Petition for Writ of Certiorari — Radio Communications Corporation, Petitioner v. Federal Communications Commission, et al.
Supreme Court briefSep 18, 2025
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No.
In The
Supreme Court of the United States
---------------------------------Ë---------------------------------
RADIO COMMUNICATIONS CORPORATION,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND THE UNITED STATES OF AMERICA,
Respondents.
---------------------------------Ë--------------------------------ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------------------------------Ë---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------Ë---------------------------------
TIMOTHY E. WELCH
HILL AND WELCH
1116 Heartfields Drive
Silver Spring, MD 20904
(202) 321-1448 (cell)
welchlaw@earthlink.net
Counsel of Record
QUESTION PRESENTED
Whether the “best reading” of the Low Power Protection
Act (“LPPA”) mandates nationwide Low Power Protection
denial, as if the LPPA had not been enacted, where:
1. The lower court assumed that a trade association had
standing and redressed its speculative third-party injury
claim, FCC 23-112 ¶ 38, Pet. App. 77a-78a, asserted on
behalf of unknown Full Power broadcasters the LPPA
seeks to constrain, even though that injury claim is plainly
barred by Article III associational standing rules;
2. The lower court ignored this Court’s unanimously
rendered interpretive rule that statutory definitions are
“virtually conclusive,” altered statutory definitions to
nullify the LPPA’s and 47 U.S.C. § 307(b)’s nationwide
protection and licensing mandates, and produced an LPPA
reading with no substantial effect upon interstate
commerce; and
3. The lower court rejected First Amendment and mustcarry issues based upon RCC’s purported LPPA ineligibility, but inexplicably and inconsistently used the LPPAineligible trade association’s speculative third-party injury
claim to disqualify RCC from LPPA protection.
(I)
PARTIES TO THE PROCEEDINGS BELOW
All parties are disclosed in the case caption above.
RULE 29.6 DISCLOSURE STATEMENT
Petitioner, Radio Communications Corporation,
is a nonpublic, closely held company with no publicly
owned subsidiaries or owners, and is organized and located
in Connecticut. RCC’s sole owner is a citizen of the United
States residing in Connecticut.
RELATED CASES
The D.C. Circuit’s Opinion is reported at 141 F.4th
243 (CADC 2025). Pet. App. 1a.
(II)
TABLE OF CONTENTS
Page
Opinion Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Constitutional and Statutory Provisions Involved . . 2
Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Congress Twice Protects Low Power TV . . . . . . . 5
B. The Opinion Remedies Injury Claims For Unaffected
Bystanders Who Lack Standing . . . . . . . . . . . 6
C. Altering The LPPA’s Two DMA Definitions . . . 12
Reasons for Granting the Petition. . . . . . . . . . . . . . 14
A. Diamond Alternative Energy & The Other Side Of
The Standing Coin: The Targets Of FCC Relief
Are Just Unaffected Bystanders. . . . . . . . . . 14
B. Federal Court Access: Federal Agencies Are
Not Alter Egos For Trade Associations . . . . 16
C. Failure To Follow Supreme Court Direction. . . 20
1. Review Cannot Ignore Related Statute . . 20
2. Commerce Clause Issue Is Avoidable . . . 22
3. Improper Statutory Definition Alterations
Provoke Commerce Clause Issue . . . . 29
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(III)
IV
TABLE OF APPENDICES
Appendix A — Opinion of the United States Court
of Appeals For the District of Columbia Circuit,
Decided June 27, 2025. . . . . . . . . . . . . . . . . . 1a
Appendix B — Judgment of the United States Court
of Appeals For the District of Columbia Circuit,
Filed June 27, 2025 . . . . . . . . . . . . . . . . . . . 22a
Appendix C — Order of the United States Court of
Appeals For the District of Columbia Circuit,
Filed June 27, 2025 . . . . . . . . . . . . . . . . . . . 24a
Appendix D — Report and Order of the Federal
Communications Commission, Released
December 12, 2023 . . . . . . . . . . . . . . . . . . . 26a
Appendix E — Low Power Protection Act Enacted
January 5, 2023 . . . . . . . . . . . . . . . . . . . . . 122a
Appendix F — 47 U.S.C. § 307(a),(b). . . . . . . . . . 127a
Appendix G — U.S. Const. Art. I, Sec. 8, Cl. 3 . . 128a
V
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) . . . . . . . . . . . . . . . . . 10, 15
Blodgett v. Holden, 275 U.S. 142 (1927) . . . . . . . . . 22
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . 16, 24
Colautti v Franklin, 439 U.S. 379 (1979) . . . . . . . . 31
Diamond Alt. Energy, LLC v. EPA,
145 S. Ct. 2121 (2025) . . . . . . . 9, 11, 14, 15, 20
Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) . . . . . . . . . . . . . . . . . . . . 23
Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018). . . . . 20
FCC v. Consumers’ Rsch., 145 S. Ct. 2482 (2025) . . . 4
FDA v. All. for Hipp. Med., 602 U.S. 367 (2024). . . 10
Garza v. Woods, 2025 U.S.App. LEXIS 21642
(CA9 Aug. 25, 2025). . . . . . . . . . . . . . . . . . . . 10
Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333 (1977) . . . . . . . . . . . . . . . . . . . . 10
INS v. Center for Immigration Rights, Inc.,
502 U.S. 183 (1991) . . . . . . . . . . . . . . . . . . . . . 2
Jerome v. United States, 318 U.S. 101 (1943) . . . . . 30
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) . . . . . . . . . . . . . . . 2, 16, 24
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) . . . . 10
Meese v Keene, 481 US 465 (1987) . . . . . . . . . . . . . 31
Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) . . . . . . . . . . . . . . . . . . 11
Nat’l Ass’n of Priv. Fund Managers v. SEC,
2025 U.S. App. LEXIS 21717
(CA5 Aug. 25, 2025). . . . . . . . . . . . . . . . . . . . 10
VI
Powers v. Ohio, 499 U.S. 400 (1991) . . . . . . . . . . 9, 11
Pulsifer v. United States, 601 U.S. 124 (2024) . . . . 33
Rawat v. Comm’r, 108 F.4th 891 (CADC 2024) . . . 31
Slaughter v. Trump, 2025 U.S.App. LEXIS 22628
(CADC Sept. 2, 2025) . . . . . . . . . . . . . . . . . . . 8
Sturgeon v. Frost, 587 U.S. 28 (2019) . . . . . 12, 31, 32
TRW Inc. v. Andrews, 534 U.S. 19 (2001) . . . . . 13, 33
Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958 (CA11 2016) . . . . . . . . . . . . . . . 31
Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . 6
In the Matter of Consent to Transfer Control of
Certain Subsidiaries of TEGNA Inc.,
38 FCC Rcd. 1282 (MB 2023) . . . . . . . . . . . . . 6
In the Matter of Petition for Rulemaking to Establish
Standards for Determining the Standing of a
Party to Petition to Deny a Broadcast Application,
82 F.C.C.2d 89 (1980) . . . . . . . . . . . . . . . . . . . 6
In the Matter of The Suburban Community Policy,
the Berwick Doctrine, and the De Facto
Reallocation Policy, 93 F.C.C.2d 436 (1983). 18
Inquiry Into The Future Role of Low-Power
Television Broadcasting, 45 Fed. Reg. 69178
(Oct. 17, 1980) . . . . . . . . . . . . . . . . . . . . . . . . 19
Constitution, Statutes, and Regulations
5 U.S.C. § 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Community Broadcasters Protection Act of 1999,
P. L. 106-113, 113 Stat. 1501A-594,
47 U.S.C. § 336(f). . . . . . . . . . . . . . . . . . . . . 5, 6
47 U.S.C. § 307(a). . . . . . . . . . . . . . . . . . . . . . 8, 21, 25
47 U.S.C. § 307(b). . . . . . 13, 20, 21, 23, 25, 27, 33, 34
Low Power Protection Act,
117 P.L. 344; 136 Stat. 6193 (2023) . . 2, 4-6, 9,
12-14, 16-19, 22-25, 27-35
VII
Other Authorities
A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts (2012) . . . . . . . 2
FCC Chairman Carr, Statement on Media
Ownership,, July 23, 2025 . . . . . . . . . . . . 3, 16
The Regulatory Review, The Demise of Agency
Independence and the FCC, by Randolph J.
May, June 6, 2025 . . . . . . . . . . . . . . . . . . . . . . 8
In The Supreme Court of the United States
---------------------------------Ë---------------------------------
No.
RADIO COMMUNICATIONS CORPORATION,
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
---------------------------------Ë--------------------------------ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------------------------------Ë---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------Ë---------------------------------
Radio Communications Corporation, by its counsel,
respectfully petitions for a writ of certiorari to review
the Opinion and Judgment of the United States Court
of Appeals for the District of Columbia Circuit in No. 241004, issued June 27, 2025. Pet. App. at 1a-23a.
OPINION BELOW
The D.C. Circuit’s Opinion is reported at 141 F.4th
243 (CADC 2025). Pet. App. 1a.
(1)
2
JURISDICTION
The D.C. Circuit’s Judgment in this matter issued
on June 27, 2025. Pet. App. at 22a. The instant Petition
is timely filed within 90 days thereafter. U.S. Sup. Ct.
R. 13.1, 13.3. The Court’s jurisdiction is invoked under
28 U.S.C. § 1254(1). The D.C. Circuit’s jurisdiction arose
under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions
are reproduced in the Appendix. Pet. App. 122a-128a.
STATEMENT
This case concerns the first judicial interpretation
of the Low Power Protection Act (“LPPA”) enacted on
January 5, 2023. 136 Stat. 6193 (2023); 117 P.L. 344;
Pet. App. at 122a. As the LPPA’s title reveals, Congress
directed the Federal Communications Commission (“FCC”)
to protect Low Power TV stations (sometimes “LPTV”)
regarding, inter alia, spectrum displacement by Full Power
TV stations by upgrading LPTV stations to co-equal
“primary” license status, Opinion, Pet. App. 6a,1 but the
lower court embarked upon another course.2 The lower
1
See A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 221 (2012) citing INS v. Center for Immigration Rights,
Inc., 502 U.S. 183, 189 (1991) (“the title of a statute or section can
aid in resolving an ambiguity in the legislation’s text”). RCC Reply
at 2 n.2, CADC No. 24-1004.
2
After Loper Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024),
appeals courts are charged with finding a statute’s “best reading”
(continued...)
3
court read the LPPA not as protecting LPTV licenses,
but as protecting Full Power TV stations, the very
broadcasting group the LPPA seeks to constrain. Opinion,
Pet. App. 6a. That topsy-turvy result prohibits RCC
from prosecuting a protection application under the LPPA
and is reversible error. 5 U.S.C. § 706(2).
The FCC created LPTV in 1982 and it could have
protected LPTV at any time. Instead the FCC was content
to watch its fundamentally flawed LPTV licensing program
flounder for decades: the FCC oddly granted LPTV’s Full
Power TV competitors the regulatory power to displace
LPTV licensees even though LPTV was created to compete
against Full Power TV.3 The FCC’s unstable LPTV
licensing program has resulted in a combined failure of
more than 600 LPTV and Class A stations between 2010-
2
(...continued)
rather than merely determining whether the agency’s reading is
permissible. Accordingly, when statutory interpretation, not facts,
is the focus of an agency review proceeding, referring to the lower
court as the principal actor is appropriate and no disrespect is intended.
3
FCC Chairman Carr, July 23, 2025: “For decades, the FCC’s
approach to regulating the broadcast industry has failed to promote
the public interest. That has only made it harder for trusted and
local sources of news and information to compete in today’s media
environment.” https://docs.fcc.gov/public/attachments/DOC413180A1.pdf. Compare e.g., RCC Reply at 9-10, CADC No. 24-1004
(“The Commission’s decades long regulatory failure has led to highly
concentrated media ownership and dangerous information bubbles.
. . . FCC 23-112’s elevation of media concentration in service to NAB’s
Clients, directly contradicting clear Congressional direction to protect
LPTV, is arbitrary and capricious.”).
4
2023.4 This is the FCC’s years-long record of regulatory
failure Congress saw when it enacted the LPPA in 2023,
a history the orders below ignore as if the FCC were
painting on a blank canvas. FCC v. Consumers’ Rsch.,
145 S. Ct. 2482, 2536 (2025) (statutes are construed in
historic context).
In 1999 and 2023 Congress gathered the political
capital to try to protect LPTV, but the FCC barely reacted.
Under two statutes which have LPTV protection as their
mandates, the FCC favored Full Power TV licenses,
culminating in this case where the lower court denied
LPPA protection nationwide as if it were the Low Power
Protection Denial Act.
The FCC’s Low Power TV licensing program, now
spanning over four decades, has resulted in significant
losses of Low Power and Class A licenses, stranded
investments, and inhibited new investment in broadcast
equipment and services. RCC is now operating under
its third Low Power TV license, having previously lost
two Low Power TV licenses and a Class A license. Rather
4
Between 2010 and release of FCC 23-112 the number of LPTV
licenses declined from 2,387 to 1,889, a 20.9% license loss; the number
of CBPA “protected” Class A licenses declined from 525 to 380, a
27.6% Class A license loss, a combined total of 643 lost low power
licenses. As of April 2025 that combined lost license total had
increased to 743 lost low power licenses since 2010. See RCC’s April
25, 2025 Rule 28(j) Letter [2112753], CADC No. 24-1004. The lower
court ignored the station loss facts, as reported by the FCC itself,
without comment. Note: The FCC’s periodic station totals
publications make clear that Class A and LPTV licenses are distinct
license classes even though each license operates at “low power”
compared to “full power” TV licenses.
5
than protect RCC’s current Low Power TV license, the
proceedings below approved a rule which prohibits RCC,
and other Low Power TV licensees covering more than
99% of the Nation’s population, from even applying for
the LPPA’s protection.
A. Congress Twice Protects Low Power TV
Congress has twice responded to the FCC’s decades
of regulatory failure regarding television competition,
concentrated media, stranded capital, and restrained
investment by enacting LPTV protection statutes in 1999
and 2023. The Community Broadcasters Protection Act
of 1999 (“CBPA”), P. L. 106-113, 113 Stat. 1501A-594,
and 2023’s LPPA protect LPTV licenses by elevating
eligible Low Power TV licenses to “primary” Class A status
and vesting in them “the same license terms” as Full Power
TV licenses, except as expressly limited by statutory text.
See 47 U.S.C. § 336(f)(1)(A)(i) (CBPA);5 LPPA § 2(c)(3)(A),
Pet. App. at 125a. In 1999 Congress determined that
“license limitations, particularly the temporary nature
of the [LPTV] license, have blocked low-power broadcasters
from many having access to capital, and have severely
hampered their ability to continue to provide quality
broadcasting, programming, or improvements.”
5
Class A stations licensed under the CBPA possess the “same license
terms . . . as the licenses for full-power television stations except
as provided in this subsection.” Class A stations licensed under the
LPPA possess “the same license terms . . . as a license for a full power
television broadcast station, except as otherwise expressly provided
in this subsection.” LPPA Section 2(c)(3)(A), Pet. App. 125a (emphasis
added). Compared to the CBPA, the LPPA restates and reemphasizes
the FCC’s inability to minimize Class A protections.
6
CBPA, P. L. 106-113 § 5008(b)(3), 113 Stat. 1501A-594,
595. Those conditions persisted after implementation
of the CBPA and led to enactment of the LPPA in 2023.
B. The Opinion Remedies Injury Claims For
Unaffected Bystanders Who Lack Standing
1. The National Association of Broadcasters
(“NAB”), acting as plaintiff in the agency rulemaking
proceeding, asserted a speculative third-party injury,
claiming that its unnamed members might want to expand
their service areas in the future, and that implementation
of the LPPA might eliminate that future expansion
possibility. FCC 23-112 ¶ 38, Pet. App. 77a-78a. NAB
improperly used the LPPA rulemaking proceeding as
a petition to deny vehicle seeking nationwide denial of
the LPPA’s protections.
RCC opposed NAB’s speculative injury claim and
argued that “to qualify as an association representing
the interests of other parties which are attempting to
deny or limit the rights or interests of another, an
association must ‘allege that one or more of its members
has standing.’” RCC Reply Comments, MB Docket No.
23-126, Def. Apdx. 00076-77, 82, CADC No. 24-1004 citing
In the Matter of Consent to Transfer Control of Certain
Subsidiaries of TEGNA Inc., 38 FCC Rcd. 1282, 1288
n.46 (MB 2023), citing In the Matter of Petition for
Rulemaking to Establish Standards for Determining the
Standing of a Party to Petition to Deny a Broadcast
Application, 82 F.C.C.2d 89, 97 (1980), citing Warth v.
Seldin, 422 U.S. 490, 511 (1975).
NAB failed to identify any specific broadcaster
it represented and thus failed to establish associational
standing authorizing it to seek denial of RCC’s and other
7
LPTV licensees’ assertion of protections under the LPPA,
including cable TV must carry rights. NAB’s use of the
FCC’s rulemaking proceeding as a tool to harm LPTV
licensees was plainly beyond the scope of a properly
established rulemaking proceeding established under
the LPPA to explore LPTV license protection. Moreover,
the NAB’s effort to use the LPPA to limit LPTV rights
under the LPPA, merely because Full Power stations
might want to expand coverage in the future, was
improperly speculative. RCC Main Brief at 12, 27, 37,
40-41, and RCC Reply at 1-3, CADC No. 24-1004.
2. Rather than address RCC’s associational standing
argument, the FCC leaned into NAB’s speculative thirdparty injury claim and adopted NAB’s injury claim as
the FCC’s sole justification for reading the LPPA in a
non-nationwide manner. The FCC quoted from NAB’s
rulemaking comments to explain:
As NAB notes, elevating LPTV stations from
secondary to primary Class A status comes
at the cost of “effectively block[ing] coverage
and service improvements by full-service
stations.” . . . We decline to read the LPPA
as promoting maximum elevation of LPTV
stations to primary status; rather, Congress
adopted a much more balanced approach.
FCC 23-112 ¶ 38, Pet. App. 77a-78a.
