee “commences operations” in its licensed 600 MHz
spectrum. 29 FCC Rcd. at 6833-47, ¶¶ 655-88. The Commission did not
define the term “commence operations,” but stated it would do so as
part of the pre-auction process. Id. ¶ 668 n.1861.
In 2015, the FCC adopted another order in Dkt. No. 12-268 which
specified that “a 600 MHz Band wireless licensee commences operations
when it conducts site commissioning tests.” JA __ ¶ 1 (“Commencing
Operations Order”). This order specifically directed that “LPTV stations
6 JA ___ [Free Access, Notice of Ex Parte Presentations at 2 & Attch. C
(Nov. 25, 2015) (letter of Chairman Wheeler to Rep. Bilirakis)].

27
in the 600 MHz Band may continue to operate…unless they are in an
area in which a 600 MHz Band wireless licensee provides advance
written notice [directly to the LPTV licensee] that it intends to commence
operations and that the LPTV station is likely to cause harmful inter-
ference to the 600 MHz Band wireless licensee’s operations in that
area.” Id. ¶ 3 (emphasis added). Such notifications of intent and “likely”
interference—an undefined term—are to be based on application of by
the new licensee of the Commission’s interference-predicting param-
eters, JA __ ¶ 3 n.6 (citing Incentive Auction R&O, 29 FCC Rcd at 6840,
¶ 668 n.1862), but are otherwise entirely unilateral. 47 C.F.R.
§ 73.3700(g)(4).
The Commencing Operations Order has no provision for filing of a
pre-commencement notice of intent with or approval by the FCC, for
challenge to or administrative appeal of such a notice by an affected
LPTV licensee, nor for agency or even engineering confirmation of
whether the predicted “likely” interference materializes. On receipt of
such a notice, the LPTV station must immediately cease operations as
of the date the wireless carrier intends to begin pre-operational testing,

28
whether or not there is any actual, real-world interference. Id.
§ 73.3700(g)(4)(iii).
The FCC reasoned that LPTV stations must be required to cease
operations when the new wireless carrier begins “site activation and
commissioning tests using permanent base station equipment” because
it is “at this juncture that a wireless licensee…needs unfettered access
to its licensed spectrum to optimize its network in advance of launching
commercial service.” JA __ ¶ 7 (codified at 47 C.F.R. § 27.4). It asserted
that the rule “balances the policy goal of providing an orderly transition
process for secondary and unlicensed users in the band with that of
providing 600 MHz Band wireless licensees with exclusive access to
their spectrum as soon as they are ready to deploy wireless service in
the band.” Id. ¶ 7.
The FCC explained that, in its view, requiring immediate ces-
sation of LPTV operations at that point “minimize[s], to the extent
possible, the time between cessation of secondary and unlicensed use
and initiation of commercial wireless service,” thus “tak[ing] the inter-
ests of secondary and unlicensed users into account.” Id. ¶ 9. Yet under
the revised rule, an LPTV station must vacate the licensed spectrum it

29
has been using regardless of whether it is able to identify another,
available channel in the post-auction reorganized television band or
whether, in the rare circumstance in which such a channel actually
exists, the LPTV owner’s post-auction “displacement application” has
been processed and approved by the FCC.
The Commission did not expound on how this took the interests of
LPTV stations into account or why establishing an earlier deadline for
their mandatory removal from previously assigned channels was con-
sistent with the requirement of § 1452(b)(5) that the FCC not “alter the
spectrum usage rights” of LPTV stations. Indeed, the FCC concluded
that “[n]othing in the transition framework we adopted in the Incentive
Auction R&O, or the decisions reached in this Report and Order, is
inconsistent with the Spectrum Act,” JA __ ¶ 13, without discussing or
citing § 1452(b)(5).
E. The Channel Sharing Order
Later in 2015, after soliciting comment by way of Public Notice,
the FCC adopted another order, which Petitioners also challenge. The
Channel Sharing Order (a) extends the deadline for transition of LPTV
stations from analog to digital technology, and (b) authorizes LPTV and

