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 [2012] 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.