FCC 23-112 adopted NAB’s anti-competitive
objection to the LPPA statute itself and determined that
NAB “need not ‘represent’ or seek to ‘protect’ LPTV
licensees in order to file comments in this proceeding.”
FCC 23-112 n.28, Pet. App. 35a. NAB failed to intervene
in the appeals court litigation even after RCC served it
with a courtesy copy of RCC’s January 23, 2024 Emergency
8
Motion [2037054]. NAB has no bona fide interest in this
proceeding, yet the FCC granted it relief. RCC Main Brief
at 12, CADC No. 24-1004.
The FCC completely ignored its own associational
standing rule and determined that parties could seek
to harm LPTV licensees by asserting speculative future
injury claims, and within the very LPPA rulemaking
proceeding ostensibly instituted to protect those same
LPTV licensees from harm. FCC 23-112 n.28, Pet. App.
35a. Neither the lower court nor the FCC addressed NAB’s
speculative injury claim, nor the fact that filing injury
claims against LPTV licensees was beyond the scope of
the LPPA protection rulemaking proceeding, nor the fact
that the orders below protect the Full Power TV
broadcasters the LPPA seeks to constrain. Opinion, Pet.
App. 6a.
RCC argued that the FCC’s LPPA reading was
“absurd,” “irrational,” and “nonsensical” because its
non-nationwide reading arose from the FCC’s improper
purpose of protecting NAB’s Clients, the very broadcasters
the LPPA seeks to constrain. RCC Brief at 27 and RCC
Reply at 25, CADC No. 24-1004. The notion of politically
“independent” federal agencies is currently the focus of
litigation and scholarly debate,6 but nothing in the LPPA
or the Federal Communications Act (“FCA”) authorizes
the FCC to serve as federal court legal representative
for private-party economic interests rather than the public
interest. 47 U.S.C. § 307(a),(b) (FCC “shall grant”
6
Slaughter v. Trump, 2025 U.S. Pet. App. LEXIS 22628 (CADC
Sept. 2, 2025) (reinstating a fired FTC commissioner in a split decision);
https://www.theregreview.org/2025/06/06/may-the-demise-of-agencyindependence-and-the-fcc/.
9
broadcast licenses nationwide in the public interest), Pet.
App. 127a. “The purpose of the Communications Act and
the LPPA is the promotion of broadcast outlets, not the
elimination of them.” RCC Main Brief at 20, CADC No.
24-1004.
The FCC assumed a novel and improper litigation
position in this appellate case: as legal representative
for a trade association’s speculative third-party injury
claim asserted on behalf of large broadcasters fully able
to represent themselves, Powers v. Ohio, 499 U.S. 400,
411 (1991) (third-party representation cannot arise unless
the injured party is hindered from seeking relief), the
group of broadcasters the LPPA constrains and who lacked
standing to pursue their speculative injury in federal
court in their own right. That novel and disturbing
litigation position easily melts away upon even a cursory
application of Article III standing doctrine.
FCC 23-112 ¶ 38, Pet. App. 77a-78a presents a
disturbing image of the FCC representing and promoting
the private, anti-competitive interests of a national
commercial TV trade association with members fully able
to represent themselves, Powers, 499 U.S. at 411, rather
than protecting LPTV licensees like RCC, the LPPA’s
nominally protected class of broadcasters. However, like
“the proverbial dog that did not bark,” the combined silence
of the lower court and the FCC regarding the special
protection accorded to NAB is telling. Diamond Alt.
Energy, LLC v. EPA, 145 S. Ct. 2121, 2132 (2025).
3. The lower court, inexplicably assumed NAB’s
associational standing and redressed NAB’s speculative
third-party injury claim, without comment. Moreover,
the lower court condoned the FCC’s literal transcription
of NAB’s anti-competitive position into federal law even
10
though that position was utterly devoid of agency factual
analysis, expertise, or judgment. FCC 23-112 ¶ 38, Pet.
App. 77a-78a. The lower court ignored RCC’s reminder
of its obligation to examine NAB’s Article III standing.
RCC Main Brief at 40, CADC No. 24-1004; RCC’s June
11, 2025 Rule 28(j) Letter [2120334], CADC No. 24-1004,
citing FDA v. All. for Hippocratic Med., 602 U.S. 367,
369 (2024) (holding that alleged “downstream economic
injuries” do not support standing when those injuries
are speculative and lack support in the record); see also
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110
(2001) (per curiam) (“We are obliged to examine standing
sua sponte where standing has erroneously been assumed
below.”).
Article III standing required NAB, as plaintiff before
the FCC and then as non-party plaintiff in the lower court
through the FCC’s representation, to allege an injury
in fact, caused by RCC, that was redressable by the appeals
court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992). An Article III injury is “an invasion of a legally
protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or
hypothetical.” Garza v. Woods, 2025 U.S.App. LEXIS
21642 at 7-8 (CA9 Aug. 25, 2025) citing Lujan, 504 U.S.
at 560. To maintain an associational standing claim in
federal court NAB must have members who would
otherwise have standing to sue in their own right; whose
interests to be protected are germane to the organization’s
purpose; and neither the claim asserted nor the relief
requested requires the participation in the lawsuit of
each of the individual members, Nat’l Ass’n of Priv. Fund
Managers v. SEC, No. 23-60626, 2025 U.S.App. LEXIS
21717, at 7 n.5 (CA5 Aug. 25, 2025) citing Hunt v. Wash.
11
State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977),
and the Full Power broadcasters had to demonstrate that
they were unable to represent themselves. Powers, 499
U.S. at 411.
Neither the Opinion nor FCC 23-112 point to
anything in the LPPA showing a Congressional intent
to protect the lobbyist’s Full Power clients “at the cost”
of the Low Power TV licensees the LPPA was enacted
to protect. Protecting NAB and its clients was not a proper
consideration in the rulemaking proceeding. RCC Main
Brief at 17, CADC No. 24-1004, citing Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (it is “arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to
consider . . . or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise”).
The lower court allowed NAB to pursue a speculative
third-party injury claim in federal court through the FCC
without any analysis or comment. The government cannot
“target a business or industry through stringent and
allegedly unlawful regulation, and then evade the resulting
lawsuits by claiming that the targets of its regulation
should be locked out of court as unaffected bystanders.”
Diamond Alt. Energy, 145 S. Ct. at 2142. The Opinion
assumed that unaffected bystander NAB clients, who
voluntarily stayed out of the courtroom, but who were
targeted by government regulation for relief, had standing
to pursue their speculative claim at the expense of RCC,
a party suffering actual harm caused by the FCC’s action.
12
C. Altering The LPPA’s Two DMA Definitions
1. The LPPA’s two “Designated Market Area”
(“DMA”) definitions, LPPA Sections 2(a)(2)(A),(B), Pet.
App. 123a, include all DMAs nationwide whether defined
as Nielsen Media Research defined DMAs, Section
2(a)(2)(A), or as “equivalent local markets.” Section
2(a)(2)(B).7 Neither DMA definition is limited by reference
to any TV household number or otherwise. Those two
statutory definitions are “virtually conclusive” and
unalterable absent some “exceptional reason.” Sturgeon
v. Frost, 587 U.S. 28, 57 (2019).
2. The Opinion uses three steps to find that the
LPPA implicitly protects NAB’s clients and cable TV
service providers rather than RCC and other LPTV
licensees covering more than 99% of the Nation’s
population. First, the lower court altered the large market
DMA definition, Section 2(a)(2)(A), Pet. App. 123a, by
adding a maximum 95,000 TV household limitation to
it, thus creating nationwide LPPA protection
Disqualification Regions. Opinion, Pet. App. 3a; RCC
Main Brief at viii, 4, 13-14, 32 n.15, 34-36, 39 n.17, CADC
No. 24-1004.
Second, the lower court negated the small local
market DMA definition, Section 2(a)(2)(B), Pet. App. 123a,
finding that “local markets” are “not ‘equivalent’ to the
system established by Nielsen, which defines larger
7
For ease of reference, the 210 Nielsen defined DMAs are referred
to herein as “large market DMAs.” Opinion, Pet. App. 8a, explaining
that Nielsen DMAs “define[] larger geographic regions than community
of license.” The “local market” DMAs are referred to herein as “small
local market DMAs” because “the LPPA concerns LPTV stations
that service small areas with low populations.” Opinion, Pet. App.
17a.
13
geographic regions than community” at Section 2(a)(2)(A).
Opinion, Pet. App. 7a-8a, 13a, 15a-16a. However, the
LPPA does not mandate that “equivalence” can only mean
congruently-sized “geographic regions.” RCC argued that
“equivalence” between the two market types means
“nationwide” and neither market definition specifies a
population limitation, but the lower court ignored RCC’s
statutory interpretation to keep in place the FCC’s remedy
for NAB’s speculative third-party injury claim. FCC 23-112
¶ 38, Pet. App. 77a-78a; RCC Main Brief at 4, 10-11, 24,
26-28, 29-30, 34-35, 37-38, 40-41, 44-45, 53, and RCC
Reply at 24-25, CADC No. 24-1004. Reading both
definitions to mean “larger geographic regions” improperly
renders the small local market DMA definition at Section
2(a)(2)(A) superfluous. TRW Inc. v. Andrews, 534 U. S.
19, 31 (2001) (courts must construe statutes so that “no
clause, sentence, or word shall be superfluous, void, or
insignificant”) (internal quotes omitted). RCC Reply at
24-25, CADC No. 24-1004 (“A basic rule of statutory
interpretation is that all words in a statute are to be given
effect, yet the Commission renders Section 307(b) and
Section 230 superfluous for Class A licensing.”).
Third, the lower court used its revised DMA
definition to infer a change to the manner of issuing Class
A licenses from 47 U.S.C. § 307(b)’s, Pet. App. 127a,
decades-old nationwide community licensing mandate,
to issuing Class A licenses on a non-nationwide basis
to several sparsely populated, large market DMAs.
Nationwide licensing is expressly required by § 307(b)
and there is no express override of that mandate in the
14
LPPA.8 RCC Main Brief at 19-23, CADC No. 24-1004
(“Instead of discussing the Commission’s responsibility
under Section 307(b) and the LPPA to issue Class A
licenses on nationwide basis, FCC 23-112 does the exact
opposite and explicitly protects NAB’s Clients.”).
REASONS FOR GRANTING THE PETITION
A. Diamond Alternative Energy & The Other
Side Of The Standing Coin: The Targets Of FCC
Relief Are Just Unaffected Bystanders
On June 20, 2025 the Court in Diamond Alt. Energy,
LLC v. EPA, 145 S. Ct. 2121 (2025) reversed the D.C.
Circuit’s judgment that certain parties lacked standing
to litigate alleged injuries caused by the EPA’s approval
of California’s Clean Air Act regulations on the grounds
that they were unaffected bystanders. Seven days later
the Opinion once again relegated a claim seeker, this
time NAB, to unaffected bystander status, the difference
being that NAB and its Full Power clients were the explicit
targets of speculative third-party regulatory relief at the
expense of RCC. FCC 23-112 ¶ 38, Pet. App. 77a-78a.
The FCC gave the LPPA a non-nationwide reading which
barred RCC, and other Low Power TV licensees covering
more than 99% of the Nation’s population, from even
applying for the LPPA’s protection. The lower court’s
8
RCC argued below that FCC 23-112’s LPPA interpretation, as
applied, violated constitutional requirements regarding regulation
of local economic activity. If the FCC’s limited LPPA reading were
the only possible reading, then the LPPA would be unconstitutional.
However, RCC provided two reasonable LPPA readings which satisfy
all constitutional and statutory concerns. Moreover, the LPPA has
two DMA definitions and it is literally impossible for there to be
just one LPPA interpretation as the lower court determined.
15
Opinion failed to address NAB’s standing even though
it granted NAB’s speculative third-party relief.
The government cannot “target a business or
industry through stringent and allegedly unlawful
regulation, and then evade the resulting lawsuits by
claiming that the targets of its regulation should be locked
out of court as unaffected bystanders.” Diamond Alt.
Energy, 145 S. Ct. at 2142. Similarly, the federal courts
cannot ignore the standing of unaffected bystander NAB
which is targeted by government regulations for relief
at the expense of RCC, a party suffering actual harm
caused by the FCC’s action.
Article III standing is so important in federal
litigation that courts are “obliged” to raise it on their
motion if the parties fail to raise it. Adarand Constructors,
Inc., 534 U.S. 103. Given the Court’s recent remand to
the D.C. Circuit regarding entities it had improperly
consigned to “unaffected bystander” status in Diamond
Alt. Energy, the lower court should have examined NAB’s
standing to seek speculative third-party relief through
FCC federal court representation, rather than consigning
NAB to “unaffected bystander” status which assumed
NAB’s standing. The Opinion does not point to any legal
theory allowing relief for a claimant who plainly lacked
standing.
More than 25 years ago Congress found that FCC
“license limitations, particularly the temporary nature
of the [LPTV] license, have blocked many low-power
broadcasters from having access to capital, and have
severely hampered their ability to continue to provide
quality broadcasting, programming, or improvements.”
CBPA, P. L. 106-113 § 5008(b)(3), 113 Stat. 1501A-594,
595. Congress explicitly determined that granting LPTV
16
license permanence would remedy many of the problems
resulting from the FCC’s chronic mismanagement of the
television industry. The decisions below improperly reject
that determination and the Nation remains trapped in
dangerous information bubbles caused by the FCC’s
decades of regulatory failure. RCC Reply at 9-10, CADC
No. 24-1004.
RCC’s June 29, 2024 Rule 28(j) Letter [2062316],
CADC No. 24-1004, citing Loper Bright, informed the
lower court that granting the FCC’s request for Chevron
deference was not possible. The lower court ignored RCC’s
information and reviewed the FCC’s continuation of
decades of broadcast industry regulatory failure, as
Chairman Carr succinctly put it, see n.3 at 3, supra, as
if Chevron were still a guiding light, the Opinion
uncritically repeating the contents of the FCC’s Brief
while ignoring RCC’s arguments. See n.14 at 24, infra.
The Nation remains trapped in dangerous information
bubbles Congress has twice attempted to burst. This
Court’s intervention is warranted.
B. Federal Court Access: Federal Agencies Are
Not Alter Egos For Trade Associations
FCC 23-112 ¶ 38, Pet. App. 77a-78a is not the
product of agency expertise, fact-finding, or deliberation,
it explicitly acknowledges that the FCC’s LPTV protection
denial rules were created to remedy NAB’s speculative
third-party injury claim. Neither the FCC nor the Opinion
point to anything in the LPPA showing a Congressional
intent to protect the NAB’s Full Power clients “at the
17
cost” of the protected LPTV license class.9 RCC Main
Brief at 27, 36-37, 40, CADC No. 24-1004. Instead, the
Opinion twists the LPPA into knots, ignoring basic
statutory interpretive rules, for the improper purpose
of protecting NAB’s Full Power clients, the entities the
LPPA seeks to constrain. Opinion, Pet. App. 6a.
NAB’s third-party injury claim that potential Full
Power improvements might be blocked by full LPPA
implementation is doubly speculative on its face. Moreover,
the Opinion ignored the real world fact that nobody
objected to RCC’s provisional LPPA protective application
on any grounds, expansion-related, must-carry-related,
or otherwise. Petitioner’s Third Request For Judicial
Notice [2118378] at 2-3, filed May 31, 2025, CADC No.
24-1004.
The lower court endorsed the FCC’s policy choice
declining to protect LPTV licenses on a nationwide basis
based upon the FCC’s literal transcription of NAB’s anticompetitive goal into law.10 Rather than effectuate explicit
9
RCC’s Reply at 25, CADC No. 24-1004, states that
RCC Brief at 27 argues that the Commission’s LPPA
reading is “absurd,” “irrational,” and “nonsensical”
because that non-nationwide [LPPA] reading is
prompted by the [FCC’s] improper purpose of
protecting NAB’s Clients.
The central problem with the lower court’s decision is that it condoned
the FCC’s appellate representation of a trade association’s speculative
third-party injury claim that the trade association, and its clients,
would lack standing to pursue in their own right. The Opinion does
not devote a single word to this central issue.
10
Neither the lower court nor the FCC explained how nationwide
LPPA protection denial constituted a “balanced approach” or served
(continued...)
18
Congressional purpose “to provide low power TV stations
with a limited window of opportunity to apply for the
opportunity to be accorded primary status as Class A
television licensees,” LPPA Section 2(b), Pet. App. at 123a,
the FCC adopted LPPA protection denial rules dictated
by a lobbyist who objected to the existence of the LPPA
itself. RCC Main Brief at 12, CADC No. 24-1004.
The FCC’s regulatory scheme is explicitly premised
upon speculative third-party injury claims that NAB and
its clients would lack standing to defend/prosecute in
federal court.11 The Opinion utterly fails to explain how
the FCC properly serves as NAB’s proxy in federal court
for NAB’s anti-competitive speculative third-party injury
claims.
The LPPA is a simple, two page statute with no
hidden, hard-to-find or easy-to-miss provisions. The
Opinion does not point to a single word in the LPPA which
gives the FCC discretion to value potential Full Power
TV expansion plans over “Low Power Protection.” The
lower court ignored the fact that more than forty years
ago the FCC determined that the process of Full Power
expansion had concluded and the time to develop small
market LPTV in urban areas had arrived. Report and
Order, In the Matter of The Suburban Community Policy,
the Berwick Doctrine, and the De Facto Reallocation Policy
(De Facto Reallocation), 93 F.C.C.2d 436, 452 n.29 (1983)
10
(...continued)
a national purpose or affected interstate commerce in any manner.
11
The lobbyist failed to meet the FCC’s associational standing rules
which prohibit associational representation. RCC Main Brief at
12, 27, 37, 40-41, RCC Reply at 1-3, and Def. Apdx. 00076-77, CADC
No. 24-1004.
