In a petition filed on October 29, the National Association of Broadcasters (NAB) called on the D.C. Circuit Court of Appeals to overturn a recent declaratory ruling in which the FCC clarified the repacking approach that was adopted by the agency in last May’s Incentive Auction order. Approved on September 30 by a 3-2 margin, the declaratory ruling clarifies the method by which the FCC will reassign or “repack” the spectrum assets of broadcast television licensees that opt to remain on the air following the incentive auction process. That methodology is the target of a pending legal challenge that the NAB filed with the D.C. Circuit in August and which contends the FCC’s plan to use the new “TVStudy” software to predict the coverage areas of TV stations that remain on the air will cause “many broadcast licensees . . . [to] lose coverage area and population served during the auction’s repacking and reassignment process.”
In its September 30 ruling, the FCC clarified that it would “independently protect each eligible station’s ‘coverage area’ and its ‘population served.’” As it promised to replicate the coverage area of the original channels “as closely as possible,” the FCC further specified that it would attempt to preserve each station’s served population by “prohibiting any channel assignment in the repacking process that would cause one station to interfere with 0.5 percent or more of another station’s population served.” The agency stipulated, however, that because population served “excludes unpopulated areas and areas where a station’s signal cannot be received due to existing interference from other stations,” it would not protect such areas “from new interference in the repacking process.”
Asking the court to “vacate, enjoin and set aside the Commission’s September 30 order,” the NAB argued that the declaratory ruling fails to “protect portions of a broadcaster’s coverage area that are subject to interference . . . despite the  Spectrum Act’s command that the Commission ‘make all reasonable efforts in carrying out the incentive auction to ‘preserve, as of February 22, 2012, the coverage area and population served of each broadcast television licensee.’” The NAB also charged that the declaratory ruling “was promulgated on an expedited basis absent formal notice and opportunity to comment.” As such, the NAB claimed that the September 30 order (1) violates the Spectrum Act, (2) is “arbitrary” and “capricious,” and (3) was adopted “in violation of the APA’s notice and comment requirements.” The court has reportedly agreed to consolidate NAB’s latest petition for review with pending legal challenges filed by the NAB and Sinclair Broadcasting against the Incentive Auction order. Officials at the FCC offered no comment.