FCC’s order subjecting noncommercial educational (NCE) and public...
FCC’s order subjecting noncommercial educational (NCE) and public broadcast stations to competitive bidding for licenses in nonreserved spectrum was effort to interpret “difficult” language of statute and not to expand its auction authority, agency told U.S. Appeals Court, D.C.,…
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Fri. Court was hearing oral argument on petition by NPR and others seeking review of Commission’s order. NPR said one part of Sec. 309 of Communications Act stated that FCC’s authority to award licenses through competitive bidding didn’t apply to NCE and public broadcasting applicants. Grey Pash, counsel for FCC, said statute provided several directives and it wasn’t clear that Congress understood problems it could create. Saying it wasn’t easy issue to resolve for agency, he said meaning of statute’s language depended on context. Among statute’s goals was expanding FCC’s auction authority, reducing comparative standards process and recovering for public portion of value of public spectrum, he said. Under NPR’s interpretation, there would be fewer auctions and more comparative proceedings, he said. In support of public broadcasters, he pointed out FCC had made provision for reallocating channels from nonreserved to reserved if need arose. FCC’s determination that exemption didn’t apply to NCE and public broadcasters violated plain language of statute, said Patrick Philbin, lawyer for NPR. Most of questioning from 3-judge panel focused on language of statute, with judges seeming to concur that language wasn’t specific. Judge Raymond Randolph said statute wasn’t talking about applications, but licenses already issued. FCC can exempt applicants only after entire licensing process is over and agency’s problem is what process to use to determine who gets license. “I think Section 2 is a muddle,” he said. Judge David Tatel questioned NPR lawyer on how FCC’s provision for reallocating channels could be in conflict with statute. When Pash sought to present agency’s difficulty in making sense of some provisions of statute, Judge Douglas Ginsburg remarked: “It’s a kind of think-o, not a typo by Congress?” Ginsburg also explored with Pash possibility of using “hybrid” system for selecting mutually exclusive applicants for reserved spectrum suggested by Philbin. FCC says statute provides conflicting directions, he said, but there’s nothing in language that limits exemption for NCE and public broadcasters to reserved spectrum.