19
citing Inquiry Into The Future Role of Low-Power Television
Broadcasting, 45 Fed. Reg. 69178, 69179 (Oct. 17, 1980).12
The “balance” Congress plainly struck in the LPPA
is that Low Power TV stations must be protected while
neither the NAB nor its Full Power clients are even
referenced, much less made the LPPA’s primary,
nationwide protection concern. Nevertheless, FCC 23-112
¶ 38, Pet. App. at 77a-78a and the Opinion promote NAB’s
anti-competitive lobbying position, and protect NAB’s
unverified suzerain, as if NAB’s non-textual talking point
were somehow the LPPA’s primary purpose.
Even though the FCC’s literal adoption of NAB’s
anti-competitive lobbying was front and center of RCC’s
litigation below, neither the Opinion nor FCC’s Brief below
even references NAB, as if NAB were a name which must
not be spoken. Nor do they discuss the fact that FCC
23-112 explicitly adopted NAB’s anti-competitive purpose,
elevating it to the status of federal law. FCC 23-112 ¶ 38,
Pet. App. at 77a-78a.13 NAB and its speculative third-party
injury allegation are the targets of the FCC’s protective
regulation. Therefore NAB’s standing to assert an injury
claim, and the lower court’s ability to redress that
12
RCC Main Brief at viii, 4-5, 14, 19-20, 32, 38-41, CADC No. 24-1004.
Opinion, Pet. App. at 2a, uses ellipses to ignore the critical words
“under a system of dividing television broadcast station licensees
into local markets” from the DMA definition found at LPPA Section
2(a)(2)(B). That deleted text serves as a basis for RCC’s statutory
argument, but the lower court inexplicably found that statutory text
unimportant.
13
See, e.g., RCC Main Brief at 10-11, 13, 20-21, 36-37, 53, CADC
No. 24-1004.
20
speculative third-party injury claim, must be examined.
Diamond Alt. Energy, 145 S. Ct. at 2135, 2142.
RCC invited NAB, in writing, to participate in the
lower court review proceeding. However, NAB failed to
appear, expressing no overt interest in the remedy it
received from the FCC. FCC 23-112 ¶ 38, Pet. App. at
77a-78a. Despite NAB’s default, the lower court endorsed
the FCC’s improper remedy without comment. Federal
courts must examine bystander standing when the
bystander asserts a claim which is redressed by the agency.
Diamond Alt. Energy, 145 S. Ct. at 2135, 2142. The lower
court utterly failed to address NAB’s standing to assert
a speculative third-party injury claim, an assertion which
caused the FCC to alter the large market DMA definition
and “decline to read the LPPA as promoting maximum
elevation of LPTV stations to primary status.” FCC 23-112
¶ 38, Pet. App. at 77a-78a. This Court’s intervention
is warranted.
C. Failure To Follow Supreme Court Direction
1. Review Cannot Ignore Related Statute
The lower court plainly erred in at least two ways
when it inferred that because the LPPA does not
specifically reference long-existing Section 307(b), Pet.
App. 127a, RCC could not use that statutory provision
to construe the LPPA. Pet. App. 11a-12a, 14a. First,
prior enacted statutes continue in force until Congress
explicitly repeals or amends them. Epic Sys. Corp. v.
Lewis, 584 U.S. 497, 510 (2018) (there is a “stron[g]
presum[ption] that repeals by implication are disfavored
and that Congress will specifically address preexisting
law when it wishes to suspend its normal operations in
a later statute.”) (Internal quotes omitted).
21
The Opinion fails to point to anything in the LPPA
which explicitly provides, or even remotely suggests, that
Congress intended to eliminate Section 307(b)’s nationwide
licensing mandate, or Section 307(a)’s “public interest”
mandate, to favor and elevate bystander Full Power
broadcasters’ speculative future expansion concerns above
the LPPA’s explicit LPTV license protection purpose.
The Opinion does not even reference, much less discuss,
the FCC’s explicit justification for its extremely narrow,
non-nationwide LPPA interpretation: protecting the anticompetitive policy desire of an association of concentrated
media owners the LPPA was enacted to constrain. FCC
23-112 ¶ 38, Pet. App. at 77a-78a. Nor does the lower
court discuss the fact that the FCC enshrined a lobbyist’s
third-party speculative injury claim into law and then
prosecuted that speculative injury claim in federal court
in violation of Article III standing requirements.
Second, the lower court added the entirety of FCA’s
Title III broadcast regulation to support its finding that
its limited non-nationwide LPPA reading has a substantial
economic impact. Opinion, Pet. App. 18a. The lower
court does not explain its pick-and-choose standard for
adding the whole of the FCA’s Title III broadcast regulation
to FCC 23-112’s nationwide LPPA protection denial to
support a finding of substantial interstate commerce,
while dismissing RCC’s Section 307-based arguments
merely because the LPPA does not specifically reference
Section 307. Opinion, Pet. App. 11a-12a, 14a. The Opinion
inexplicably ignores the fact that FCC 23-112’s ordering
clauses relied upon Section 307 as supporting legal
authority. Pet. App. 98a, 102a; RCC Main Brief at 38-40
& n.16, CADC No. 24-1004. The lower court’s view that
the LPPA is a stand-alone statute for purposes of
22
discounting RCC’s DMA definitional arguments, ignores
its own recognition that the LPPA and the FCA are “related
statutes.” Opinion, Pet. App. 2a. With all due respect,
that is inconsistent adjudication.
Even if the LPPA were a stand-alone statute, RCC’s
preferred LPPA reading is a more straight forward reading
compared to the lower court’s statutory vivisection. Section
2(c)(2)(B)(iii), Pet. App. 124a-125a, consists of “two
adverbial prepositional phrases [which] describe where
and how the subject LPTV station operates.” RCC’s LPTV
station operates in a DMA and RCC’s Low Power station
serves fewer than 95,000 television households in both
the small local DMA market of Allington, CT and the
large market DMA. LPTV licenses serving communities
of fewer than 95,000 TV households exist from coast to
coast, including urban areas. RCC Reply at 20-22, CADC
No. 24-1004.
Licensing LPTV stations to serve small communities
in spectrum congested urban areas is the reason the FCC
created LPTV and changed its licensing rules more than
40 years ago. See pp. 18-19, supra. The LPPA does not
authorize the lower court to rewrite the LPPA, or to infer
nationwide protection denial, to harm nominally protected
LPTV licensees, like RCC, for the purpose of protecting
a trade association which is a mere bystander without
standing. This Court’s intervention is warranted.
2. Commerce Clause Issue Is Avoidable
Declaring of an Act of Congress unconstitutional
is “the gravest and most delicate duty” that courts are
called on to perform. Blodgett v. Holden, 275 U.S. 142,
148 (1927). That is exactly why RCC developed two
procedural off ramps and two LPPA interpretations
23
involving nationwide small local market DMAs: to avoid
the constitutional question of whether nationwide LPPA
protection denial substantially affects interstate commerce.
RCC Main Brief at 32-33, 35, 36, 45, CADC No. 24-1004,
citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 575 (1988) (“where
an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress”).
RCC’s effort to protect LPTV licenses is harmonious with
the LPPA.
a. RCC offered the lower court four ways to avoid
the commerce clause issue: by ruling on RCC’s “beyond
the scope” argument that harming LPTV licensees to
benefit NAB’s clients is beyond the scope of a rulemaking
proceeding instituted under the LPPA which was enacted
to protect LPTV while constraining NAB’s clients; by
applying a standing analysis to NAB’s speculative thirdparty injury claim which is at the heart of FCC 23-112,
FCC 23-112 ¶ 38, Pet. App. at 77a-78a; or by choosing
one of two statutory readings based upon Section 307(b).
RCC Main Brief at 12, 37 citing FCC 23-112 at 5 n.28,
Pet. App. 34a-35a; RCC Reply at 1-3, CADC No. 24-1004.
However, the Opinion ignored the issue of whether
searching for ways to harm LPTV licensees to benefit
NAB’s clients is a legitimate rulemaking objective under
the LPPA, ignored NAB’s standing problem, and negated
both local markets approaches RCC offered by determining
that small local DMA markets cannot exist under the
LPPA, Opinion, Pet. App. 7a-8a, 13a, 15a-16a, despite
the plain text of LPPA Section 2(a)(2)(B) which explicitly
defines DMAs as including “local markets.” Pet. App.
24
123a. With all due respect, proper review does not ignore
evidence of improper rulemaking, especially when
evidenced by the agency’s own words, without any comment
whatsoever.
Instead, the lower court chose the FCC’s large
market DMA rule which inherently implicates a commerce
clause issue because the FCC’s approach denies LPPA
protection on a nationwide basis. Opinion, Pet. App. 18a,
blames RCC for raising the LPPA’s constitutionality,
but RCC’s argument had absolutely nothing to do with
the lower court’s need to reach the constitutional issue.
The lower court reached the commerce clause issue of
its own volition “because the statute and the agency’s
interpretation are effectively indistinguishable . . ..” Id.14
b. Opinion, Pet. App. 18a, states that “Congress
is acting to regulate the interstate broadcast market more
broadly, not just local activity.” That is exactly what
RCC has argued for the past two-plus years, but that
is not the determination the Opinion actually delivered
regarding the LPPA. The central issue presented is
whether the Opinion presents the LPPA’s “best reading”
as being a Congressional standstill order which maintains
the status quo, denies LPPA protection nationwide, and
has no substantial effect upon interstate commerce.
Congress could have achieved those ends without enacting
the LPPA in the first place. The lower court’s statutory
construction elevated a trade association’s speculative
third-party injury claim for the purpose of protecting a
14
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) was
overruled and determining whether FCC 23-112 is permissible under,
or “indistinguishable” from, the LPPA was not the objective of the
lower court review proceeding, the objective was to find the LPPA’s
“best reading.” Loper Bright, 603 U.S. at 400.
25
group of Full Power broadcasters the LPPA seeks to
constrain. Opinion, Pet. App. 6a.
RCC plainly argued that the LPPA’s broadcast
protection cannot be limited to “deserts, rivers, lakes,
mountains, prairie grasslands, literally authorizing Class
A service to everywhere, except those places where people
are located.” RCC Brief at 14, 32, CADC No. 24-1004.
“The FCA exists to provide broadcast services to
communities of people, not licensing broadcast services
to vast, unpopulated swatches of beautiful, natural vistas.”
Id. citing 47 U.S.C. § 307(a),(b), Pet. App. 127a. Prairie
dogs, grass, cactus, sagebrush, sand, etc., are not economic
entities contributing to the GDP.
At oral argument undersigned counsel was asked
directly by the panel: “You don’t raise a facial constitutional
challenge to the statute?” To which undersigned counsel
responded: “Not on that basis, no. Our reading of the
statute is constitutional. We’re using the Commission’s
current licensing scheme to make nationwide licensing.
The Commission wants to do, for the first time,
non-nationwide licensing.” The lower court needed to
reach the LPPA’s constitutionality only “if FCC 23-112’s
LPPA reading were the only one possible, then the LPPA
would be facially unconstitutional for having an
insubstantial effect upon interstate commerce.” RCC
Main Brief at 36, CADC No. 24-1004. The LPPA has
two DMA definitions and it is literally impossible for there
to be just one LPPA interpretation as the lower court
determined.
LPPA invalidation does absolutely nothing to
advance RCC’s interests: RCC is seeking the LPPA’s
protection, invalidating the LPPA is not even remotely
26
RCC’s objective.15 The lower court’s suggestion that it
was RCC who sought to void the LPPA on constitutional
grounds does not even rise to the level of being specious
– the assertion is facially implausible as a litigation tactic.
The lower court’s decision to alter statutory definitions
and create a constitutional issue, only to close its eyes
to the reality that no commerce is generated by nationwide
LPPA protection denial, merely to remedy an unaffected
bystander trade association’s third-party speculative injury
claim, FCC 23-112 ¶ 38, Pet. App. at 77a-78a,
demonstrates both the importance of this case and the
weakness of the lower court’s LPPA reading.
The lower court reached the constitutionality of
the LPPA because it determined that the “best reading”
of the LPPA rewrites statutory definitions, turns the LPPA
into a nationwide protection denial statute that has no
substantial effect upon interstate commerce, serves no
national purpose, and reads the LPPA out of existence
as if Congress had codified a federal version of the Dormant
Commerce Clause merely to maintain the status quo to
direct the FCC “to keep doing nothing.” That cannot
possibly be correct, such an act would be titled the “Low
Power Prevention Act” not the “Low Power Protection
Act.” Neither the lower court nor the FCC answered the
obvious question: why would Congress “waste its time
for the purpose of affecting such a marginal impact?”
FCC 23-112 n.173, Pet. App. 77a (quoting, but not
addressing, RCC’s rulemaking comment). RCC Main
Brief at 26 n.11, CADC No. 24-1004.
15
The public interest is not served by waiting another generation
for Congress to enact a third low power protection action act to try
to reign in the FCC’s unlawful Full Power TV protectionism.
27
Opinion, Pet. App. 13a, weakly tries to wring a
concession from RCC by stating that:
Section 307(b)’s “community of license” does
not provide for an equivalent system, as
RCC itself recognizes, and thus was not a
viable option for the FCC to adopt. See
Pet’r’s Final Br. 13 (describing Nielsen’s
DMA as much “larger geographic regions”
than section 307(b)’s community of license).
RCC “recognized” no such thing. To the extent
that the quoted passage indicates that RCC endorsed,
or otherwise accepted, adopted, condoned the FCC’s view
that “local markets” cannot exist under the LPPA because
“local markets” are not “equivalent” to “larger markets,”
the court’s opinion is, with all due respect, very poorly
drafted. First, RCC’s Main Brief at 13, CADC 24-1004,
clearly quotes and criticizes the quoted passage which
RCC took from FCC’s rulemaking text: RCC did not argue
that it should lose this case. Second, the lower court
utterly ignored RCC’s argument that the two DMA
definitions found at LPPA Sections 2(a)(2)(A),(B) were
“equivalent” because neither definition contains a
population limitation and each definition requires LPPA
protection through nationwide markets. See, e.g., RCC
Main Brief at 30, 34, 44, CADC No. 24-1004. RCC’s
approach had the added efficiency benefit that the FCC
and LPTV licensees are already familiar with the Section
307(b) community of license licensing scheme. Pet. App.
127a.
c. Opinion, Pet. App. 18a, latches onto the FCC’s
argument that “a feature of broadcasting is that it crosses
state lines, and in approving specific local stations for
status upgrades, Congress is acting to regulate the
28
interstate broadcast market more broadly, not just local
activity.” The lower court’s adopted reasoning suffers
from three defects.
First, the lower court followed the FCC’s lead and
completely ignored RCC’s argument that LPPA eligible
LPTV stations already exist in the frequency environment
having already cleared the FCC’s interference screen
and interstate signals are not an issue in Class A upgrade
licensing. The LPTV license upgrade modification merely
requires typing a new “Class A” station class on the
superseded LPTV class license, no change to the
electromagnetic spectrum is required to obtain Class A
protection status. RCC Main Brief at 29 n.13, 40-41.
The lower court ignored the fact that of the handful
of Class A upgrade applications which were filed out of
1,889 potential upgrade applicants, the FCC approved
upgrade applications containing insubstantial, single
sentence assertions of non-interference unsupported by
electrical engineering studies. RCC’s February 22, 2025
Rule 28(j) Letter [2102165], CADC No. 24-1004. The
lower court ignored FCC 23-112 ¶ 46, Pet. App. 88a-89a,
which prohibits LPPA protection applicants from modifying
their transmission systems in conjunction with Class A
upgrades to avoid frequency/engineering issues. The
FCC’s Class A denial process has nothing to do with
interstate signal regulation and does not support a finding
of substantial interstate commerce.
Second, Congress did not “approve specific local
stations for status upgrades,” Congress stated its protection
purpose generally, “to provide low power TV stations with
a limited window of opportunity to apply for” upgrades,
without pointing to “specific local stations.” LPPA Section
(2)(b), Pet. App. 123a. The LPPA does not designate any
29
“specific local stations” for inclusion in, or exclusion from,
LPPA protection.
Third, the Opinion reads the LPPA very narrowly,
endorsing the FCC’s express purpose of protecting NAB’s
clients from speculative harm. FCC 23-112 ¶ 38, Pet.
App. at 77a-78a. The lower court construed the LPPA
as doing nothing on a nationwide basis, that is the exact
the opposite of Congress, in the words of the Opinion,
“acting to regulate the interstate broadcast market more
broadly.” This Court’s intervention is warranted.
3. Improper Statutory Definition Alterations
Provoke Commerce Clause Issue
a. LPPA Section 2(a)(2), Pet. App. 122a-123a,
defines “Designated Market Area” (“DMA”) in two ways:
(A) a Designated Market Area determined
by Nielsen Media Research; or
(B) a Designated Market Area under a
system of dividing television broadcast
station licensees into local markets using
a system that the Commission determines
is equivalent to the system established by
Nielsen Media Research.
Neither the “large market DMA” nor the “small
local market DMA” definition requires using the smallest
number of markets which could possibly exist in a
regulatory scheme;16 contains any geographic size or
16
For ease of reference, the 210 Nielsen defined DMAs are referred
to herein as “large market DMAs.” Opinion, Pet. App. 8a, explaining
that Nielsen DMAs “define[] larger geographic regions than
community of license.” The “local market” DMAs are referred to
herein as “small local market DMAs” because “the LPPA concerns
(continued...)
30
population limitation; overrides the nearly century-old
nationwide licensing mandate found at 47 U.S.C. § 307,
Pet. App. 127a; nor indicates that Congress intended
something less than nationwide application of the LPPA.
Therefore, LPPA defined DMAs are nationwide in scope
whether defined as Section (a)(2)(A) “large market DMAs”
or as Section (a)(2)(B) “small local market DMAs.” RCC
Main Brief at 30 & n.14, 33-34, CADC No. 24-1004.
b. The lower court erred by literally reading the
LPPA from back to front, improperly severing the “95,000
television household limit” found in the LPPA’s LPTV
licensee qualification clause at Section 2(c)(2)(B)(iii), Pet.
