D.C. APPEALS COURT QUIZZES LAWYERS IN BUFFALO PTV DISPUTE
Attorneys for FCC and Coalition for Noncommercial Media (CNM) squared off in U.S. Appeals Court, D.C., Thurs. over Western N.Y. Public Bcstg. Assn. (WNYPBA) plan to sell its 2nd noncommercial station to commercial broadcaster LIN TV for $26.2 million (CD Nov 9 p5). Washington-based CNM, which opposes conversion of PTV station to commercial broadcaster, is seeking to overturn Mass Media Bureau’s approval of that switch because move would leave Buffalo area without one of its 2 public stations. But FCC stoutly defended its approval as justified after dismissing 2 CNM counterproposals to preserve both stations as noncommercial entities. WNYPBA, which originally planned to sell station to Sinclair Bcst. Group, is pursuing sale to finance DTV conversion of its remaining station.
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Representing CNM, Washington attorney Jared Sher argued that FCC broke its own rules by not following its standard 2-step procedure in approving license swap of WNED-TV Buffalo (Ch. 17), noncommercial station operating on unreserved channel, and WNEQ-TV Buffalo (Ch. 23), PBS station with noncommercial license. Sher said Commission also violated its procedures by not giving parties opportunity to comment on license swap or file competing applications for license use. In addition, he said, agency rejected group’s 2 counterproposals for invalid reasons and never gave them full consideration.
FCC attorney James Carr contended that Commission simply exercised its licensing power in granting WNYPBA’s bid to swap its commercial and noncommercial licenses and sell WNEQ to LIN. He questioned appellate court’s jurisdiction to overturn agency decision, arguing that CNM hadn’t presented most of its claims to FCC, as required. He also said CNM’s appeal was not filed timely and dismissed group’s counterproposals as “radical change” that would turn currently unreserved channel into noncommercial license over its owner’s objections.
Judge Stephen Williams led questioning of lawyers by 3-judge panel that included Chief Judge Harry Edwards and Judge Karen Henderson. Williams particularly grilled Sher on his legal precedents for FCC’s decision and coalition’s arguments. Williams also questioned Sher on switching subjects and arguments, at one point instructing him to “try to keep on track.” But Sher said key issue was that Buffalo TV viewers would lose one of their public stations if FCC ruling were upheld.