30
TV translator licensees to cohabitate a single, post-auction, six MHz
wide TV channel each licensee previously held exclusively. JA __, __.
That order yet again recognizes the ruinous impact the spectrum
auction rules will have on LPTV: “the auction will potentially displace a
significant number of LPTV…stations,” id. ¶ 2; many displaced stations
will “have difficulty finding available channels,” JA __ ¶ 21. Yet the
FCC stood by its decision to exclude LPTV from the spectrum reorg-
anization Id. ¶ 20 n.55.
The Channel Sharing Order explained that despite the FCC’s
“lack of knowledge of the actual impact of the auction and the post-
auction transition process on” LPTV, JA __ ¶ 10, the Commission
wanted to “mitigate the potential impact” of the auction “and the
repacking process on LPTV” stations “and to help preserve the import-
ant services they provide.” id. ¶ 1. The FCC found that “permitting
channel sharing has the potential to be greatly beneficial to the low
power television community,” id. ¶ 21, but did not attempt to quantify
the extent, scope or financial advantages of such sharing. Indeed, the
FCC rejected unrefuted record evidence that channel sharing offered

31
few or no cognizable benefits to LPTV stations. JA __ ¶ 24 n.74. The
FCC concluded only that:
Although some commenters question the potential benefits
of channel sharing for LPTV and TV translator stations, we
believe that it may be a useful option for some LPTV and TV
translator stations to pursue. Channel sharing may not be
right for all such stations, but the possibility that it may be a
useful arrangement for some stations justifies our adoption of
new rules today.
Id. ¶ 24 (emphasis added, footnote omitted). The Commission did not
further expand on its commitment, from the initial 2014 auction order,
to “alleviate the consequences of LPTV…station displacements.” Incent-
ive Auction R&O, 29 FCC Rcd. at 6838 ¶ 664.
Nonetheless, in another Final Regulatory Flexibility Analysis
accompanying the Channel Sharing Order, the FCC asserted to the
contrary that its “decision to allow LPTV and TV Translator [sic] to
share channels between themselves will greatly minimize the impact on
small entities.” JA __, App. C ¶ 16 (emphasis added). “Many stations
will be displaced by the incentive auction reorganization of spectrum
and allowing these stations to channel share will reduce the cost of
having to build a new facility to replace the one that was displaced.” Id.
The FCC did not quantify the number or proportion of LPTV stations

32
expected to utilize or benefit from channel sharing, the availability of
post-auction channels for sharing in the reorganized television spect-
rum, or the relative financial advantages (as either a cost or capital
investment matter) of channel sharing by LPTV licensees. Nor did the
FCC explain why such quantification was impossible or impracticable.
SUMMARY OF ARGUMENT
The twin orders challenged in this case represent a cruel and
arbitrary FCC game of spectral musical chairs. Despite the settled
renewal expectancy and explicit statutory protection of their spectrum
usage rights, “many” LPTV licensees will be forced to shut down be-
cause the Commission has neither included LPTV in its phase two tele-
vision band spectrum reorganization nor assured that “displaced” LPTV
stations have an alternative channel on which to continue broadcasting.
The Commission’s steps to “mitigate” that virtually certain harm do
nothing at all to alleviate the loss of licensed spectrum on which to
televise.
These decisions are unlawful for several different reasons. First,
the FCC ignored the plain command of 47 U.S.C. § 1452(b)(5) not to

33
“alter” LPTV’s “spectrum usage rights” in its television band reorgan-
ization, and indeed offered no interpretation of this provision. That
LPTV service has always been treated as “secondary” for interference
purpose to full-power stations means under § 1452(b)(5) that this LPTV
right to broadcast absent such harmful interference must remain intact
following the auction’s reorganization phase.
Second, the Commission violated the APA standard for rational
rulemaking because the record is uncontroverted that channel sharing
will not avoid disruptions in service, and the agency’s finding that
sharing may “possibly” help “some” LPTV stations was based on no
record data, analysis or substantiated projection.
Third, the FCC acted arbitrarily and capriciously in reversing its
long-standing rule authorizing LPTV licensees to broadcast “second-
arily”—requiring LPTV to cease operations nationwide in the reorg-
anized 600 MHz Band when a wireless carrier “commences operations,”
regardless of actual interference, and even if that spectrum is never
used—without either acknowledging or explaining this untoward
change.

34
Fourth, the orders violate the Regulatory Flexibility Act by
(a) failing to quantify the significant adverse economic impact of the
new rules on LPTV owners as small business entities, and (b) taking no
steps to “minimize” that impact other than falsely asserting, in flat
contradiction to the FCC’s rationale, that channel sharing “will greatly
minimize” the impact of so-called “displacement” on LPTV licensees.
The agency is at best simply guessing and at worst consciously
avoiding reality. Neither is consistent its APA rulemaking respons-
ibilities, the RFA, or Chevron’s settled test for agency statutory con-
struction. The Commission’s actions, in addition, raise serious, un-
settled and complex constitutional issues as an arguable Fifth Amend-
ment taking of private property, an impermissible delegation of reg-
ulatory power to private parties in violation of due process, and an
agency-imposed Bill of Attainder that singles out and punishes LPTV
owners with the unprecedented sanction of losing all their assets and
investment. This Court may and should avoid deciding them—thus
sparing the federal courts from a host of future LPTV cases asserting
constitutional challenges—by applying § 1452(b)(5) consistent with its
plain meaning.