App. 125a, and grafting it onto the earlier occurring
“virtually conclusive” DMA large market definition. LPPA
Section 2(a)(2)(A). Pet. App. 122a-123a. The lower court
then used its definitional alteration to infer that Congress
intended non-nationwide Low Power TV protection under
the “Low Power Protection Act.” However, the interpretive
presumption is that when Congress acts “the application
of federal legislation is nationwide.” Jerome v. United
States, 318 U.S. 101, 104 (1943). The LPPA’s explicitly
stated statutory purpose “is to provide low power TV
stations with a limited window of opportunity to apply
for the opportunity to be accorded primary status as Class
A television licensees,” nothing in the LPPA suggests
that its purpose is nationwide Low Power protection denial.
LPPA Section 2(b), Pet. App. 123a.
Like a Frankenstein’s monster, the Opinion treats
the LPPA’s 95,000 TV household licensee qualification
16
(...continued)
LPTV stations that service small areas with low populations.”
Opinion, Pet. App. 17a.
31
clause at Section 2(c)(2)(B)(iii), Pet. App. 125a, as if it
were “a disconnected appendage of the ‘Designated Market
Area’ definition found at Section 2(a)(2)” to be reassembled
into a legislative abomination. RCC Main Brief at 30,
34, No. 24-1004. However, “had Congress intended that
reading, it would have written the statutory definition
to reflect that.” RCC Reply at 22, CADC No. 24-1004.
See Sturgeon v. Frost, 587 U.S. 28, 57 (2019) (statutory
definitions are “virtually conclusive” absent some
“exceptional reason”); Meese v Keene, 481 US 465, 484-485
(1987) (“It is axiomatic that the statutory definition of
the term excludes unstated meanings of that term”);
Colautti v Franklin, 439 U.S. 379, 392-393 n.10 (1979)
(“As a rule, a definition which declares what a term means
. . . excludes any meaning that is not stated”) (internal
quotes omitted); RCC Reply at 22, No. 24-1004, citing
Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958,
967 (CA11 2016) (“It is very rare that a defined meaning
can be replaced with another permissible meaning of the
word on the basis of other textual indications; the definition
is virtually conclusive.”) (internal quote omitted).
Opinion, Pet. App. 13a, cites the lower court’s own
recently decided case holding that statutory definitions
are “virtually conclusive,” Rawat v. Comm’r, 108 F.4th
891, 895 (CADC 2024), but failed to apply that holding
to this case and failed to provide any reason, “exceptional”
or otherwise, for altering the LPPA’s “virtually conclusive”
DMA definition. Despite the existence of two explicitly
worded, unlimited, nationwide DMA definitions, the
Opinion takes the extraordinary step of creating a
statutory definition for the non-statutory purpose of
rendering the LPPA non-nationwide in scope to protect
NAB’s speculative interests.
32
c. The Opinion errs stating that “how the
Commission defines a station’s DMA for the purpose of
Class A eligibility does not affect the station’s area of
licensing or otherwise alter its LPTV license.” Pet. App.
at 15a. First, it is not the FCC’s function to “define[] a
station’s DMA,” the LPPA’s two DMA definitions are
“virtually conclusive,” do not contain population limitations,
and there was nothing for the FCC to define. LPPA Section
2(a)(2)(A),(B), Pet. App. 122a-123a. Improper definitional
alteration was a central issue below, but the Opinion
ignores this Court’s interpretive rule that statutory
definitions are “virtually conclusive” absent some
“exceptional reason.” Sturgeon v. Frost, 587 U.S. at 57.
Second, the explicit “purpose” of the LPPA is to
affect and alter Low Power licenses, that is, altering LPTV
licenses to provide them with LPPA protection. The lower
court’s focus on nationwide Low Power protection denial
as the overriding statutory purpose underlying the “Low
Power Protection Act,” rather than modifying LPTV
licenses to provide them with protection, is plainly contrary
to the LPPA’s explicitly defined nationwide protection
purpose.
d. The Opinion improperly reads the “local markets”
DMA definition out of existence merely because “local
markets” are not sized like Nielsen’s “much larger
geographic region” DMAs. Pet. App. 13a (internal quote
omitted). The LPPA’s DMA definitions do not require
that “equivalence” is only based upon congruent “size”
as the Opinion determined. The question is whether small
local market DMAs are “equivalent” to large market DMAs
based upon some objective metric. Clearly small local
market DMAs can differ in size from larger market DMAs
33
because Congress included definitions for both market
sizes in the LPPA.
The lower court’s LPPA construction reads the
small local market DMA definition and the large market
DMA definition as if they were the same thing, improperly
rendering superfluous the LPPA’s Section 2(a)(2)(B) small
local market DMA definition. Pet. App. 123a. See Pulsifer
v. United States, 601 U.S. 124, 143 (2024) (“the canon
against surplusage applies with special force” when a
subparagraph is rendered meaningless”); TRW Inc., 534
U.S. at 31; RCC Reply at 20-25, CADC No. 24-1004.
The lower court found RCC’s statutory discussion
“convoluted,” Pet. App. 11a, but generally failed to discuss
RCC’s two approaches to LPPA interpretation, each of
which read the LPPA as protecting Low Power TV
nationwide in small local market DMAs based upon Section
307(b) communities of license. Pet. App. 127a. RCC’s
preferred interpretation leaves the DMA definitions
untouched because they define nationwide DMA markets
and the definitions are “virtually conclusive.”
Turning to the very last clause of the LPPA’s licensee
qualification section, LPPA Section 2(c)(2)(B)(iii), Pet.
App. 124a-125a, provides that:
The Commission may approve an application
submitted under subparagraph (A) if the
low power TV station submitting the
application . . . operates [1] in a Designated
Market Area [2] with not more than 95,000
television households.
Section 2(c)(2)(B)(iii) consists of “two adverbial
prepositional phrases [which] describe where and how
the subject LPTV station operates.” RCC’s LPTV station
operates in a DMA and RCC’s Low Power station serves
34
fewer than 95,000 television households in the Section
307(b) community of license it serves. RCC Reply at 20-22,
CADC No. 24-1004.
RCC’s statutory construction leaves the DMA
definitions intact, leaves the licensee qualification section
intact, and has only two steps, including an English
grammar refresher. RCC’s statutory construction is not
“convoluted,” but is easily understood and it maintains
the LPPA’s nationwide function as a “Low Power Protection
Act.” Moreover, every eligible “low power TV station
submitting the application” was initially licensed under
Section 307(b). Section 307(b) provides an existing,
nationwide system of “local markets”under which every
broadcast station has been licensed for more than 90 years.
See RCC Main Brief at 30, 34, 44, and RCC Reply at 20-23,
CADC No. 24-1004.
The lower court’s construction, on the other hand,
strips a clause from the licensee qualification section,
selectively appends that textual alteration to the “virtually
conclusive” large market DMA definition, but not to the
small local market DMA definition, and transforms the
extracted LPTV licensee qualifier into a DMA market-size
qualifier. With all due respect, it is the appeals court’s
statutory construction that is a “convoluted,” unnatural
LPPA reading.
If it were necessary to augment the LPPA Section
2(a)(2) DMA definitions, Pet. App. 123a, with the TV
household limit taken from the licensee qualification
section, the lower court should have modified the LPPA’s
Section 2(a)(2)(B) small local market DMA definition in
the same manner as the lower court modified the large
market DMA definition, using the Section 307(b), Pet.
App. 127a, community of license as the small local market
35
DMA boundaries. RCC’s small local DMA markets LPPA
reading applies nationwide and substantially affects
interstate commerce by promoting nationwide broadcast
investments and deconcentrates media across the nation.
The lower court’s statutory construction, on the other
hand, applies the LPPA in a non-nationwide manner,
limits broadcast investment, concentrates media, and
creates dangerous information bubbles via nationwide
LPPA protection denial. RCC Main Brief at 8 n.5, 9, 41
and RCC Reply at 9-10, CADC No. 24-1004. This Court’s
intervention is warranted.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
TIMOTHY E. WELCH
HILL AND WELCH
1116 Heartfields Drive
Silver Spring, MD 20904
(202) 321-1448 (cell)
welchlaw@earthlink.net
SEPTEMBER 2025
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLU M BI A
CIRCUIT, DECIDED JUNE 27, 2025 . . . . . . . . . . . 1a
A PPENDI X B — J U DGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLU M BI A
CIRCUIT, FILED JUNE 27, 2025 . . . . . . . . . . . . . 22a
A PPEN DI X C — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLU M BI A
CIRCUIT, FILED JUNE 27, 2025 . . . . . . . . . . . . . 24a
A PPENDI X D — REPORT A ND
ORDER OF THE FEDERAL
C OM M U N IC A T IONS C OM M I S S ION,
RELEASED DECEMBER 12, 2023 . . . . . . . . . . . 26a
APPENDIX E — LOW POWER PROTECTION
ACT, ENACTED JANUARY 5, 2023 . . . . . . . . . . 122a
APPENDIX F — EXCERPT OF
47 U.S.C. § 307(a),(b) . . . . . . . . . . . . . . . . . . . . . . . . 127a
APPENDIX G — EXCERPT OF
U.S. CONST. ART. I, SEC. 8, CL. 3 . . . . . . . . . . . 128a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, DECIDED JUNE 27, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-1004
RADIO COMMUNICATIONS CORPORATION,
PETITIONER,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.
Argued November 18, 2024
Decided June 27, 2025
On Petition for Review of an Order of the
Federal Communications Commission
Before: K atsas and Childs , Circuit Judges, and
Edwards, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Edwards.
Edwards, Senior Circuit Judge: Radio Communications
Corporation (“RCC”), a telecommunications and media
company, petitions for review of a final order issued by
the Federal Communications Commission (“FCC” or the
2a
Appendix A
“Commission”) implementing the Low Power Protection
Act (“LPPA”), Pub. L. No. 117-344, 136 Stat. 6193 (2023).
The LPPA provides low power television (“LPTV”)
stations with an opportunity to apply for an upgrade to
a Class A license if they meet certain criteria. See LPPA
§ 2. To be eligible, a LPTV station must “operate[] in
a Designated Market Area with not more than 95,000
television households.” Id. § 2(c)(2)(B)(iii). A Designated
Market Area (“DMA”) means either “(A) a Designated
Market Area determined by Nielsen Media Research or
any successor entity; or (B) a Designated Market Area
. . . using a system that the Commission determines is
equivalent to the system established by Nielsen Media
Research.” Id. § 2(a)(2). Pursuant to the LPPA, the FCC
issued an Order which, inter alia, adopted the statute’s
“95,000 television households” limitation for a DMA
and confirmed that the Commission would use Nielsen’s
Local TV Report — a collection of data on local television
markets — to determine a station’s DMA. In the Matter
of Implementation of the Low Power Protection Act, 38
FCC Rcd. 12627 (2023) (“Order”).
Petitioner RCC operates a LPTV station, W24EZ-D,
in Connecticut. On January 10, 2024, RCC challenged the
Order as unlawful. RCC’s primary argument focuses on
the LPPA’s size limitation for Class A license eligibility,
i.e., the station must operate in a DMA with not more than
95,000 television households. RCC argues that the size
limitation applies to a station’s “community of license,”
not its DMA. A station’s “community of license” is the
community that the station is licensed to serve under
section 307(b) of the Communications Act of 1934, 47
U.S.C. § 151 et seq., a separate but related statute. RCC’s
3a
Appendix A
station, for example, is licensed to serve Allingtown, a
neighborhood of West Haven, Connecticut, which has
fewer than 15,000 television households. However, RCC’s
station is a part of the Hartford-New Haven DMA which
has approximately one million television households. Thus,
under RCC’s reading of the LPPA, its station satisfies
the LPPA’s size requirement, whereas under the Order,
it does not.
RCC also raises a host of other statutory and
constitutional arguments. It maintains that the Order
contravenes section 307(b) of the Communications
Act which, RCC contends, mandates nationw ide
Class A licensing. RCC also claims that the Order is
unconstitutional because it (1) impermissibly regulates
local economic activity in violation of the Commerce
Clause; (2) impermissibly delegates legislative authority
to a private party, Nielsen; and (3) impermissibly restricts
a Class A license applicant’s programming content as
part of its requirements for Class A eligibility in violation
of the First Amendment. Lastly, RCC argues that the
Order is unlawful because it does not extend “must carry
rights” - the requirement that cable systems carry certain
television stations — to Class A licensees.
We are unpersuaded by RCC’s arguments. The FCC’s
Order adheres to the best reading of the statute: A LPTV
station must operate in a DMA with not more than 95,000
television stations to be eligible for a Class A license. The
agency properly defined DMA according to Nielsen’s data,
as expressly authorized by Congress. Nowhere in the
statute does Congress reference “community of license,”
nor are communities of license equivalent systems to
4a
Appendix A
DMAs such that they can be adopted for determining
Class A eligibility. See LPPA § 2(a)(2). Rather, the two
metrics serve distinct purposes — a “community of
license” determines area of license and a DMA determines
area of Class A eligibility. Thus, by the terms of the
statute, and as implemented by the Order, RCC’s station
is not eligible for Class A status because it operates in a
DMA — the Hartford-New Haven DMA — with more than
95,000 television households. This reading of the statute
is consistent with section 307(b) of the Communications
Act, and it runs afoul of neither the commerce clause nor
the nondelegation doctrine.
Finally, because RCC is ineligible for a Class A license
based on the DMA size requirement, we need not consider
RCC’s separate argument regarding the constitutionality
of the FCC’s local programming requirements, nor RCC’s
argument that the FCC improperly denied must carry
rights to Class A licensees. A favorable holding on either
issue would not render RCC’s station eligible for a Class
A license.
Accordingly, we deny RCC’s petition for review.
I.
A.
Background
Statutory Background
The FCC is governed by the Communications Act
of 1934. See 47 U.S.C. § 151 et seq. The Act endows the
Commission with broad licensing and regulatory authority,
and its purpose is to provide “a unified and comprehensive
5a
Appendix A
regulatory system for the [broadcasting] industry.” FCC
v. Pottsville Broad. Co., 309 U.S. 134, 137, 60 S. Ct. 437,
84 L. Ed. 656 (1940). As relevant here, section 307(b) of
the Act provides, in pertinent part:
In considering applications for licenses . . . when
and insofar as there is demand for the same,
the Commission shall make such distribution
of licenses, frequencies, hours of operation,
and of power among the several States and
communities as to provide a fair, efficient, and
equitable distribution of radio service to each
of the same.
47 U.S.C. § 307(b).
As may be seen, this provision generally directs the
FCC to distribute broadcast resources in a fair, efficient,
and equitable manner. See, e.g., New Radio Corp. v. FCC,
804 F.2d 756, 757, 256 U.S. App. D.C. 211 (D.C. Cir. 1986)
(“[W]here two or more mutually exclusive applicants have
specified different communities of license, the FCC must
determine the relative need [of] each applicant’s proposed
service area.”). As relevant here, this provision relies on
a concept, “community of license,” which refers to “the
community that [a] station is licensed to serve” under the
statute. ADX Commc’ns of Pensacola v. FCC, 794 F.3d 74,
77, 417 U.S. App. D.C. 232 (D.C. Cir. 2015).
In 1982, the FCC began licensing LPTV stations to
expand service in unserved and underserved areas. See
Order, 38 FCC Rcd. at 12628 ¶ 2. Whereas full power
6a
Appendix A
television stations provide service to viewers located in
larger service areas, LPTV stations broadcast service
at a low transmitter power output and provide television
service to viewers in smaller geographic areas. Because
they operate at reduced power levels, LPTV stations can
be fit into areas where a higher power station cannot be
accommodated. See id. at 12628 ¶ 3.
From its inception, low power television service has
been restricted to secondary priority, meaning that LPTV
stations “may not cause interference to, and must accept
interference from, full power television stations.” Id. at
12628 ¶ 2. “As a result of their secondary status, LPTV
stations can also be displaced by full power stations that
seek to expand their service area, or by new full power
stations seeking to enter the same area as an LPTV
station.” Id. at 12628 ¶ 2 n.5.
In the Community Broadcasters Protection Act of
1999, Congress directed the FCC to create a set of Class
A television licenses, which protect LPTV stations from
the interference of full power stations. See Pub. L. No.
106-113, § 5008, 113 Stat. 1501 (1999). To obtain a Class
A license under the Community Broadcasters Protection
Act, LPTV stations had to meet certain criteria and apply
for a license within a set time frame. See id.
In January 2023, Congress enacted the LPPA, which
like the Community Broadcasters Protection Act before it,
provides LPTV stations with an opportunity to apply for
Class A licenses if they meet certain eligibility criteria. See
LPPA § 2(c)(2)(B). As relevant here, the LPPA authorizes
7a
Appendix A
the Commission to approve Class A license applications
only from LPTV stations that, “as of the date of enactment
of [the LPPA], operate[] in a Designated Market Area with
not more than 95,000 television households.” Id. § 2(c)(2)
(B)(iii). The LPPA states that a “Designated Market
Area” means either “(A) a Designated Market Area
determined by Nielsen Media Research or any successor
entity; or (B) a Designated Market Area under a system
of dividing television broadcast station licensees into local
markets using a system that the Commission determines
is equivalent to the system established by Nielsen Media
Research.” Id. § 2(a)(2). Eligible LPTV stations must apply
for a Class A license within a year of the date when the
FCC’s rule implementing the LPPA becomes effective.
Id. § 2(c)(2)(A).
B. Factual and Procedural History
On December 12, 2023, the FCC issued the Order,
which implements the LPPA by, inter alia, setting the
specific criteria pursuant to which LPTV stations qualify
for Class A licenses. As relevant here, the Order adopted
the language of the 95,000-size limitation verbatim. Order,
38 FCC Rcd. at 12643-44 ¶¶ 33-34, 12647 ¶ 38. It also
provides that the FCC will use Nielsen’s Local TV Report
— a collection of data on local television markets — to
determine a station’s DMA. Id. at 12644 ¶ 35. In choosing
to use Nielsen’s data to determine a LPTV station’s DMA,
the FCC reasoned in the Order that this approach was fully
consistent with the LPPA which contemplates the use of
Nielsen. Id. The FCC also reasoned that RCC’s proposed
alternative — the community of license system — was
8a
Appendix A
not “equivalent” to the system established by Nielsen,
which defines larger geographic regions than community
of license, and thus would contravene the statute’s plain
command to use Nielsen DMAs or an equivalent system.
