In an 18-page decision released June 5, the D.C. Circuit has rejected the NAB’s challenge to certain LPFM-friendly rules adopted by the Commission in 2007.
Back in 2007, the Commission:
- modified its “cease-operation” rule (Section 73.809) to provide that an LPFM station causing interference to a later-authorized (or later-modified) full service station would apply only to co-channel and first-adjacent channel situations, not second-adjacent situations;
- established new standards for waiving separation requirements when a later-authorized/modified full service station would ordinarily displace an LPFM but there are no alternate, rule-compliant channels to which the LPFM might relocate;
- created a “rebuttable non-binding presumption” essentially elevating LPFM’s over later-filed full service applications for change of city of license in the overall pecking order if the LPFM guy can demonstrate that it has “regularly provided at least eight hours per day of locally originated programming.”
The Court acknowledged that some of the NAB’s arguments were at least “seemingly intuitive” – but in the end those arguments ran smack into Congress’s language, which plainly did not support the NAB. Logically, of course, whittling away at second-adjacent protections does appear to be inconsistent with Congress’s express mandate that third-adjacent (i.e., more attenuated) protections be maintained. However, the fact that Congress did not expressly mandate maintenance of second-adjacent protection was fatal to the NAB’s argument. (As the Court saw it, the FCC’s position was neither “demonstrably at odds” with the statute nor “contrary to common sense” – strong praise, indeed.)
The Court also disagreed with NAB’s attack on the “rebuttable non-binding presumption” which (to the passing eye, at least) appears to be purely content-based, since it is triggered by the LPFM’s claim of having provided “locally originated programming”. But in the Court’s view, the term “locally originated programming” refers to the “geographic location of the production of programming”, not the “substantive content of the programs.” (The Court did keep the NAB’s content-based argument alive for another day by dismissing it as unripe because “there is no clear indication that the Commission will regulate content in applying the presumption”.)
One more interesting point: the Court again cites the Supreme Court’s Fox opinion to give the Commission broad protection against garden-variety APA arbitrary-and-capricious arguments. We predicted such increasing reliance on the new APA standard articulated by the Supremes back in April.