35
STANDING
“[D]irectly regulated parties,” such as LPTV stations, “are the
most natural challengers” for the rules that govern their conduct. Shays
v. FEC, 414 F.3d 76, 94 (D.C. Cir. 2005). Such parties generally have
standing, since when a party “is himself an object of the action” at issue,
“there is ordinarily little question that the action” has “caused him
injury, and that a judgment preventing” the action “will redress it.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992).
Four of the Petitioners here (Signal Above, EICB-TV East, EICB-
TV West and Grace Worship) own and operate LPTV stations that face
a substantial risk of being impaired or destroyed by the Commission’s
decisions, and thus satisfy all Article III and prudential standing
criteria. Signal Above, EICB and Grace Worship (through predecessor
IBN) each participated below in the agency proceedings, thus complying
with the Hobbs Act jurisdictional requirement that allows judicial
review by a “party aggrieved.” 28 U.S.C. § 2344; Simmons v. ICC, 716
F.2d 40, 42 (D.C. Cir. 1983).

36
ARGUMENT
I. THE FCC’S ORDERS VIOLATE THE SPECTRUM ACT’S
EXPRESS PROHIBITION AGAINST “ALTER[ING] THE
SPECTRUM USAGE RIGHTS OF LOW-POWER
TELEVISION STATIONS”
The Spectrum Act prohibits the FCC, in carrying out the broad-
cast spectrum auction, from reassigning channels or reallocating
spectrum in a manner that would “alter the spectrum usage rights of
low-power television stations.” 47 U.S.C. § 1452(b)(5). Yet the chal-
lenged FCC orders will, by the Commission’s own admission, completely
extinguish many LPTV stations. See, e.g., Channel Sharing Order ¶¶ 2,
20, 21.
To adopt such a policy despite the Act’s express prohibition re-
quires the FCC to ignore the Act’s plain language and instead adopt an
unreasonable statutory construction: one that that renders the statute
devoid of substantive content; that ignores the specific structure Con-
gress established for each of the spectrum auction’s three stages; and
that conflicts directly with the “secondary” broadcasting rights long
enjoyed by LPTV licensees.
The Court should apply Chevron’s familiar framework, Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

37
(1984), and give the statute its natural meaning. It should require the
FCC to include LPTV stations in the reorganization process before the
existing spectrum is sold in the forward auction to new licensees. The
FCC should not be allowed simply to declare LPTV stations’ spectrum
“vacant” and auction it for new licensed wireless services while denying
LPTV even “secondary” non-interfering use of that spectrum, or to
assign it for new unlicensed uses which, under established precedent,
enjoy no priority over licensed LPTV services.
A. The FCC’s orders contravene the Spectrum Act’s
unambiguous prohibition
The Spectrum Act’s explicit protection of LPTV stations’ spectrum
usage rights forecloses the FCC’s actions. Because “Congress has direct-
ly spoken to the precise question at issue…that is the end of the matter;
for the court, as well as the agency, must give effect to the unambig-
uously expressed intent of Congress.” Chevron, 467 U.S. at 842-43.
“In this first analytical step, the courts use traditional tools of
statutory interpretation—text, structure, purpose, and legislative
history.” Citizens Coal Council v. Norton, 330 F.3d 478, 481 (D.C. Cir.
2003) (quotations omitted). The Court must “begin, as always, with the
plain language of the statute in question.” Id. at 482.

38
1. Plain Language
The “spectrum usage rights” protected by § 1452(b)(5) of the Spect-
rum Act are the substantive and procedural rights accorded LPTV sta-
tions under the Communications Act. All licensed services, including
LPTV, are guaranteed protection against harmful interference from
unlicensed uses. 47 U.S.C. § 333; 47 C.F.R. § 15.5(b)-(c). This includes
the unlicensed services for whose benefit, in part, the FCC now seeks to
displace LPTV licensees.7
As to their procedural rights, LPTV stations are entitled by stat-
ute to continue operations so long as their licenses are in effect; and
although the FCC assuredly does have power to revoke a license, it may
make such revocations only pursuant to the procedures prescribed by
Congress. 47 U.S.C. § 312. Congress requires the Commission to allow
the licensee an opportunity to show cause why the license should not be
7 In the reverse auction phase, the Act allows broadcasters voluntarily
to sell their “broadcast television spectrum usage rights” back to the
FCC. 47 U.S.C. § 1452(a)(1). Accordingly, although the Act does not
define “spectrum usage rights,” it is evident that the LPTV “spectrum
usage rights” ensured by § 1542(b)(5) are qualitatively the same as
those full-power stations may relinquish in the auction. The only
question is whether, as broadcasters with “secondary” interference
protection, LPTV stations’ spectrum usage rights may be reduced or
modified (i.e. “altered”) without any showing of interference.