Id. at 12648-49 ¶ 40 (quoting LPPA § 2(a)(2)(B)). The
Order also requires that Class A license applicants carry
a certain amount of “locally produced programming” in
the ninety days preceding the statute’s effective date to
be eligible for the Class A status upgrade. See Order, 38
FCC Rcd. at 12635 ¶¶ 18-19; LPPA § 2(c)(2)(B)(i)(I).
The choice between a DMA and a community of license
for determining eligibility makes a difference for RCC’s
station, W24EZ-D. RCC’s station is licensed to serve
Allingtown, a neighborhood of West Haven, Connecticut,
which has fewer than 15,000 television households.
However, RCC’s station is part of the Hartford-New
Haven DMA which has approximately one million
television households, far exceeding the 95,000-households
statutory limit. Thus, under the FCC’s reading of the
LPPA, RCC’s station is ineligible for a Class A license.
RCC submitted comments dur ing the FCC’s
rulemaking proceedings opposing parts of the FCC’s
proposed rule, which were ultimately adopted in the
Order. For instance, RCC argued that determining
Class A license eligibility based on Nielsen’s data was
“nonsensical” because 177 out of the 210 DMAs in
Nielsen’s Local TV Report had more than 95,000 television
households; thus, most LPTV stations in the country would
not qualify for Class A licenses. See Order, 38 FCC Rcd.
at 12647 ¶ 38. In rejecting RCC’s argument that using
9a
Appendix A
Nielsen’s data unduly restricted the number of LPTV
stations that would qualify for Class A licenses, the FCC
stated in the Order that “Congress clearly intended that
eligibility under the LPPA be limited, as the Act expressly
provides that eligibility is limited to DMAs with no more
than 95,000 TV households.” Id. FCC maintains that its
rule is consistent with Congress’s instructions, as set out
in the LPPA.
On January 10, 2024, RCC filed a timely petition for
review of the Order. See 47 U.S.C. § 402(c).
II.
A.
Analysis
Standard of Review
Under the Administrative Procedure Act (“APA”), we
will hold unlawful and set aside final agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). In
determining whether an agency’s interpretation of its
governing statute is contrary to law, we must exercise
our “independent judgment” and “apply[] all relevant
interpretive tools” to reach “the best reading of the
statute.” Loper Bright Enters. v. Raimondo, 603 U.S.
369, 394, 400, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024).
Congress may “confer discretionary authority on agencies
. . . subject to constitutional limits.” Id. at 404. “[T]o stay
out of discretionary policymaking left to the political
branches, [reviewing courts] need only fulfill their
obligations under the APA to independently identify and
respect such delegations of authority, police the outer
10a
Appendix A
statutory boundaries of those delegations, and ensure
that agencies exercise their discretion consistent with
the APA.” Id.
B. Standing
To establish Article III standing, a plaintiff must show
(1) injury in fact that is concrete and particularized and
actual or imminent rather than conjectural or hypothetical,
(2) causation fairly traceable to the defendant’s challenged
action and (3) redressability by a favorable decision that
is likely as opposed to merely speculative. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119
L. Ed. 2d 351 (1992).
RCC has Article III standing to challenge the Order’s
size limitation for Class A eligibility. RCC is the holder of
a LPTV broadcast license which is “directly and adversely
affected” by the Commission’s eligibility rules as set out in
the Order. Viasat, Inc. v. FCC, 47 F.4th 769, 781, 459 U.S.
App. D.C. 49 (D.C. Cir. 2022) (internal quotation marks
and citation omitted). Specifically, FCC’s interpretation
and implementation of LPPA section 2(c)(2)(B)(iii) renders
RCC ineligible to receive a Class A license upgrade. Such
an upgrade comes with substantial economic benefits,
including protection from the interference of full power
stations. The Order’s denial of these economic benefits
to RCC by the terms of its rules can be remedied by a
favorable ruling from this court regarding the legality of
the Order.
11a
Appendix A
C.
Class A License Eligibility
The LPPA’s plain text is clear. It sets specific
eligibility criteria for LPTV stations seeking Class A
status: “The Commission may approve an application . . .
if the low power TV station submitting the application . . .
satisfies” the listed requirements, including that, at the
time of enactment, it “operates in a Designated Market
Area with not more than 95,000 television households.”
LPPA § 2(c)(2)(B). RCC’s station operates in a Designated
Market Area — the Hartford-New Haven DMA — with
more than 95,000 TV households. Thus, by the clear terms
of the statute, RCC’s station is ineligible for a Class A
license.
Yet, RCC argues that the statute’s limitation of “95,000
television households” refers to a station’s community of
license, and not to the number of households in the station’s
DMA. In other words, RCC reads the operative text as
requiring the eligible LPTV station (1) to “operate in a
DMA” of any size and (2) to service a community of license
“with not more than 95,000 television households.” Unlike
“Designated Market Area,” however, “community of
license” appears nowhere in the eligibility requirements
or the LPPA. Instead, RCC seeks to import “community
of license” from section 307(b) of the Communications Act.
RCC’s convoluted reading of these statutory provisions
is plainly incorrect.
“As with all questions of statutory interpretation, we
start with the text.” Pharm. Mfg. Rsch. Servs., Inc. v.
12a
Appendix A
FDA, 957 F.3d 254, 260, 446 U.S. App. D.C. 362 (D.C. Cir.
2020). The phrase “95,000 television households” modifies
the immediately preceding “Designated Market Area,”
not the phrase “community of license,” which appears
nowhere in the LPPA, nor the phrase “the low power TV
station submitting the application,” which appears much
earlier in the statute. See Lockhart v. United States, 577
U.S. 347, 351, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016) (“[A]
limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately
follows.” (citations omitted)).
RCC’s alternative reading of the statute — pursuant
to which “95,000 television households” modifies the
community that the station is licensed to serve — would
render the Designated Market Area language nearly
superfluous. See Pub. Citizen, Inc. v. Rubber Mfrs. Ass’n,
533 F.3d 810, 816, 382 U.S. App. D.C. 338 (D.C. Cir. 2008)
(explaining that courts should “if possible, . . . construe
a statute so as to give effect to every clause and word”
(cleaned up)). Every television station located in the lower
48 states falls within one of Nielsen’s DMAs. Thus, under
RCC’s reading of the LPPA, the statute’s requirement that
a station applying for a Class A license fall within a DMA
would serve no purpose. The best reading of the statute,
giving effect to every clause and word, is that Class A
license eligibility is limited by the size of a station’s DMA.
Moreover, we have no reason to believe that Congress
intended for the FCC to adopt an alternative community
of license metric, found in a different statute, when it
specifically provided and defined, in the operative statute,
13a
Appendix A
the geographic metric to be used in determining Class
A eligibility: “Designated Market Area determined by
Nielsen Media Research” or some “equivalent.” LPPA
§ 2(a)(2); see also Rawat v. Comm’r, 108 F.4th 891, 895 (D.C.
Cir. 2024) (“Statutory definitions are virtually conclusive
of statutory meaning.” (internal quotation marks and
citation omitted)). Where Congress did intend to rely on
the Communications Act, such as by incorporating some
of its requirements, Congress referenced that statute and
specific, relevant provisions explicitly. See LPPA § 2(c)(2)
(B)(i)-(ii). When discussing the size limitation, however,
Congress made no mention of the Communications Act,
referring only to “Designated Market Area,” which it had
defined earlier, instead. Id. § 2(c)(2)(B)(iii).
Furthermore, although the LPPA does authorize the
agency to adopt an alternative system, that system must
be equivalent to the one defined by reference to Nielsen’s
data. See id. § 2(a)(2)(B). Section 307(b)’s “community of
license” does not provide for an equivalent system, as
RCC itself recognizes, and thus was not a viable option
for the FCC to adopt. See Pet’r’s Final Br. 13 (describing
Nielsen’s DMA as much “larger geographic regions” than
section 307(b)’s community of license); see also Order, 38
FCC Rcd. at 12648-49 ¶ 40 (quoting LPPA § 2(a)(2)(B)).
Unable to account for the statute’s plain text, RCC
turns to the statute’s purpose. RCC argues that the
Commission’s interpretation of the LPPA to restrict
Class A licenses to only certain LPTV stations conflicts
with the statute’s general purpose, which RCC argues is
to protect LPTV stations nationwide. RCC significantly
14a
Appendix A
overreads the LPPA’s purpose. The LPPA does not
provide unbounded protection for LPTV stations. Rather,
its purpose is to provide LPTV stations “with a limited
window of opportunity to apply for” Class A licenses.
LPPA § 2(b). Moreover, by setting out specific eligibility
criteria, Congress clearly did not intend for any and all
LPTV stations to benefit from the statute — only those
that meet the statutory requirements. In any event, even
if RCC is correct that a larger purpose of the statute is
to expand Class A licensing as broadly as possible across
the nation, “the statute’s larger purpose alone does
not warrant departing from the [statute’s] text.” Eagle
Pharms., Inc. v. Azar, 952 F.3d 323, 334, 445 U.S. App.
D.C. 447 (D.C. Cir. 2020).
Thus, with no support in the LPPA for its position,
RCC turns to the separate but related Communications
Act. RCC reads section 307(b) of the Act as mandating
nationwide Class A licensing. That provision, however,
does not support RCC’s reading. Section 307(b) generally
“empowers the Commission to allow licenses so as to
provide a fair distribution among communities.” FCC
v. Allentown Broad. Corp., 349 U.S. 358, 362, 75 S. Ct.
855, 99 L. Ed. 1147 (1955). It also directs the Commission
to evaluate fair distribution of broadcast resources in
certain circumstances — for example, “[w]hen multiple
applicants seek mutually exclusive licenses to operate a
noncommercial educational . . . radio station.” Mary V.
Harris Found. v. FCC, 776 F.3d 21, 22, 414 U.S. App. D.C.
22 (D.C. Cir. 2015). Section 307(b) does not specifically
address LPTV stations, let alone guarantee Class A
status to LPTV stations on a nationwide basis. Rather, in
15a
Appendix A
pursuing section 307(b)’s general aims, the Commission is
bound by the express limitations set out in the LPPA: to
restrict Class A eligibility by the size of a station’s DMA,
defined according to Nielsen’s data. Nothing in the general
language of section 307(b) requires the Commission to
override this clear instruction from Congress.
RCC also argues that the Order “effectively reassigns
. . . LPTV licenses . . . from their small Section 307(b)
communities of license to much larger . . . DMAs.” Pet’r’s
Final Br. 10. This argument is without merit. As the
FCC explained, the use of DMAs to determine Class A
eligibility is wholly unrelated to the concept of communities
of license under section 307(b). See Order, 38 FCC Rcd. at
12649 ¶ 40 n.187 (rejecting RCC’s reassignment argument
because “[the Commission’s] decision . . . relates only
to implementation of the LPPA, and does not affect the
communities LPTV stations are licensed to serve”). In
other words, how the Commission defines a station’s DMA
for the purpose of Class A eligibility does not affect the
station’s area of licensing or otherwise alter its LPTV
license. The two provisions and the two statutes are
distinct.
RCC also challenges the FCC’s interpretation of the
LPPA as inadequately explained. This claim fails because
the interpretation is legally compelled: The challenged
provisions of the Order are a direct implementation of the
statutory text. Moreover, the Commission explained, by
reference to the statute, why it limited Class A eligibility
to LPTV stations in DMAs with no more than 95,000 TV
households. See id. at 12643-44 ¶¶ 33-34. The Commission
16a
Appendix A
also considered alternative systems for demarcating local
markets and found that they raised a variety of issues or
were not equivalent to Nielsen’s DMAs and, thus, could not
be used. See id. at 12644-49 ¶¶ 35-40. The Commission’s
explanation of its decision-making was thus more than
adequate.
More generally, RCC suggests that the Commission
failed to respond to all of its arguments raised in
comments. We disagree. On the record before it, the
Commission provided ample substantive reasons for
rejecting the principal arguments that RCC raised. See,
e.g., id. at 12647-49 ¶¶ 38-40. Any “failure to respond to
comments is significant only insofar as it demonstrates
that the agency’s decision was not based on a consideration
of the relevant factors.” Thompson v. Clark, 741 F.2d
401, 409, 239 U.S. App. D.C. 179 (D.C. Cir. 1984) (internal
quotation marks and citation omitted). No such concern
exists in this case.
With respect to the constitutional issues raised by
RCC, those matters have been raised with this court and
are addressed in this opinion. See Loper Bright, 603 U.S.
at 391 (emphasizing that it is the role of “the reviewing
court” to “interpret constitutional . . . provisions”);
Oestereich v. Selective Serv. Sys. Local Bd. No. 11, 393 U.S.
233, 242, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968) (Harlan, J.,
concurring in result) (“Adjudication of the constitutionality
of congressional enactments has generally been thought
beyond the jurisdiction of administrative agencies.”).
17a
Appendix A
Lastly, RCC raises a variety of concerns that
ultimately amount to policy disagreements. For example,
RCC complains that restricting eligibility based on DMAs
would “deny Class A licenses covering more than 98% of
the Nation’s population.” Pet’r’s Final Br. 38-39. However,
as the agency explained, “while 98 percent of television
households may fall outside eligible Designated Market
Areas, 33 out of 210 Designated Market Areas fall within
the statute’s 95,000 television household threshold.” Br.
for Resp’ts 25. The LPPA concerns LPTV stations that
service small areas with low populations and, thus, by its
terms excludes huge swaths of this nation’s population
from its scope. Congress also further limited upgrades
under the LPPA to stations in certain areas within that
universe of small geographic regions, further reducing
the number of households affected. To the extent RCC
is dissatisfied with this arrangement, its concerns are
better levied at Congress, which set out the eligibility
requirements, than at the Commission, which faithfully
executed them.
D.
Constitutional Challenges
RCC argues that the FCC interpreted the LPPA in an
unconstitutional manner as (1) regulating local economic
activity beyond the scope of the interstate commerce
clause and as (2) delegating legislative authority to a
private, non-governmental entity, Nielsen. Accordingly,
RCC asks this court to adopt its reading of the statute
in order to avoid these alleged constitutional issues. We
decline to do so because the agency’s reading of the statute
18a
Appendix A
is entirely consistent with the statute, which raises no such
constitutional concerns.
As discussed above, the plain language of the
LPPA compels the agency’s interpretation. RCC
does not separately challenge the LPPA itself as
unconstitutional. However, because the statute and the
agency’s interpretation are effectively indistinguishable,
RCC’s constitutional challenges are ultimately about the
statute and whether its regulatory scheme runs afoul of
the commerce clause or nondelegation doctrine. We find
that it does not.
First, in enacting the LPPA, Congress acted well
within its power to regulate commerce. The Supreme
Court “ha[s] long recognized that Congress, acting
pursuant to the Commerce Clause, has power to regulate
the use of” broadcast communications, including television
broadcasting. FCC v. League of Women Voters of Cal., 468
U.S. 364, 376, 104 S. Ct. 3106, 82 L. Ed. 2d 278 (1984). A
feature of broadcasting is that it crosses state lines, and
in approving specific local stations for status upgrades,
Congress is acting to regulate the interstate broadcast
market more broadly, not just local activity. Moreover,
Congress has the power to regulate local activity that,
when aggregated with similar activities of others, has
a substantial effect on interstate commerce. See Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549, 132
S. Ct. 2566, 183 L. Ed. 2d 450 (2012); United States v.
Sullivan, 451 F.3d 884, 888, 371 U.S. App. D.C. 369 (D.C.
Cir. 2006). The local activity at issue in this case belongs
to an economic class of activities — television broadcasting
19a
Appendix A
— that has a substantial effect on interstate commerce,
making it wholly within the scope of Congress’s legislative
power.
Second, RCC’s argument that the “DMA market
structure . . . is unconstitutional” because it “improperly
delegates leg islative authority to a private, nongovernmental entity” is without merit. Pet’r’s Final Br.
42. Neither Congress nor the FCC delegated legislative
authority to Nielsen by defining the phrase “Designated
Market Area” by reference to that private company’s
system of designating television markets. The LPPA
and the Order merely refer to and incorporate Nielsen’s
data for the limited purpose of determining a Class A
license applicant’s DMA at a single moment in time.
Our case law suggests that agencies are free to rely on
private entities to provide factual information. See U.S.
Telecom Ass’n v. FCC, 359 F.3d 554, 567, 360 U.S. App.
D.C. 202 (D.C. Cir. 2004) (“[A] federal agency may use an
outside entity, such as a . . . private contractor, to provide
the agency with factual information.”); see also Am.
Soc’y for Testing & Materials v. Public.Resource.Org,
Inc., 82 F.4th 1262, 1265, 463 U.S. App. D.C. 293 (D.C.
Cir. 2023) (recognizing that “agencies may incorporate
privately developed standards into law by referencing
them in agency rulemaking”). And the Commission has
“long relied on Nielsen DMA data to define television
markets,” Order, 38 FCC Rcd. at 12644 ¶ 35, in part
because Nielsen’s market assignments “provide the most
accurate method for determining the areas served by
local stations,” In the Matter of Definition of Markets for
Purposes of the Cable Television Mandatory Television
20a
Appendix A
Broadcast Signal Carriage Rules, 11 FCC Rcd. 6201, 6220
¶ 39 (1996). Doing so here at Congress’s direction violated
no constitutional principle.
To conclude, we find no daylight between the agency’s
Order and the text of the statute. Thus, by challenging the
agency’s interpretation of the statute as unconstitutional,
RCC is effectively challenging the constitutionality of the
statute. We find these challenges to be without merit.
E. Final Considerations
Because RCC is ineligible for a Class A license based
on the DMA size requirement, we need not consider RCC’s
separate argument regarding the constitutionality of
the FCC’s local programming requirements, nor RCC’s
argument that the FCC improperly denied must carry
rights to Class A licensees.
