During oral arguments last Thursday, a three-judge panel of the D.C. Circuit Court assessed broadcast industry challenges to the FCC’s mandated usage of the new “TVStudy” software in calculating post-auction broadcast station coverage and population, as part of the upcoming Incentive Auction. The petitioners claim that the FCC failed in its statutory obligation to “make all reasonable efforts to preserve . . . the coverage area and population served of each broadcast television licensee” in promulgating rules under last year’s Incentive Auction order.
Appeals against the Incentive Auction order and against a related FCC ruling on broadcast channel repacking were brought to the court last September by the National Association of Broadcasters (NAB) and by Sinclair Broadcast Group. Principally, NAB and Sinclair contend that the FCC violated spectrum-related provisions of the Middle Class Tax Relief Act of 2012 (MCTRA) that require preservation of TV coverage area and population “as determined using the methodology described in [the FCC’s] OET Bulletin 69.” Among other things, both petitioners also claim that the FCC violated tenets of the Administrative Procedure Act by failing to provide adequate public notice that the FCC was considering a departure from the OET-69 methodology.
Much of the highly-technical discussion was centered upon the term “methodology” as used in the MCTRA and whether the FCC could follow the congressionally-mandated OET-69 methodology while using updated data and software such as the “TVStudy” program. Arguing that the FCC should have relied upon OET-69 inputs that were available when the MCRTA was signed into law, counsel for NAB advised the appellate panel that the FCC should have used 2000 U.S. Census data in its population and coverage calculations instead of the updated 2010 Census data, particularly as the agency continues to use the 2000 data in other contexts. As Judge Sri Srinivasan countered, however, that there is nothing to keep the FCC from using the 2010 figures “if you look at the statutory language,” Senior Judge David Sentelle chimed in that “methodology and data forms are not the same thing,” as the census figures represent “a big data point.”
The judges took a similar, critical tone with counsel for the FCC. Asked by Judge Sentelle what is included in the OET-69 methodology, FCC associate general counsel Jacob Lewis referred the court to a footnote in the Incentive Auction order that points to “a specification for determining a contour that defines the boundaries of a station’s coverage area, and . . . an algorithm for evaluating the availability of service within that contour.” Replying he was “not sure” Lewis had explained the methodology in a satisfactory manner, Sentelle quipped: “it might have been nice if the Commission had put more things in the [body of the] opinion and fewer things in the margins.”