39
revoked and puts the burden of proof on the agency. Id. §§ 312(c), (d).
And Congress expressly subjects revocation actions to the APA’s
requirements. Id. § 312(e) (incorporating 5 U.S.C. § 558(c)).
On their face, the FCC’s orders abridge these rights. The Com-
mission decided that LPTV stations can be required to cease operations
and vacate their channels for new licensed wireless carriers whether or
not their operations cause actual, harmful interference, and developed a
tightly-packed 600 MHz Band Plan—even before implementing the
phase two spectrum reorganization—to achieve that result. While the
law gives LPTV stations priority over unlicensed services, 47 C.F.R.
§ 15.5(b)-(c), the FCC’s auction framework reverses this system, forcing
LPTV stations to shut down in order to make “more spectrum available
for mobile broadband use.” Incentive Auction R&O, 29 FCC Rcd. at 6570
¶ 1; id. at 6949 (App. B) ¶ 11 (“In addition to repurposing UHF spect-
rum for new licensed uses, the Commission makes a significant amount
of spectrum available for unlicensed use.”). And the FCC’s decisions
summarily extinguish LPTV licenses without the process set in the
Communications Act, which the Spectrum Act did not repeal or modify.

40
2. Structure
The Act’s structure reinforces its plain meaning. Specifically,
where Congress intended to exclude LPTV stations from a particular
provision of the auction processes, it did so explicitly, by limiting pro-
tection to “broadcast television licensees”—a new term that encomp-
asses only full-power and Class A stations, but not ordinary LPTV
stations. 47 U.S.C. § 1401(6). When Congress intended a provision to
cover only these “broadcast television licensees,” it said so. E.g., id.
§ 1452(b)(4) (reimbursement of broadcast television licensees’ relocation
costs).
But the Act’s spectrum reorganization provision, § 1452(b), is not
written in such limited terms. Instead of confining itself to “broadcast
television licensees,” the reorganization subsection speaks of reassign-
ing “television channels” and reallocating portions of “spectrum.” Id.
§ 1452(b)(1) (emphases added). Had Congress intended to exclude LPTV
stations from the reorganization (termed “repack” by the FCC), it could
easily have done so by omitting the explicit protection for LPTV stations
and covering only “reassignments of television channels to broadcast
television licensees.” But Congress chose not to confine the § 1452(b)

41
spectrum reorganization so narrowly. Where, as here, “Congress in-
cludes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclus-
ion.” Russello v. United States, 464 U.S. 16, 23 (1983) (citations
omitted).
The Act’s intent to protect LPTV stations by including them in the
auction’s spectrum reorganization phase is consistent with its structure.
Congress fashioned the auction with three stages: the reverse auction,
spectrum reorganization, and forward auction. The first phase, the
reverse auction, is to “determine the amount of compensation that each
broadcast television licensee would accept in return for voluntarily
relinquishing some or all of its broadcast spectrum usage rights[.]” 47
U.S.C. § 1452(a)(1). The second step directs the FCC “evaluate the
broadcast television spectrum,” including “spectrum made available
through the reverse auction,” in order to conduct a “reorganization of
broadcast TV spectrum,” while not “alter[ing] the spectrum usage rights
of low-power television stations.” Id. § 1452(b). Then, only in light of the
reverse auction and reorganization, may the FCC carry out the forward