First, the local programming requirements present
a separate and additional hurdle to a Class A license
upgrade. RCC’s station has already failed at the first
hurdle — the DMA size requirement — and, thus, we
have no need to rule on the next hurdle, particularly
when it raises a constitutional question. See Syracuse
Peace Council v. FCC, 867 F.2d 654, 657, 276 U.S. App.
D.C. 38 (D.C. Cir. 1989) (“[I]t is an elementary canon that
American courts are not to ‘pass upon a constitutional
question . . . if there is also present some other ground
upon which the case may be disposed of.’” (alteration in
original) (citation omitted)); see also Saga Broad. Corp. v.
FCC, 38 F. App’x 8, 11 (D.C. Cir. 2002) (“[I]f the Maryland
21a
Appendix A
stations are ineligible for Class A status regardless [of]
whether the challenged requirements are vacated, then
a decision in [petitioner’s] favor will not redress the harm
of which he complains.”).
Second, even if we were to require the FCC to extend
must carry rights to Class A licensees, RCC’s station
would be ineligible to receive such rights because it is
ineligible for a Class A license. RCC thus lacks standing
to bring a challenge to the agency’s position on must carry
rights.
III.
Conclusion
For the foregoing reasons, we deny the petition for
review.
So ordered.
22a
Appendix B OF THE UNITED
APPENDIX B — JUDGMENT
STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, FILED JUNE 27, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-1004
September Term, 2024
RADIO COMMUNICATIONS CORPORATION,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
Respondents.
Filed On: June 27, 2025
On Petition for Review of an Order of
the Federal Communications Commission
Before: K atsas and Childs, Circuit Judges, and
Edwards, Senior Circuit Judge
JUDGMENT
This cause came to be heard on the petition for review
of an order of the Federal Communications Commission
and was argued by counsel. On consideration thereof, it is
23a
Appendix B
ORDERED and ADJUDGED that the petition for
review be denied, in accordance with the opinion of the
court filed herein this date.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY:
/s/
Daniel J. Reidy
Deputy Clerk
Date: June 27, 2025
Opinion for the court filed by Senior Circuit Judge Edwards.
24a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, FILED JUNE 27, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-1004
September Term, 2024
FCC-23-112
RADIO COMMUNICATIONS CORPORATION,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
Respondents.
Filed On: June 27, 2025
BEFORE: Katsas and Childs, Circuit Judges;
Edwards, Senior Circuit Judge
ORDER
Upon consideration of petitioner’s motion to strike
FCC’s November 22, 2024 response; and petitioner’s
motions for judicial notice, it is
25a
Appendix C
ORDERED that the motions be dismissed as moot in
light of the court’s opinion issued herein this date.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY:
/s/
Daniel J. Reidy
Deputy Clerk
26a
Appendix
D ORDER OF THE
APPENDIX D — REPORT
AND
FEDERAL COMMUNICATIONS COMMISSION,
RELEASED DECEMBER 12, 2023
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
MB Docket No. 23-126
IN THE MATTER OF IMPLEMENTATION
OF THE LOW POWER PROTECTION ACT
REPORT AND ORDER
Adopted: December 11, 2023
Released: December 12, 2023
By the Commission:
[TABLE INTENTIONALLY OMITTED]
I.
INTRODUCTION
1. In this Report and Order, we adopt rules to
implement the Low Power Protection Act (LPPA or
Act),1 which was enacted on January 5, 2023. The LPPA
provides certain low power television (LPTV) stations
with a limited window of opportunity to apply for primary
1. Low Power Protection Act, Pub. L. 117-344, 136 Stat. 6193
(2023).
27a
Appendix D
spectrum use status as Class A television stations. 2
With limited exceptions, the rules adopted herein are
consistent with the Commission’s proposals in the Notice
of Proposed Rulemaking (NPRM)3 in this proceeding. In
this Order, we further the implementation of the LPPA
by establishing the period during which eligible stations
may file applications for Class A status, eligibility and
interference requirements, and the process for submitting
applications.
II. BACKGROUND
A.
Low Power Television Service
2. The Commission created the LPTV service in
1982 to bring television service, including local service,
to viewers “otherwise unserved or underserved” by
existing full power service providers.4 From its creation,
2. LPPA Sec.2(b).
3. See Implementation of the Low Power Protection Act, MB
Docket No. 23-126, Notice of Proposed Rulemaking, FCC 23-23
(rel. March 30, 2023) (NPRM).
4. Inquiry Into the Future Role of Low Power Television
Broadcasting and Television Translators in the National
Telecommunications System, BC Docket No. 78-253, Notice
of Proposed Rulemaking, 82 F.C.C.2d 47, para. 1 (1980) (LPTV
NPRM); Low Power Television Service, Report and Order, 51
R.R.2d 476 (1982) (LPTV Order), recon. granted in part, 48
Fed. Reg. 21478 (1983). The low power television service consists
of LPTV and TV translator stations. LPTV and TV translator
stations differ only in the amount of programming they may
originate. LPTV stations are not limited in the amount of
28a
Appendix D
the LPTV service has been a secondary service, meaning
LPTV stations may not cause interference to, and must
accept interference from, full power television stations
as well as certain land mobile radio operations and other
primary services. 5
3. Currently, there are 1,889 licensed LPTV stations.6
These stations operate in all states and territories, and
serve both rural and urban audiences.7 LPTV stations
were required to complete a transition from analog to
digital operation in 2021, and all such stations must
programming they may originate. TV translators may originate
only emergency warnings of imminent danger no longer or more
frequent than necessary to protect life and property and, in
addition, not more than thirty seconds per hour of public service
announcements and material seeking and acknowledging financial
support necessary to the continued operation of the station. See
47 CFR § 74.790 (Permissible service of TV translator and LPTV
stations).
5. LPTV Order, 51 R.R.2d at para. 17. As a result of their
secondary status, LPTV stations can also be displaced by full
power stations that seek to expand their service area, or by new
full power stations seeking to enter the same area as an LPTV
station.
6. See Broadcast Station Totals as of September 30, 2023,
Public Notice, DA 23-921 (rel. Oct. 3, 2023), available at https://
docs.fcc.gov/public/attachments/DA-23-921A1.pdf (http://fcc.gov).
7. See Establishment of a Class A Television Service, MM
Docket No. 00-10, Report and Order, 15 FCC Rcd 6355, 6357-58,
para. 2 (2000) (Class A Order), recon. granted in part, 16 FCC
Rcd 8244 (2001) (Class A MO&O).
29a
Appendix D
now operate in digital format. 8 As the name suggests,
LPTV stations have lower authorized power levels than
full power television stations. 9 Because they operate
at reduced power levels, LPTV stations serve a much
smaller geographic region than full power stations and
can be fit into areas where a higher power station cannot
be accommodated in the Table of TV Allotments.10
B. Class A Television Stations
4. In 2000, the Commission established a Class
A television service11 to implement the Community
Broadcasters Protection Act of 1999 (CBPA).12 The CBPA
allowed certain qualifying LPTV stations to become
8. LPTV stations were required to complete their digital
transition as of July 13, 2021. See Media Bureau Reminds Low
Power Television and Television Translator Stations of July 13,
2021, Digital Transition Date, Public Notice, 36 FCC Rcd 4771
(MB 2021).
9. See 47 CFR §§ 74.735(a), 73.622(a)(1); Class A Order, 15
FCC Rcd at 6357, n.4; NPRM at n.8 (noting that LPTV signals
typically extend approximately 20 to 40 miles from a station’s
transmission site, while the signals of full power stations can reach
as far as 60 to 80 miles).
10. Unlike full power stations, LPTV stations are not
restricted to operating on a channel specified in a table of
allotments.
11. See Class A Order, 15 FCC Rcd 6355.
12. Community Broadcasters Protection Act of 1999, Pub.
L. No. 106-113, 113 Stat. Appendix I at pp. 1501A-594-1501A-598
(1999), codified at 47 U.S.C. § 336(f).
30a
Appendix D
Class A stations, which provided those television stations
primary status, and thereby a measure of interference
protection from full service television stations.13
5. Congress sought in the CBPA to provide certain
LPTV stations a limited window of opportunity to apply
for primary status. Among other matters, the CBPA
set out certain certification and application procedures
for LPTV licensees seeking Class A designation and
prescribed the criteria for eligibility for a Class A
license. Specifically, under the CBPA, an LPTV station
could qualify for Class A status if, during the 90 days
preceding the date of enactment of the statute, the
station: (1) broadcast a minimum of 18 hours per day;
(2) broadcast an average of at least 3 hours per week of
programming produced within the market area served
by the station, or the market area served by a group
of commonly controlled low-power stations that carry
common local programming produced within the market
area served by such group; and (3) was in compliance with
the Commission’s requirements for LPTV stations.14 In
addition, the CBPA required that, from and after the date
of its application for a Class A license, the station must be
in compliance with the Commission’s operating rules for
full power television stations.15 As directed by the CBPA,
within 60 days of the date of enactment of the CBPA,
stations seeking Class A status were required to submit
13. See Class A Order, 15 FCC Rcd 6355, para. 1.
14. 47 U.S.C. § 336(f)(2)(A)(i).
15. 47 U.S.C. § 336(f)(2)(A)(ii).
31a
Appendix D
to the Commission a certification of eligibility based on
the applicable qualification requirements.16
6. In addition to these qualifying requirements, the
CBPA gave the Commission discretion to determine that
the public interest, convenience, and necessity would
be served by treating a station as a qualifying LPTV
station under the CBPA, or that a station should be
considered to qualify for such status for other reasons
determined by the Commission, even if it did not meet the
qualifying requirements in the statute discussed above.17
In implementing the CBPA, the Commission concluded,
however, that it would not accept applications under the
CBPA from LPTV stations that did not meet the statutory
criteria and that did not file a certification of eligibility by
the statutory deadline, absent compelling circumstances.18
C.
Low Power Protection Act
7. Like the CBPA , the LPPA is intended “ to
provide low power TV stations with a limited window of
opportunity” to apply for primary status as a Class A
16. 47 U.S.C. § 336(f)(1)(B). In addition, the Commission
required LPTV licensees seeking Class A designation to submit an
application to the Commission within 6 months after the effective
date of the rules adopted in the Class A proceeding. See Class A
Order, 15 FCC Rcd at 6362, paras. 13-14.
17. 47 U.S.C. § 336(f)(2)(B).
18. See Class A Order, 15 FCC Rcd at 6361, para. 11.
32a
Appendix D
television licensee.19 The Act gives LPTV stations one
year to apply for a Class A license, from the date that
the Commission’s rules implementing the LPPA become
effective. 20
The LPPA sets forth eligibility criteria for stations
seeking Class A designation that are similar to the
eligibility criteria under the CBPA, as discussed above.
Specifically, the LPPA provides that the Commission “may
approve” an application submitted by an LPTV station if
the station meets the following eligibility criteria:
•
during the 90-day period preceding the date of
enactment of the LPPA (i.e., between October 7,
2022 and January 5, 2023), the station satisfied
the same requirements applicable to stations that
qualified for Class A status under the CBPA,
“including the requirements . . . with respect to
locally produced programming;” 21
19. LPPA Sec.2(b).
20. LPPA Sec.2(c)(2)(A). That provision states: “The rule
with respect to which the Commission is required to issue notice
under paragraph (1) shall provide that, during the 1-year period
beginning on the date on which that rule takes effect, a low power
TV station may apply to the Commission to be accorded primary
status as a Class A television licensee under section 73.6001 of
title 47, Code of Federal Regulations, or any successor regulation.”
LPPA Sec.2(c)(2)(A).
21. Section 2(c)(2)(B) provides: “(B) Considerations. – The
Commission may approve an application submitted under
subparagraph (A) if the low power TV station submitting the
application (i) satisfies – (I) section 336(f)(2) of the Communications
33a
Appendix D
•
the station satisf ies the Class A ser v ice
requirements in 47 CFR § 73.6001(b)-(d) or any
successor regulation;22
•
the station demonstrates that it will not cause
any interference as described in the CBPA;23
•
during that same 90-day period, the station
complied with the Commission’s requirements
for LPTV stations;24 and
•
as of January 5, 2023, the station operated in
a Designated Market Area with not more than
95,000 television households. 25
Act of 1934 . . . and the rules issued under that section, including the
requirements under such section 336(f)(2) with respect to locally
produced programming. . . .” LPPA Sec.2(c)(2)(B)(i)(I) (citing 47
U.S.C. § 336(f)(2) of the CBPA).
22. LPPA Sec.2(c)(2)(B)(i)(II). Sections 73.6001(b)-(d) of our
rules set forth service requirements and other rules for Class A
stations.
23. LPPA Sec.2(c)(2)(B)(ii); 47 U.S.C. § 336(f)(7). See also
Section III.B.3 infra (Eligibility Requirements – Interference
Requirements).
24. LPPA Sec.2(c)(2)(B)(ii). See also 47 U.S.C. § 336(f)(2)(A)
(i)(III).
25. LPPA Sec.2(c)(2)(B)(iii). The LPPA also requires the
Commission “[n]ot later than 1 year after the date of enactment” of
the LPPA to “submit to the Committee on Commerce, Science and
Transportation of the Senate and the Committee on Energy and
Commerce of the House of Representatives a report regarding the
34a
Appendix D
Finally, the LPPA requires that a station accorded Class
A status must (1) be subject to the same license terms and
renewal standards as a license for a full power television
broadcast station (except as otherwise expressly provided
in the LPPA) and (2) remain in compliance with the LPPA’s
eligibility criteria during the term of the station’s license.26
9. On March 29, 2023, the Commission adopted the
NPRM, which sought comment on how to implement the
window for LPTV stations to apply for primary spectrum
use status as Class A television stations, consistent with
Congressional direction in the LPPA. 27 We received over
thirty comments in response to the NPRM. 28
implementation” of the LPPA including: “(1) a list of the current,
as of the date on which the report is submitted, licensees that have
been accorded primary status as Class A television licensees; and
(2) of the licensees described in paragraph (1), an identification of
each such licensee that has been accorded the status described
in that paragraph because of the implementation” of the LPPA.
LPPA Sec.2(d).
26. LPPA Sec.2(c)(3). Section 2(c)(3) in its entirety provides:
“Applicability of License – A license that accords primary status
as a Class A television licensee to a low power TV station as a
result of the [rules adopted to implement the LPPA] shall (A)
be subject to the same license terms and renewal standards as
a license for a full power television broadcast station, except as
otherwise expressly provided in this subsection; and (B) require
the low power TV station to remain in compliance with paragraph
(2)(B) during the term of the license.”
27. See generally NPRM.
28. A list of the comments and reply comments is attached
as Appendix A. The Identical Comments (identified in Appendix
35a
Appendix D
III. DISCUSSION
10. The rules and policies we adopt herein to
implement the LPPA are largely consistent with the
Commission’s proposals in the NPRM, with one exception.
We adopt the proposals regarding the application period,
the definition of a low power TV station and eligibility
criteria, applicable interference requirements, and use of
the Nielsen Local TV Station Information Report (Local
TV Report) to determine the DMA where the LPTV
station’s transmission facilities are located for purposes of
eligibility. We do not, however, adopt in full the proposal
to require that all licensees that convert to Class A status
A) support the adoption of Metropolitan Statistical Areas (MSAs)
and Rural Statistical Areas (RSAs), as defined by the Office
of Management and Budget, as an alternative to Designated
Market Areas (DMAs), as defined by Nielsen Media Research, for
determining eligibility pursuant to the LPPA. See infra Section
III.B.4. (Eligibility Requirements-Designated Market Area).
RCC argues that we should discount the Identical Comments on
the ground that they do not provide information “regarding the
person or persons directing the filing of [the] common comments.”
RCC Reply Comments at 1. We reject RCC’s request. Each of the
identical comments includes the name of the individual signing
the comment, and the fact that the comments are identical is not
grounds for the Commission to ignore them. We also reject RCC’s
argument that we should discount NAB’s comments on the ground
that “NAB does not claim to represent any LPTV licensees” and its
comments “do not protect LPTV interests.” RCC Reply Comments
at 3. A party need not “represent” or seek to “protect” LPTV
licensees in order to file comments in this proceeding. Moreover,
NAB’s comments set forth its interests in this proceeding. NAB
Comments at 2-4. We therefore have considered all the comments
filed in the docket.
36a
Appendix D
pursuant to the LPPA remain in compliance with the
LPPA’s DMA eligibility requirement for the term of their
Class A license. Instead, we conclude that LPPA Class A
stations will not be required to continue to comply with
the 95,000 TV household threshold if the population in
the station’s DMA later exceeds the threshold amount
for specific reasons beyond the station’s control. Finally,
we adopt the NPRM proposals regarding the process for
applying for Class A status pursuant to the LPPA, decline
to amend our rules, as requested, to give LPPA Class
A stations must carry rights equivalent to full service
stations, and decline to adopt a requested de minimis
exception to the LPPA’s DMA eligibility requirement.
A.
Application Period
11. For the reasons discussed in the NPRM and
described below, we adopt the NPRM’s proposals
regarding the application period. In the NPRM, the
Commission proposed to provide LPTV stations a period
of one year to apply for Class A status under the LPPA. 29
The Commission also tentatively concluded that the public
interest would not be served by providing for conversion to
Class A status beyond the one year period contemplated
by the LPPA. 30 The Commission proposed, however, that,
similar to its approach in implementing the CPBA, if a
potential applicant faces circumstances beyond its control
that prevents it from filing by the application deadline, the
Commission would examine those instances on a case-by29. NPRM at para. 10.
30. Id. at para. 11.
37a
Appendix D
case basis to determine the potential applicant’s eligibility
for filing. 31 No commenter addressed these issues.