42
auction of new, “flexible-use” licenses for the newly available spectrum.
Id. § 1452(c).
The FCC nominally recognizes that “[e]ach of the three pieces
presents a distinct policy, auction design, implementation and other
issues, and the statute in a number of cases imposes specific require-
ments for each piece.” Incentive Auction NPRM, 27 FCC Rcd. at 12359
¶ 5. Yet here the FCC ignored that point, assuming that (i) Congress’s
exclusion of LPTV stations from the reverse auction required that LPTV
also be excluded from the reorganization, Incentive Auction R&O, 29
FCC Rcd. at 6673 ¶ 238, and (ii) the Commission is empowered under
the Act to dictate cessation of LPTV services, post-auction, once a wire-
less carrier in the 600 MHz Band commences pre-operational network
testing, without regard to actual interference.
But Section 1452(a)’s reverse auction and Section 1452(b)’s reorg-
anization are separate statutory provisions with distinct terms, struc-
tures, and purposes. Congress gave LPTV stations few protections in
the reverse auction but express, emphatic protection in the spectrum
reorganization. The FCC offers no interpretation of § 1452(b)(5);
instead, it asserts cursorily that § 1452(b)(5) is not a limit on the

43
agency’s authority, rather mere interpretive guide. See supra at 23.
Having provided no construction (let alone a reasonable interpretation)
to which Chevron warrants deference, the FCC’s disregard for the
Spectrum Act’s protection of LPTV cannot be affirmed.
3. Legislative History
Congress’s protection of LPTV is consistent with its history of
encouraging LPTV service and the significant capital investments
required by LPTV broadcasters. The express protection of LPTV
stations in 47 U.S.C. § 1425(b)(5) was not elaborated in the legislative
history of the Spectrum Act. But the absence of history weighs in favor
of the clause’s plain meaning, not against it. It is “virtually incon-
ceivable that Congress would have” enacted a sharp break from the
longstanding spectrum usage rights of LPTG licensees “without any
discussion in the legislative history of the Act.” Finnegan v. Leu, 456
U.S. 431, 441 n.12 (1982). As this Court has pointedly observed,
“Congress does not hide elephants in mouseholes.” ABA v. FTC, 430
F.3d 457, 467 (D.C. Cir. 2005) (alterations and quotation marks
omitted).

44
B. Even if the Spectrum Act’s prohibition were
ambiguous, the FCC’s interpretation would be
unreasonable
Even if the Spectrum Act’s LPTV provision were ambiguous, the
FCC’s interpretation is still unreasonable, hence unlawful under Chev-
ron’s step two, because it is “manifestly contrary to the statute.”
Chevron, 467 U.S. at 844.
The FCC’s purported interpretation is unreasonable because it
renders the LPTV protection provision meaningless. The FCC declared,
without explanation, that § 1452(b)(5) is nothing more than a rule of
statutory construction that “simply clarifies the meaning and scope of
[§ 1452(b)].” Incentive Auction R&O, 29 FCC Rcd. at 6673 ¶ 239. The
FCC’s approach is not an interpretation so much as the absence of an
interpretation, for it never explains how the language of § 1452(b)(5)
affects the “meaning and scope” of the Act.
This violates the “cardinal principle of statutory construction that
courts must give effect, if possible, to every clause and word of a stat-
ute.” Williams v. Taylor, 529 U.S. 362, 404 (2000). The LPTV protection
provision “cannot be regarded as mere surplusage; it means something.”
Ratzlaf v. United States, 510 U.S. 135, 141 (1994) (quoting Potter v.

45
United States, 155 U.S. 438, 446 (1894)). The FCC’s assertion to the
contrary is unreasonable.
There is one simple, reasonable interpretation of § 1452(b)(5) the
Commission conspicuously avoids discussing. That is, LPTV’s “spectrum
usage rights” must be preserved by ensuring in the spectrum reorgan-
ization phase that “displaced” LPTV stations have an alternative, post-
auction channel available on which to operate. See, e.g., JA __ (Com-
ments of Signal Above, GN Dkt. No. 12-268, at 2 (March 12, 2013))
(“Any repacking plan that leaves low-power television licensees without
a station, no matter how congested a market, would cause a low-power
television station to suffer the ultimate ‘alteration’ of its spectrum
usage rights.”). That LPTV service has historically been treated as
“secondary” for interference purpose to full-power TV, and arguendo
also to new wireless services authorized for the 600 MHZ Band, means
under § 1452(b)(5) that a station’s right to broadcast absent such harm-
ful interference must remain intact following the action.
Consequently, the FCC’s non-interpretation of § 1452(b)(5) is fatal
to defense of the Commencing Operations Order, which (i) is improperly

46
based on predicted “likely” (not actual) interference with wireless lice-
nsees, and (ii) requires LPTV stations to cease broadcasting by a date
certain (i.e., 39 months after the forward auction) whether or not there
is any likely or actual interference with a new 600 MHz wireless
provider. Under any construction of § 1452(b)(5), it is impossible to
conclude that by precluding “alteration” of LPTV’s spectrum usage
rights, Congress intended the Commission to authorize new services as
exclusive licensees of the former television spectrum while forcing exist-
ing LPTV stations to go dark without, at the very least, evidence of real-
world, harmful interference and an alternative channel on which to
continue broadcasting.
II. THE FCC’S UNLAWFUL ORDERS ARE ARBITRARY AND
CAPRICIOUS
By implementing purported mitigation steps that do not at all
alleviate the harm resulting from loss of LPTV stations’ spectrum usage
rights, the FCC’s Channel Sharing Order warrants reversal under the
APA’s requirement of rational, record-based agency rulemaking. Its
Commencing Operations Order likewise fails the standards for judicial
review of agency action because the FCC reversed the settled rule on
“secondary” licensee rights with no explanation.

47
An agency’s choices must be supported by substantial record
evidence and a rational explanation for reversal of policies. An agency is
required to “examine the relevant data and articulate a satisfactory
explanation for its action.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). The APA’s “requirement that
an agency provide reasoned explanation for its action” compels the FCC
to “display awareness that it is changing position. An agency may
not…depart from a prior policy sub silentio.” FCC v. Fox Tele. Stations,
Inc., 556 U.S. 502, 515 (2009) (emphasis in original).
The Commission failed to satisfy any of these tests in the chal-
lenged orders. First, the Commission’s claim that channel sharing and
delaying the digital conversion deadline for LPTV stations “mitigate the
impact of the auction and repacking process on LPTV,” JA __ ¶ 3, find
no support. To the contrary, the record is uncontroverted that, as the
prominent NAB and ATBA broadcasting trade associations observed,
channel sharing “will not avoid disruptions in service” and “should not
[be] consider[ed]…as mitigating loss of service.” JA __ ¶ 24 n.74. The
most the FCC can state is that “channel sharing could provide potential

48
cost-saving benefits” to LPTV. Id. ¶ 22 (emphasis added).8 But by failing
to identify or project the scope of any such cost savings, the Commission
forfeited its delegated administrative discretion to line-draw because it
did not “examine the relevant data.” State Farm, 463 U.S. at 43.
The Commission concluded that “[a]lthough some commenters
question the potential benefits of channel sharing for LPTV…, we be-
lieve that it may be a useful option for some LPTV and TV translator
stations to pursue.” JA __ ¶ 24. This illustrates the Commission’s
failure to connect its decision to the record evidence. By admitting there
is just a “possibility that [sharing] may be a useful arrangement for
some stations,” id. (emphasis added), the FCC’s explanation under-
scores that the agency is at best simply guessing and at worst con-
sciously avoiding reality. Neither is consistent with APA rulemaking
responsibilities. Appalachian Power Co. v. EPA, 249 F.3d 1032, 1054
(D.C. Cir. 2001).
8 Cf. id. ¶ 24 n.74 (“channel sharing offers few if any cognizable
benefits” for LPTV stations, and channel sharing will only serve to
“create little ghettos of entrepreneurs who, after most spectrum is sold
out from under them, will somehow desperately try to find a place to
go”) (citing Free Access Comments at 12).

49
More specifically, nothing about channel sharing, even assuming
cognizable cost savings, offers a meaningful remedy for the impact of
“displacement.” An LPTV station whose channel is lost in the phase two
spectrum reorganization—and either sold to a wireless carrier or re-as-
signed for unlicensed use—no longer has any spectrum usage rights to
utilize. Channel sharing applies only in rare cases, which the Com-
mission did not even attempt to quantify or project, where another
LPTV station serves the same geographic area but for some reason,
never identified by the FCC, is not also “displaced.”
Moreover, sharing a channel is in reality less than a band aid,
because neither of the sharing LPTV stations will still be able to
broadcast using all of the 6 MHz of spectrum assigned—including for
“multicasting” (multiple channels from a single station) and the higher
picture quality offered 24x7 today by EICB, Grace Worship (IBN) and
many other LPTV owners—thus by definition leading to an alteration of
spectrum usage rights. Sharing also represents an inherent decrease in
operational independence by forcing one LPTV owner to leave its as-
signed room (channel) with no other choice than to now convince
another competing broadcaster to lease a shared bunk bed (a shared