12. The LPPA provides LPTV stations a period of one
year to apply for Class A status. 32 The LPPA also provides
that the Commission may approve an application for Class
A status if the application satisfies section 336(f)(2) of the
Communications Act of 1934, as amended (which codifies
the CBPA). 33 This provision sets forth the eligibility
criteria for stations qualifying for Class A status, 34 and
gives the Commission discretion to determine whether a
station that does not satisfy such criteria should otherwise
qualify. 35 In the Class A Order, the Commission declined
31. Id.
32. LPPA Sec.2(c)(2)(A).
33. LPPA Sec.2(c)(2)(B).
34. 47 U.S.C. § 336(f )(2)(A) (providing that an LPTV
station qualifies for Class A status pursuant to the CBPA if “(A)
(i) during the 90 days preceding (the date of enactment of the
CBPA) – (I) such station broadcast a minimum of 18 hours per
day; (II) such station broadcast an average of at least 3 hours
per week of programming that was produced within the market
area served by such station, or the market area served by a group
of commonly-controlled low-power stations that carry common
local programming produced within the market area served by
such group; and (III) such station was in compliance with the
Commission’s requirements applicable to low-power television
stations; and (ii) from and after the date of its application for a
class A license, the station is in compliance with the Commission’s
operating rules for full-power television stations . . . ”).
35. 47 U.S.C. § 336(f)(2)(B) (providing that a station is a
qualifying low-power television station if “(B) the Commission
38a
Appendix D
either to expand these eligibility criteria or to allow
ongoing conversion to Class A status beyond the 6 month
window contemplated in the CBPA. 36 The Commission
reasoned that the basic purpose of the CBPA was to afford
existing LPTV stations a window of opportunity to convert
to Class A status. 37 The Commission also determined
that the intent of Congress in enacting the CBPA was to
establish the rights of a specific, already-existing group
of LPTV stations, and that the public interest would not
be served by the ongoing conversion of LPTV stations to
Class A status under the CBPA in the future. 38 Absent
comment on this issue, we find no reason to deviate from
these prior determinations and the tentative conclusions
in the NPRM that the application window will be limited
to the one-year application window specified in the
LPPA, but that we will examine on a case-by-case basis
a potential applicant’s claim that it was prevented from
filing by the application deadline due to circumstances
beyond its control.
determines that the public interest, convenience, and necessity
would be served by treating the station as a qualifying low-power
television station for purposes of this section, or for other reasons
determined by the Commission”).
36. See Class A Order, 15 FCC Rcd at 6361, para. 11. See also
Class A MO&O, 16 FCC Rcd at 8250-52, paras. 15-18.
37. See Class A Order, 15 FCC Rcd at 6361, para. 11; Class
A MO&O, 16 FCC Rcd at 8251-52, para. 18.
38. Class A MO&O, 16 FCC Rcd at 8251-52, para. 18. See
also NPRM at para. 11.
39a
Appendix D
B. Eligibility Requirements
1.
Definition of Low Power TV Station
13. A s proposed in the NPRM, we apply the
Commission’s recently updated definition of a “low power
TV station” for purposes of determining which stations are
eligible for Class A status under the LPPA. 39 The LPPA
provides that the term “low power TV station” has the
meaning given the term “digital low power TV station” in
section 74.701 of our rules, or any successor regulation.40 At
the time the LPPA was enacted, section 74.701 contained
a definition of the term “digital lower power TV station.”
As noted in the NPRM, after enactment of the LPPA, the
Commission revised that rule to remove references to
digital and analog television service, as all LPTV stations
have ceased analog operations and there is no longer
any need to differentiate between digital and analog in
the rules.41 In place of the prior section 74.701 definition,
39. NPRM at para. 12.
40. LPPA Sec.2(a)(3).
41. The Commission recently revised its rules in Parts 73 and
74, inter alia, to eliminate rules that no longer have any practical
effect given the completion of the DTV transition as well as the
post-incentive auction transition to a smaller television band with
fewer channels. See Amendment of Part 73 of the Commission’s
Rules to Update Television and Class A Television Broadcast
Station Rules, and Rules Applicable to All Broadcast Stations,
MB Docket No, 22-227, Report and Order, FCC 23-72 (rel. Sept.
19, 2023) (Part 73 Amendment R&O); Amendment of Parts 73 and
74 of the Commission’s Rules to Establish Rules for Digital Low
Power Television and Television Translator Stations, Update
40a
Appendix D
section 74.701(k) of our current rules defines a low power
TV station as: “[a] station . . . that may retransmit the
programs and signals of a television broadcast station,
may originate programming in any amount greater than
30 seconds per hour . . . and, subject to a minimum video
program service requirement, may offer services of an
ancillary or supplementary nature, including subscriptionbased services.”42 No commenter addressed this proposal.
We will apply this recently updated definition of an LPTV
station for purposes of determining which stations are
eligible for Class A status under the LPPA.
14. We adopt the tentative conclusion in the NPRM
that television translator stations are unlikely to satisfy
the eligibility requirements of the LPPA.43 As explained
in the NPRM, 44 translator stations “operate for the
purpose of retransmitting the programs and signals
of Parts 74 of the Commission’s Rules Related to Low Power
Television and Television Translator Stations, MB Docket Nos.
03-185 and 22-261, Report and Order, FCC 23-25 (rel. Apr. 17,
2023) (Parts 73 and 74 Amendment Report and Order). Among
other revisions, the Commission eliminated all analog rules
and references to analog and to out-of-core channels; updated
information such as filing dates, locations, and form numbers;
and reorganized and modified technical rules to make them more
accessible to licensees and other users. See id. Any additional rule
changes that are relevant to Class A stations will apply to stations
that converted to Class A status pursuant to the CBPA and to
stations that convert to Class A status pursuant to the LPPA.
42. 47 CFR § 74.701(k).
43. NPRM at para. 13.
44. Id.
41a
Appendix D
of a television broadcast station, without significantly
altering any characteristic of the original signal other
than its frequency and amplitude,”45 and thus, are not
permitted to “originate programming” as defined in
the rules.46 While the LPPA does not expressly require
that the locally produced content aired by a low power
station be produced by that station itself, we noted that
translators would be unlikely to qualify under the locally
produced programming provisions of the LPPA due to the
manner in which translators operate. Translator stations
are generally located outside their primary station’s
noise limited contour in order to bring service to remote
areas.47 Thus, while a translator’s primary station(s) may
be airing programming produced in the primary station’s
noise limited contour, it is unlikely that programming was
locally produced within the noise limited contour of the
translator. In addition, as explained in the NPRM, under
the CBPA the Commission specifically found that TV
translator stations were not eligible for Class A status,
and there is no indication that Congress intended to be
45. 47 CFR § 74.701(a).
46. See 47 CFR § 74.701(h) (“Local origination. Program
origination if [sic] the parameters of the program source signal,
as it reaches the transmitter site, are under the control of the low
power TV station licensee. Transmission of TV program signals
generated at the transmitter site constitutes local origination.
Local origination also includes transmission of programs reaching
the transmitter site via TV STL stations, but does not include
transmission of signals obtained from either terrestrial or satellite
microwave feeds or low power TV stations.”) (emphasis added).
47. 47 CFR § 74.787(a)(5).
42a
Appendix D
more inclusive under the LPPA.48 The sole commenter to
address this issue, News-Press & Gazette Broadcasting
(NPG), agrees that excluding television translator stations
from eligibility under the LPPA “is a practical approach
for most translators” but argues that “additional flexibility
is warranted” for TV translator stations such as NPG’s
translator.
15. KXPI-LD, Pocatello, Idaho, retransmits the
signal of full power station KIDK, (Fox), Idaho Falls,
Idaho.49 According to NPG, “KXPI-LD is classified in the
Commission’s records as a digital TV translator station,
but it functions more like an originator of programming
than a translator; it is a primary Fox Network affiliate
providing local news, weather, and information to the
Pocatello community. . . .”50 NPG argues that KXPI-LD
meets all of the LPPA’s eligibility requirements, “except
its ministerial technical classification as a digital TV
translator.” 51 NPG also argues that “the FCC’s ‘low
power TV station’ definition, Rule 74.701(k), encompasses
stations like KXPI-LD that retransmit the signal of a
TV broadcast station, and does not require program
48. NPRM at para. 13.
49. NPG Comments at 8-9.
50. Id. at 9.
51. Id. NPG’s argument is incorrect. While stations can
convert between the TV translator classification or the LPTV
classification by notifying Commission staff of the station’s
intended status, each station must ensure that it properly informs
the staff of the designation and can be designated only as either
a TV translator or an LPTV station, not both.
43a
Appendix D
origination.”52 NPG urges that the Commission permit
stations like KXPI-LD to be eligible for the Class A filing
opportunity afforded by the LPPA. 53
16. We affirm our tentative conclusion that translator
stations are unlikely to satisfy the eligibility requirements
of the LPPA. NPG’s argument that the Commission’s
definition of a low power TV station encompasses stations
like KXPI-LD that retransmit the signal of a TV broadcast
station, and does not require program origination, is
misplaced. LPAA section 2(c)(2)(B)(i)(I) requires that,
during the 90-day eligibility period, an LPTV station
must broadcast an average of at least three hours per
week of programming produced within the market area
served by the station. 54 As a translator station, KXPI-LD
retransmits the programming feed it obtains from fullpower station KIDK. NPG does not demonstrate that the
KIDK programming that KXPI-LD is retransmitting was
produced in KXPI-LD’s own noise limited contour. Thus,
NPG has failed to demonstrate how a translator station
like KXPI-LD can satisfy the requirement of LPAA
section 2(c)(2)(B)(i)(I) to broadcast an average of at least
three hours per week of programming produced within
the market area served by the translator station. 55
52. Id.
53. Id.
54. LPPA Sec.2(c)(2)(B)(i)(I).
55. While we do not preclude a translator station from
attempting to demonstrate how it satisfies the eligibility
requirements of the LPPA, we also note that KXPI-LD is in
44a
Appendix D
17. Finally, consistent with the tentative conclusion in
the NPRM, we confirm that LPTV stations that had not
completed their digital transitions prior to the beginning
of the eligibility period are not eligible to apply for Class
A designation.56 No commenter addressed this issue. Since
analog television operations are no longer permitted, any
LPTV station that has not converted to digital operation
is silent and must remain silent until such time as it
completes construction of its digital facilities. 57 The LPPA
requires that, to be eligible to convert to Class A status,
an LPTV station must meet the statutory programming
requirements for the 90-day period preceding the date
the Idaho Falls-Pocatello-Jackson DMA (see https://ustvdb.
com/seasons/2022-23/markets/) which had more than 95,000
TV households at the time the LPPA was enacted (see http://
web.archive.org /web/20230605234252 / https://ustvdb.com /
seasons/2022-23/markets/). Therefore, the station is also not
eligible for Class A status under the LPPA on that basis.
56. A small number of analog LPTV stations had not yet
completed construction of their digital facilities by July 13, 2021,
the analog termination deadline, and were granted additional time
to do so. See Amendment of Parts 73 and 74 of the Commission’s
Rules to Establish Rules for Digital Low Power Television
and Television Translator Stations, Update of Parts 74 of the
Commission’s Rules Related to Low Power Television and
Television Translator Stations, MB Docket No. 03-185, Order
and Sixth Notice of Proposed Rulemaking, 37 FCC Rcd 8173,
8174-45 at para. 4 and n.17 (2022). They have all either completed
construction or are no longer licensees of the stations that went
silent on or before the analog termination date.
57. Id. See also 47 CFR § 74.790(m).
45a
Appendix D
of enactment of the LPPA. 58 As any LPTV station that
was silent during this period would not meet these
requirements, such stations are not eligible to apply for
Class A designation under the LPPA.
2.
Eligibility Criteria
18. As noted above, 59 the LPPA sets forth eligibility
criteria for stations seeking Class A designation that
are similar to the eligibility criteria under the CBPA.
Specifically, the LPPA provides that the Commission “may
approve” an application submitted by an LPTV station if
the station, during the 90-day period preceding the date of
enactment of the LPPA, meets the same requirements in
section 336(f)(2) of the Communications Act applicable to
stations that qualified for Class A status under the CBPA,
“including the requirements . . . with respect to locally
produced programming.”60 Thus, to qualify for Class A
status, in the 90 days preceding the LPPA’s January 5,
2023 effective date (between October 7, 2022 and January
5, 2023) an LPTV station must have met the following
requirements: (1) the station must have broadcast a
minimum of 18 hours per day;61 (2) the station must have
broadcast an average of at least 3 hours per week of
programming that was produced within the market area
served by such station, or the market area served by a
58. See LPPA Sec.2(c)(2)(B)(i)(I).
59. See supra para. 8.
60. LPPA Sec.2(c)(2)(B)(i)(I).
61. 47 U.S.C. § 336(f)(2)(A)(i)(I).
46a
Appendix D
group of commonly controlled LPTV stations that carry
common local programming produced within the market
area served by such group;62 and (3) the station must have
been in compliance with the Commission’s requirements
applicable to LPTV stations.63 In addition, from and after
the date of its application for a Class A license, the station
must be in compliance with the Commission’s operating
rules for full power television stations.64
19. Locally Produced Programming. We will define
locally produced programming for purposes of the LPPA
as that “produced within the predicted noise-limited
contour (see § 73.619(c)) of a Class A station broadcasting
the program or within the contiguous predicted noiselimited contours of any of the Class A stations in a
commonly owned group.” The NPRM proposed to define
“locally produced programming” for purposes of the
LPPA in the same manner as our rules that apply to
stations that converted to Class A status pursuant to
the CBPA.65 As noted above, the LPPA requires that,
during the 90-day eligibility period, LPTV stations
must have broadcast an average of at least 3 hours per
week of programming produced within the market
area served by the station.66 The NPRM noted that the
62. 47 U.S.C. § 336(f)(2)(A)(i)(II).
63. 47 U.S.C. § 336(f)(2)(A)(i)(III). See also supra para. 8.
64. LPPA Sec.2(c)(2)(B)(i)(I); 47 U.S.C. § 336(f)(2)(A)(ii).
65. See NPRM at para. 16.
66. LPPA Sec.2(c)(2)(B)(i)(I); 47 U.S.C. § 336(f)(2)(A)(i)(II).
47a
Appendix D
Commission was in the process of updating its rules.67
Since that time, in the Part 73 Amendment R&O, the
Commission did update the definition of locally produced
programming for Class A stations as that “produced
within the predicted noise-limited contour (see § 73.619(c))
of a Class A station broadcasting the program or within
the contiguous predicted noise-limited contours of any of
the Class A stations in a commonly owned group.”68 Block
supports this proposed definition of “locally produced
programming,”69 and with the exception of REC’s request
for clarification addressed below, no other commenter
addressed this issue. As proposed in the NPRM, we will
apply this definition to define “programming produced
within the market area served by the station” for purposes
of determining eligibility for Class A status under section
2(c)(2)(B)(i)(I) of the LPPA.
20. We decline at this time to adopt REC’s proposal
that we clarify the definition of “locally produced
programming” for purposes of the LPPA.70 REC advocates
that the Commission (1) clarify that local programming
may not be repeated within the same week to satisfy the
weekly locally produced programming requirement; (2)
require that local programming be aired on the same
programming stream and not aggregated among multiple
67. See NPRM at para. 16.
68. See Part 73 Amendment R&O, at n.19 & Appx. A (Final
Regulations) at section 73.6000.
69. See Block Comments at 2.
70. See REC Comments at 3.
48a
Appendix D
streams to meet the minimum requirement; (3) clarify
that the local programming requirement need only be
satisfied on one programming stream of simultaneous
video and related audio programming; and (4) require
that the programming must be simultaneous video and
audio programming where the audio portion of the
programming directly relates to the video portion of the
programming.71 We note that the concerns underlying
REC’s proposed clarifications are equally applicable to
existing Class A stations under the CBPA. Any change
to the definition of “locally produced programming” to
address such concerns should be considered with respect
to all Class A stations, not just those stations that convert
to Class A status pursuant to the LPPA. Because the
Commission did not propose to revise the definition of
locally produced programming for purposes of Class A
stations generally, we find REC’s proposals to be outside
the scope of this proceeding. Accordingly, we decline to
pursue REC’s proposals at this time.
21. Operating Requirements. For the reasons
contained in the NPRM and discussed below, we adopt the
NPRM’s proposals related to operating requirements. The
NPRM tentatively concluded that all applicants seeking to
convert to Class A status under the LPPA must certify that
they have complied with the Commission’s requirements
for LPTV stations during the 90-day eligibility period.72
71. Id.
72. See NPRM at para. 17. As noted in para. 8 above, to
qualify for Class A status under the LPPA, an LPTV station must
have been in compliance with the Commission’s requirements for
49a
Appendix D
The NPRM also proposed that a station applying to
convert to Class A status must comply, beginning on the
date of its application for a Class A license and thereafter,
with the same Commission Part 73 operating rules that
apply to Class A stations that converted pursuant to the
CBPA.73 This includes the requirement that existing
Class A stations comply with children’s programming
and online public inspection file (OPIF) regulations.74 No
LPTV stations during the 90-day eligibility period. The LPTV
requirements are set forth in Title 47, Part 74, Subpart G of our
rules.
73. See NPRM at para. 18. See also LPPA Sec.2(c)(2)(B)(i)
(I); 47 U.S.C. § 336(f)(2)(A)(ii).
74. See 47 CFR § 73.6026 (listing broadcast regulations
applicable to Class A television stations). This rule includes cross
references to 47 CFR §§ 73.670 (Commercial limits in children’s
programming) and 73.671 (Educational and informational
programming for children) as applying to Class A stations. See
also 47 CFR § 73.3526 (Online public inspection file of commercial
stations) which requires Class A licensees to maintain an online
public file, including a political file. In the Class A Order that
implemented the CBPA, the Commission determined certain Part
73 rules would apply to applicants for Class A status and to stations
awarded Class A licenses. See Class A Order, 15 FCC Rcd at 6365,
para. 23; 47 CFR § 73.6026 (listing Part 73 rules that do apply
to Class A stations). Class A stations are not required to comply
with certain other regulations that could not apply for technical
reasons, such as the full power principal city coverage requirement
currently set forth in 47 CFR § 73.625(a). Instead, Class A stations
must comply with maximum power levels applicable to LPTV
stations. Class A Order, 15 FCC Rcd at 6367-68, paras. 28-29.