50
channel) to it. As it is conceded that the certain harm is elimination of
an LPTV licensee’s channel, any appropriate remedy must provide an
alternative home to which the station can move.
Thus, regardless of cost reductions, channel sharing is not a
realistic “mitigation” tool for LPTV stations displaced as a result of the
FCC’s spectrum reorganization because it does nothing to restore or
substitute for LPTV’s spectrum usage rights. It may save some LPTV
owners some money, but channel sharing does not at all mitigate the
loss of existing LPTV channels without an available alternative on
which to continue broadcasting independently.
Second, the Commission’s Commencing Operations Order im-
properly reverses the rule on “secondary” broadcaster rights without
acknowledging or explaining that dramatic change. FCC v. Fox, 556
U.S. at 515. LPTV’s secondary broadcasting status has always required
that an LPTV licensee must cease operations if its signal causes harm-
ful interference to a “primary” full-power television station. See supra at
10-11.9 Yet the FCC’s new rules (1) require LPTV stations to vacate
9 JA __ (Ex Parte Ltr. of EICB-TV East, GN Dkt. No. 12-268, at 2 (Jan.
21, 2013)) (“Our current spectrum usage rights are easily identifiable…

51
their channels immediately when there is a notice (not even an agency
finding) of “likely” interference, and (2) dictate that regardless of inter-
ference, all LPTV stations must abandon their channels and leave the
600 MHz Band within 39 months after the close of the forward auction,
47 C.F.R. § 74.802(f), whether or not that spectrum is sold in the
auction. Consequently, the FCC’s policy and rules allowing LPTV sta-
tions to operate unless there is a showing of actual, harmful inter-
ference with “primary” full-power television have been reversed without
even a nod by the Commission.10
Third, the FCC’s claim that its orders represent a “balancing” of
interests between LPTV and the new 600 MHz Band services auth-
orized post-auction is worse than a platitude, it is flatly false. Both the
Our current LPTV licenses…allow us to broadcast within our specific
6MHz at least one program stream, or as many program streams as we
deem practical….These licenses and permits are subject to interference
only from full power broadcast television stations….We understand we
must accept interference from full power TV broadcasters if it exists.
But there are no other licensed or unlicensed users that can diminish
our spectrum usage rights.”).
10 The FCC might contend it is empowered in the spectrum reorgani-
zation to assign the 600 MHz Band exclusively to new wireless licen-
sees. But that flies squarely in the face of § 1452(b)(5), and the Commis-
sion in any event made no exclusive spectrum assignments in its orders.

52
orders saddle LPTV with all the burdens of the spectrum reorgani-
zation. That the Commission rejected more severe wireless industry
proposals, including a ludicrous contention that the Spectrum Act
required elimination of LPTV service once a new 600 MHz license is
granted (JA __ ¶¶ 10-13), does not demonstrate that the FCC “bal-
anced” anything. Postponing the deadline for LPTV owners to shut
down is a temporary stay of execution, not any balance of rights vis-à-
vis other affected parties. It epitomizes capricious agency action.
Here, the FCC’s actions throughout the incentive auction rule-
making have been designed with one objective (albeit unstated) in
mind: to maximize spectrum sold in the forward auction and thus
“repurposed” for new wireless and unlicensed use. That is why the Com-
mission rejected Free Access’s earlier objection that the FCC cannot
“repurpose more spectrum than is vacant before the reverse auction or
than is relinquished in the reverse auction.” Expanding the Economic
and Innovation Opportunities of Spectrum Through Incentive Auctions,
30 FCC Rcd. 6746, 6777 ¶ 67 n.255 (2015). It is why the Commission
structured a band plan and design in its first 2014 decision, before
spectrum is relinquished by broadcasters and prior to the phase two

53
reorganization, that leaves the channels occupied by LPTV fair game to
take up front. Incentive Auction R&O, 29 FCC Rcd. at 6581-6617 ¶¶ 38-
108. And it is also in turn why the FCC, this year, announced an ag-
gressive “clearing target” of 126 MHz—before the reverse auction had
even begun—that is well higher than suggested earlier.11
The Spectrum Act does not endorse the Commission’s view that its
statutory role is to maximize spectrum available for new and unlicensed
wireless broadband. Neither Congress nor the facts support a claim that
the United States faces an imminent spectrum crisis or shortage imper-
iling the future of modern communications.12 Consequently, the Com-
mission’s oft-repeated justification for ignoring LPTV’s spectrum
11 Initial Clearing Target of 126 Megahertz Set for the Broadcast
Television Spectrum Incentive Auction, DA-16-453 (April 29, 2016)
(http://fcc.us/1X3hvOa).
12 See, e.g., Verizon Makes It Very Clear Its ‘Spectrum Crunch’ Never
Existed, Techdirt, Feb. 18, 2015 (http://ht.ly/Ep0v303olcd); Study
Disputes Predictions of Coming Spectrum Crunch, PCWorld, Aug. 22,
2014 (http://ht.ly/NbSi303onfc); The Spectrum Crunch That Wasn’t, MIT
Technology Review, Nov. 26, 2012 (http://ht.ly/fs9x303olsh). See IBN
Pet. for Recon., GN Dkt. No. 12-168, at 2, Sept. 13, 2014 (“The Commis-
sion’s spectrum auction and repacking scheme is based on the false
premise that there is a ‘wireless spectrum crisis’ that necessitates
taking spectrum from television broadcasters.”).