Some other examples of rules that cannot apply to Class A stations
for technical reasons include, 47 CFR §§ 73.622(f)(5) (the so-called
“largest station in the market” rule); 73.616 (Post-transition DTV
50a
Appendix D
commenter opposed this approach. Absent objection, we
adopt these proposals. Regarding our requirement that
Class A TV applicants and licensees maintain an OPIF,75
NPG notes that LPTV stations have no OPIF and are
therefore unable to upload records to the system.76 The
Commission will activate an OPIF for LPTV stations
that apply to convert to Class A status pursuant to the
LPPA and inform applicants when that station’s OPIF is
ready for the applicant to upload documents required to
be maintained in OPIF.77
station interference protection); and 73.622(f)(6)-(8) (allowable
antenna heights and power levels for full power stations). The
Commission recently amended its rules to relocate the text from
certain Part 73 rules to new section and subsection numbers.
See Amendment of Part 73 of the Commission’s Rules to Update
Television and Class A Television Broadcast Station Rules, and
Rules Applicable to All Broadcast Stations, MB Docket No. 22227, Report and Order, FCC 23-72 (rel. Sept. 19, 2023) (Part 73
Amendment R&O). The amended rules are not yet effective and,
as such, we continue to make reference to the rule numbers as of
the date of release of this Report and Order.
75. See 47 CFR § 73.3526.
76. NPG Comments at n.24.
77. Consistent with current practice for other stations with
OPIF obligations, the Commission will upload to the applicant’s
OPIF those documents that the Commission is responsible
for uploading to OPIF. Broadcasters and other media entities
must upload only those items required to be in the public file
but not otherwise filed with the Commission or available on the
Commission’s website. Any document or information required
to be kept in the public file and that is required to be filed with
the Commission electronically is imported to the online public
file and updated by the Commission. See Standardized and
51a
Appendix D
22. We also require that all stations that receive a
Class A license under the LPPA comply with all Class A
regulations, as proposed in the NPRM.78 As discussed in
the NPRM, the LPPA requires that LPPA Class A stations
“remain in compliance” with the Act’s eligibility criteria79
“during the term of the license.”80 This includes, among
other things, the requirements to broadcast a minimum
of 18 hours per day and to broadcast an average of at least
three hours per week of locally produced programming
each quarter. 81 In addition, the station must continue
to comply with the interference requirements adopted
herein. 82 Further, we adopt the tentative conclusion in
the NPRM83 that there is no reason to exempt LPTV
stations converting to Class A status under the LPPA from
other rules applicable to LPTV stations that converted to
Class A status under the CBPA, 84 given that the service
Enhanced Disclosure Requirements for Television Broadcast
Licensee Public Interest Obligations, Second Report and Order,
27 FCC Rcd 4535, 4540-41, para. 11 (2012); Expansion of Online
Public File Obligations to Cable and Satellite TV Operators and
Broadcast and Satellite Radio Licensees, Report and Order, 31
FCC Rcd 526, 534, para. 17 (2016).
78. See NPRM at para. 19.
79. LPPA Sec.(2)(c)(2)(B).
80. LPPA Sec.2(c)(3)(B).
81. LPPA Sec.2(c)(2)(B). See also 47 CFR § 73.6001(b)-(c).
82. See NPRM at para. 37. See infra Section III.B.3.
83. See NPRM at para. 19.
84. See 47 CFR §§ 73.6000-6029.
52a
Appendix D
requirements in the LPPA closely track those in the CBPA
and thus it makes sense for Class A rules generally to
apply. 85 No commenter addressed these issues.
23. Finally, we conclude that the requirement to
comply with the Class A eligibility requirements begins
when an LPTV station’s Class A application is submitted.
The LPPA states that the “Commission may approve an
application [for Class A status] if the low power TV station
submitting the application—satisfies—paragraphs (b),
(c), and (d) of 73.6001,”86 which contains the requirements
that Class A stations broadcast a minimum of 18 hours
per day and broadcast an average of at least three
hours per week of locally produced programming each
quarter. This requirement is distinct from the separate
statutory obligation to meet the eligibility requirements
during the 90-day eligibility period of October 7, 2022 to
January 5, 2023. 87 In the NPRM, the Commission sought
comment on how to interpret the statutory language, and
specifically on whether the language should be interpreted
to require an applicant for a Class A license to satisfy the
requirements from the time it submits its application. 88
No commenter addressed this issue. As discussed above,
the LPPA requires that applicants continue to broadcast a
minimum of 18 hours per day and to broadcast an average
of at least three hours per week of locally produced
85. See NPRM at para. 19; supra para. 8.
86. LPPA Sec.2(c)(2)(B)(i)(II).
87. LPPA Sec.2(c)(2)(B)(i)(I).
88. See NPRM at para. 20.
53a
Appendix D
programming each quarter after a Class A license is
granted. 89 We conclude that the language quoted above90
would be rendered superfluous if we did not interpret
it to apply these requirements from the time the Class
A application is submitted.91 Thus, the requirement to
broadcast a minimum of 18 hours per day and broadcast
an average of at least three hours per week of locally
produced programming each quarter begins when a
station submits an application to convert to Class A status
pursuant to the LPPA and continues for the term of the
Class A license.
24. License Application and Documentation. As
proposed in the NPRM,92 we will require an applicant
to certify in its application that its station meets the
operating and programming requirements of the LPPA.
Specifically, the NPRM proposed, with respect to the
statutory requirement that stations air 18 hours of
programming each day during the 90-day eligibility
period, that applicants must certify that the station was
fully operational for at least 18 hours on each day during
the 90-day eligibility period.93 In addition, the NPRM
89. LPPA Sec.2(c)(3)(B). See supra para. 8.
90. See supra n. 89 and accompanying text.
91. Clark v. Rameker, 134 S. Ct. 2242, 2248 (2014) (“‘a statute
should be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous’”) (quoting Corley
v. United States, 556 U.S. 303, 314 (2009)).
92. See NPRM at para. 21.
93. Id.
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proposed, with respect to the requirement that stations
air three hours of locally produced programming, that an
applicant must certify that it was broadcasting an average
of at least three hours per week of programming that was
produced within the market area served by such station, or
the market area served by a group of commonly controlled
LPTV stations that carry common local programming
produced within the market area served by such group,
on each day during the 90-day eligibility period. 94 No
commenter objected to these proposals. We believe these
certification requirements will assist us with the orderly
processing of applications received under the LPPA, and
thus we adopt the proposals. Finally, we also require that
an applicant certify that it was in compliance with the
Commission’s requirements applicable to LPTV stations.95
25. Consistent with the tentative conclusion in the
NPRM, we require an applicant to submit, as part of its
application, documents to support its certification that it
meets the operating and programming requirements of
the LPPA.96 As noted in the NPRM,97 the Commission
staff may later determine that additional documentation
is needed to evaluate an application and may at that
time require an applicant to submit additional, specific
94. Id.
95. 47 U.S.C. § 336(f)(2)(A)(i)(III).
96. See NPRM at para. 22.
97. Id.
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Appendix D
documentation during consideration of the application.98
We believe this approach will ensure eligibility while
preserving f lexibility for applicants. We decline to
permit applicants to certify that they meet operating
and programming requirements without submission of
supporting documentation, as Block suggests.99 We believe
such an approach would lack the information necessary for
the Commission staff to undertake a sufficient review of
the application in these circumstances. NAB suggests that
we require stations to provide “a statement concerning
the station’s operating schedule and a list of locally
produced programs” at the application stage.100 We will
98. See 47 U.S.C. § 308(b).
99. See Block Comments at 3.
100. See NAB Comments at 5. NAB also suggests that LPPA
Class A stations include a list of locally produced programs as
part of the station’s issues/programs list. Id. But see RCC Reply
Comments at 12 (arguing that NAB’s suggestion “contravenes
basic First Amendment principles and Congress’s explicitly stated
goal of fostering diverse voices through use of the Internet”)
and LPTVBA Reply Comments at 8 (arguing that existing
requirements are sufficient to ensure compliance). We decline to
require LPPA Class A stations to provide information regarding
local programming as part of their issues/programs list, but note
that all Class A stations must comply with the requirement that
they place in their online public inspection file “documentation
sufficient to demonstrate that the Class A television station is
continuing to meet the eligibility requirements set forth” in section
73.6001 of the Commission’s rules. 47 CFR § 73.3526(e)(17). Section
73.6001(b) requires all Class A stations to broadcast a minimum
of 18 hours per day and to broadcast an average of at least three
hours per week of locally produced programming each quarter.
47 CFR § 73.6001(b). Thus, LPPA Class A stations must include
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Appendix D
adopt NAB’s suggestion and require applicants to provide
with their application a statement concerning the station’s
operating schedule during the 90 days preceding January
5, 2023 as well as a list of locally produced programs
aired during that time period. We believe that requiring
applicants to submit this basic information in support of
their certification that they meet the LPPA’s eligibility
criteria will assist us in processing applications. In
addition, an applicant should submit whatever additional
documents available to the applicant that it believes best
support its certification that it meets the operating and
programming requirements of the Act. For example, to
support its certification that the station was on the air
at least 18 hours each day during the eligibility period,
a station could provide electric power bills from a third
party vendor that specify the station’s broadcast facility
location for the designated period,101 and/or copies of any
program guides, EAS logs, or agreements to purchase
and air programming on the specified station during
in their public inspection file documentation sufficient to show
that the station is continuing to meet these requirements. In light
of this existing public inspection file requirement, we decline to
require LPPA Class A stations to include a “specific statement
detailing hours of operation” as part of the continuing eligibility
documentation, as NAB suggests. See NAB Comments at 5.
101. A significant fluctuation in the amount of power used on
a monthly basis during the 90-day eligibility period could indicate
that the station reduced its hours of operation for one or more
months. In addition, for example, we would expect that a station
operating at 15 kW, the maximum operating power for a UHF
LPTV station, for 18 hours seven days a week, would be operating
with a substantial amount of power, as opposed to an LPTV station
that was airing programming sporadically.
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Appendix D
the times of operation in an amount sufficient to satisfy
this operating requirement.102 If the station was silent
during any portion of the eligibility period, the station
must identify any silent periods and the reasons why the
station was silent.103 To support its certification that a
station aired an average of at least three hours of locally
produced programming each week, the station could, for
example, submit copies of any agreements to purchase
and air such programming and/or identify the producer
of any programming it claims is locally produced, the
location where the programming was produced, and
records of advertisements aired during locally produced
programming showing that the programming was in fact
aired.
102. For example, if a station had contracts for at least 18
hours of programming from various program suppliers during
the 90-day eligibility period, this would strongly indicate that
the station was operating at least 18 hours per day during that
time period.
103. Section 74.735(b) of our rules provides that, in the event
that causes beyond the control of a licensee make it impossible
to continue operating, the station may limit or discontinue
operation for a period of not more than 30 days without further
authority from the Commission. Notification must be sent to the
Commission no later than the 10th day of discontinued operation
and, during such period, the licensee shall continue to adhere to
the requirements in the station license pertaining to the lighting
of antenna structures. If the causes beyond the control of the
licensee make it impossible to comply within the allowed period,
an informal written request should be made to the Commission no
later than the 30th day for such additional time as may be deemed
necessary. 47 CFR § 74.735(b).
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Appendix D
26. Apart from a statement regarding the station’s
operating schedule and a list of locally produced
programming aired during the 90 days preceding
January 5, 2023, we decline to mandate the form of the
additional documents that applicants submit to support
their applications.104 We recognize that some applicants
may not have specific types of documentation, or that a
specific document may not be in a form that supports
the applicant’s certification.105 In light of that, we permit
each applicant to provide with the station’s application,
documents that it has that best support its certification
that it met the operational and programming requirements
of the LPPA during the eligibility period. The Commission
staff will review the documentation on a case-by-case
104. REC argues that, to demonstrate that a station is on the
air for 18 hours/day, applicants should be required to include utility
bills, photos of the transmitting facility (including a powered-on
transmitter), copies of any leases, and any programming grids
and programming contracts. See REC Comments at 4-5. To
demonstrate that the station met the local programming eligibility
requirement, REC argues that applicants should be required
to submit program logs including the name of the program, the
air date, time and length of the program, the location where the
program was produced, and a description of the program. Id.
While we agree that such documents may be useful to support
an application, for the reasons described herein we decline to
mandate that all of these specific documents are required for every
application and permit applicants to submit the documents they
have that they believe best support their application.
105. For example, Block notes that utility costs are often
“baked into” a tower lease and that the tower owner may not be
able to apportion electricity costs among different tower tenants.
Block Comments at 3.
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Appendix D
basis and determine if it will need to request additional
documentation before it can make a determination
whether to grant a Class A license application.
27. Alternative Eligibility Criteria. As proposed
in the NPRM, we will allow deviation from the strict
statutory eligibility criteria under the LPPA only where
deviations are insignificant or where there are compelling
circumstances such that equity mandates a deviation. No
commenter disagreed with this approach.106 As discussed
above,107 similar to the CBPA, the LPPA provides the
Commission with additional discretion in evaluating
applicants for Class A status if “the Commission
determines that the public interest, convenience, and
necessity would be served by” or “for other reasons
determined by the Commission” for treating the
station as eligible for conversion to Class A pursuant
to the LPPA.108 In the Class A Order, the Commission
determined that it would allow deviation from the strict
statutory eligibility criteria in the CBPA “only where
such deviations are insignificant or when we determine
that there are compelling circumstances, and that in
light of those compelling circumstances, equity mandates
such a deviation.”109 The Commission gave as an example
106. Lockwood proposed that we adopt a de minimis exception
to the LPPA’s 95,000 TV household eligibility requirement. As
discussed below, we reject that proposal. See infra paras. 54-56.
107. See supra para. 12.
108. 47 U.S.C. § 336(f)(2)(B).
109. Class A Order, 15 FCC Rcd at 6369, para. 33.
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Appendix D
of such compelling circumstances “a natural disaster
or interference conflict which forced the station off the
air during the 90-day period before enactment of the
CBPA.”110
28. We conclude that, similar to the Commission’s
approach in implementing the CBPA, we will allow
deviation from the strict statutory eligibility criteria in
the LPPA only where such deviations are insignificant
or where there are compelling circumstances such that
equity mandates a deviation.111 We will consider any such
requests on a case-by-case basis. As the Commission
tentatively concluded in the NPRM,112 we believe that the
LPPA provides precise and limited eligibility criteria and,
except in very limited circumstances, we are not inclined
to expand the specific qualifying criteria beyond that
identified in the statute.
3.
Interference Requirements
29. We adopt the tentative conclusions in the NPRM
that our interference rules applicable to existing Class
A stations, including requirements that were adopted
subsequent to enactment of the CBPA in 1999,113 will
110. Id. The Commission also concluded that foreign language
stations should have the same eligibility requirements as any other
potential Class A station under the CBPA. Id. at paras. 33-35.
111. Class A Order, 15 FCC Rcd at 6369, para. 33.
112. NPRM at para. 24.
113. The digital-to-digital interference protection standards
for LPTV stations converting to Class A status vis-à-vis LPTV
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Appendix D
apply to stations that convert to Class A status pursuant
to the LPPA.114 The LPPA provides that the Commission
may approve an application by an LPTV station if it
demonstrates that “the Class A station for which the
license is sought will not cause any interference described
in section 336(f)(7) of the Communications Act. . . .”115
Section 336(f)(7) describes the interference protection
requirements for LPTV stations that sought Class
A status under the CBPA with respect to full power
television, LPTV, TV translator, and land mobile stations.
As noted in the NPRM, LPTV stations that converted
to Class A status pursuant to the CBPA in 2000 began
their primary status as analog stations, and therefore,
that section related to analog operations.116 All television
broadcast stations are now operating digital facilities.117
While the LPPA specifically references the interference
requirements “described in section 336(f)(7),” we affirm
the tentative conclusion in the NPRM that inclusion of
this language does not evince an intent by Congress to
compel LPTV stations applying for Class A licenses under
the LPPA to demonstrate compliance with outdated and
and TV translator stations pursuant to the LPPA are now found
in sections 74.792 and 74.793 of the rules. NPRM at para. 29.
114. NPRM at paras. 27-29.
115. LPPA Sec. 2(c)(2)(B)(ii).
116. NPRM at para. 26.
117. See supra para. 3 and n.8; DTV Delay Act, Pub. L. No.
111-4, 123 Stat. 112 (2009) (Full power stations largely completed
their digital transition by June 12, 2009); NPRM at para 26.
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Appendix D
superseded interference rules.118 Rather, we affirm the
NPRM’s tentative conclusion that requiring applicants
to demonstrate compliance with current interference
requirements relevant to digital facilities would guarantee
the purpose of the statutory provision. This approach
will ensure that LPTV stations converting to Class A
status under the LPPA will not cause interference to
the licensed or previously proposed facilities of digital
broadcast stations, including full power, Class A, LPTV
and TV translator stations.119
30. NPG generally supports that the current
interference rule rather than the old analog rule should be
applied. However, NPG would have us provide flexibility
to permit interference beyond what is permitted in our
current rules. NPG states that the Commission should
adopt a “flexible approach” granting applications that would
violate the rule “if the applicant is able to demonstrate no
actual interference, acceptance by the licensee subject to
such interference, or other showing that the public interest
is served by the applicant obtaining Class A status.”120
118. NPRM at para. 26, citing Pub. Citizen v. U.S. Dep’t of
Justice, 491 U.S. 440, 452-55 (1989) (noting that statutes are to be
read in a manner that avoids absurd results); City of Lincoln, Neb.
v. Ricketts, 297 U.S. 373, 376 (1936) (noting duty to give words their
natural significance unless that leads to an unreasonable result
plainly at variance with the evident purpose of the legislation).
119. NPRM at para. 26.
120. NPG Comments at 9-10. Class A and LPTV stations are
permitted to cause interference to no more than 0.5 percent of the
population served by full-power and Class A television stations,
and no more than 2 percent of the population served by LPTV and
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Appendix D
We are not persuaded to grant this request. First, we
do not anticipate any scenarios where interference is
predicted, but the applicant is able to demonstrate a lack
of actual interference.121 The TVStudy software used to
prepare and process applications already considers the
elements likely to cause actual interference. Specifically,
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