54
rights—that doing otherwise would jeopardize “success” of the auction
and conflict with the “purposes” of the Spectrum Act (which recites no
“purposes,” makes no findings, and is devoid of substantive legislative
history)—is transparent cover for administrative policy-making of the
worst sort.13
Agencies have discretion to set policies that further Congress’s
statutory objectives and fill “gaps” in legislation. National Cable & Tele.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005). They do not,
however, have power to invent new policies for which authority has not
been delegated or that conflict with the terms and intent of legislation.
By placing its policy for “repack” above the protection Congress spec-
ified for LPTV, the FCC violated “the core administrative-law principle
that an agency may not rewrite clear statutory terms to suit its own
sense of how the statute should operate.” Util. Air Reg. Group v. EPA,
134 S. Ct. 2427, 2446 (2014). And by taking upon itself to create and
13 The FCC plainly decided, without saying so, that to “clear” enough
spectrum to meet its self-selected goal of contiguous, nationwide bands
for unlicensed use, it must displace “many” LPTV stations out of exist-
ence, otherwise there would be insufficient spectrum to achieve that
post-forward auction objective. This approach, lacking a reasoned ex-
planation mooring the agency’s policy to the legal factors prescribed by
Congress, is arbitrary and capricious.

55
achieve “objectives” of the Spectrum Act that are neither stated by nor
consistent with that legislation, the Commission’s orders represent an
aggrandizement of administrative power that can only, and must, be
arrested by the judiciary.
III. THE FCC’S CHANNEL SHARING ORDER VIOLATES THE
REGULATORY FLEXIBILITY ACT AND SHOULD BE
REVERSED, REMANDED AND DEFERRED
The Channel Sharing Order included a Final Regulatory Flex-
ibility Analysis (“FRFA”) required by the Regulatory Flexibility Act, 5
U.S.C. § 601 et seq. The RFA is a congressionally mandated process
designed to prevent administrative overreach. Associated Fisheries v.
Daley, 127 F.3d 104, 111 (1st Cir. 1997). The Commission’s FRFA
facially violates its obligations under the Act.
The RFA obliges all federal agencies to assess the impact of their
regulations on small businesses to ensure that rules do not “unduly
inhibit the ability of small entities to compete, innovate, or to comply
with the regulation[s].”14 The Act accordingly compels agencies to
analyze the impact of regulations on small entities and to describe
14 JA __ (Ex Parte Comments of U.S. Small Business Admin., GN Dkt.
No. 12-268, at 1 (June 12, 2015) (citing Pub. L. No. 96-354, Findings
and Purposes, § 2(a)(4)-(5), 126 Cong. Rec. S299 (1980))).

56
concrete steps the agency “has taken” to “minimize” resulting financial,
regulatory and compliance costs on small businesses.
The RFA provides agencies two options: either (i) certify that its
rules “will not…have a significant economic impact on a substantial
number of small entities,” 5 U.S.C. § 605(b), or (ii) describe “the steps
the agency has taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable stat-
utes[.]” Id. § 604(a)(6). Here, the FCC could not certify under § 605(b)
because its follow-on orders will admittedly have a “significant economic
impact” on nearly all LPTV stations, which the agency accurately
deemed small entities.15
An administrative agency cannot determine how to minimize ad-
verse impacts of rules on small entities where, as here, it concededly
refused to conduct any “systematic analysis” of the effect of its rules on
LPTV stations.16 The Commission’s RFA analysis is thus defective in
several respects.
15 Incentive Auction R&O, 29 FCC Rcd. at 6964 & 6951 ¶ 18.
16 See supra at 26 & n.6.

Opening Brief, Free Access v. FCC, No. 16 1100 (D.C. Cir.)

Opening Brief, Free Access v. FCC, No. 16 1100 (D.C. Cir.)

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Opening Brief, Free Access v. FCC, No. 16 1100 (D.C. Cir.)