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Document/Fcc-Announces- Results-Worlds-First-Broadcast-Incentive-Auction-0 Nos. 19-1231, 19-1241 IN THE Supreme Court of the United States ____________________ FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS, V. PROMETHEUS RADIO PROJECT, ET AL., RESPONDENTS. ____________________ NATIONAL ASSOCIATION OF BROADCASTERS, ET AL., PETITIONERS, V. PROMETHEUS RADIO PROJECT, ET AL., RESPONDENTS. ____________________ On Writs of Certiorari to the United States Court of Appeals for the Third Circuit ____________________ Brief of Amicus Curiae Public Knowledge _________________ HAROLD FELD COUNSEL OF RECORD PUBLIC KNOWLEDGE 1818 N. ST., NW SUITE 410 WASHINGTON, DC 20036 [email protected] (202) 559-1044 ii TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ iv INTEREST OF AMICUS CURIAE ..............................1 STATEMENT OF THE CASE ......................................2 SUMMARY OF ARGUMENT .......................................7 ARGUMENT ...................................................................9 I. THE UNIQUE ROLE OF BROADCASTERS IN SPECTRUM POLICY. ..................................9 A. Emphasis on Localism and Competition Distinct from Other Licensees. ..........................9 B. Congress, the FCC, and the Courts Have Continued to Reinforce the Unique Role of Broadcasting Despite Constant Changes to the News and Entertainment Market. ..................12 C. With the Digital Transition, Congress Explicitly Reaffirmed the Quid Pro Quo of Free Spectrum in Exchange for Free Over the Air Broadcasting and Unique Regulatory Obligations. ........................................................15 D. Broadcasters Continue to Jealously Guard Their Privileges, While Simultaneously Seeking to Shed Their Responsibilities. .........18 E. Online News Sources Do Not Replace Broadcasting and Newspapers for Local News. 20 II. THE INCENTIVE AUCTION ENHANCED SCARCITY AND REDUCED DIVERSITY. ...22 A. Understanding the Incentive Auction Mechanics. .........................................................23 iii B. The Incentive Auction Highlighted the Value of the Broadcaster’s Free Spectrum Subsidy, and Enhanced the Scarcity of Available Broadcast Channels. ...........................................................27 C. The FCC’s Refusal to Consider the Impact of the Incentive Auction on Minority and Women Ownership Was Arbitrary. ...............................28 CONCLUSION .............................................................31 CERTIFICATE OF COMPLIANCE ...........................33 iv TABLE OF AUTHORITIES Cases ABC, Inc. v. Aereo, Inc., 573 U.S. 431 (2014) . 14 Columbia Broad. Sys., Inc. v. Democratic Nat’l Committee, 412 U.S. 94 (1973) . 4, 12 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). 21 FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775 (1978) . 3 Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, (D.C. Cir. 2002). 12 Motor Vehicles Mfrs. Ass’n. of U.S. v. State Farm Auto Ins. Co., 46 U.S. 29 (1983) . 7 Mt Mansfield TV, Inc. v. FCC, 442 F.2d 470 (2nd Cir. 1971). 12 National Broadcasting Co. v. United States, 319 U.S. 190 (1943)* . 2, 4, 9, 13 Office of Com’n of United Church of Christ, Inc. v. FCC, 359 F.2d 994 (D.C. Cir 1966) . 11 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)* . 4,11,18, 21 Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) . 20 Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997). .3, 14 Prometheus Radio Project v. FCC, 824 F.3d 33 (3d Cir. 2016) . 22, 28 Statutes 47 U.S.C. § 303 . 16 47 U.S.C. § 309 . 12, 16 47 U.S.C. § 325 . 14 47 U.S.C. § 336 . 15, 16, 17 47 U.S.C. §§337 . .15 v 47 U.S.C. §§ 534-35. 14 Balanced Budget Act of 1997, Pub. L. 105-33 § 3002. .4, 16 Cable Consumer Protection and Competition Act of 1992, Pub. L. 102-385. 4 Digital Television Transition and Public Safety Act of 2005, Pub. L. 109-171 Title III . 15 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96 § 6403. .24, 25 Telecommunications Act of 1996, Pub. L. 104-104. 14 FCC Materials Authorizing Permissive Use of “Next Generation” Broadcast Television Standard, Report & Order and Further Notice of Proposed Rulemaking, 32 FCC Rcd 9930 (2017) . 18 “By the Numbers,” FCC Incentive Auction Fact Sheet. 5, 26, 27 Elimination of Main Studio Rule, Report & Order, 32 FCC Rcd 8158 (2017). 12 Expanding Flexible Use of the 3.7-4.2 GHz Band, GN Docket No. 18-122, Report and Order and Order of Proposed Modification, 35 FCC Rcd 2343 (2020) . 22 FCC Auction 73 Web Page . 26 FCC, “FCC Chairman Responds to House Vote to Cut the Number of Community Radio Stations by 80%,” (April 13, 2000) . 18 FCC Web Page, “Broadcast Incentive Auction: Primer for Broadcasters” . .23 FCC Web Page, “Learn Everything About Reverse Auctions Now (LEARN) FAQs” . .23 Order on Reconsideration and Further Notice of vi Proposed Rulemaking, 32 FCC Rcd 9802 (2017) . .5, 28 Public Notice, “Incentive Auction and Channels Assignment Public Notice,” 32 FCC Rcd 2786 (2017) . 5 Public Notice, “Incentive Auction Task force and the Media Bureau and the Wireless Telecommunications Bureau Announce the Commission is Ready to Pay Reverse Auction Winning Bids,” 32 FCC Rcd 5715 (2017) . .6, 27 Public Notice, “Incentive Auction Task Force Announces of Information Related to Non-Winning Bids in Auction 1001” 34 FCC Rcd 2376 (2019) . 25 Rules Governing the Use of Distributed Transmission System Technologies, Notice of Proposed Rulemaking, MB Docket No. 20-74, 35 FCC Rcd 3330 (2020). 19 Other Authorities Carl Weinschenk. “Retransmission Fee Forecast Calls for Another Steep Rise: $11.72 Billion in 2019,” Telecompetitor (July 30, 2019). 20 Comments of Asian Americans Advancing Justice. 6, 27 Harold Feld, “From Third Class Citizen to First Among Equals: Rethinking the Place of Unlicensed Spectrum in the FCC Hierarchy,” 15 CommLaw Conspectus 53, 55 (2007). 2 Harold Feld, “NAB/MSTV Embrace Radio Pirates, Make Up Engineering Data, and Do Whatever Else it Takes to Kill White Space Devices,” Wetmachine (October 20, 2008). .18 vii Congressional Research Service, ”Copyright Act and Communications Act Changes in 2019 Related to Television,” January 13, 2020. 14 Congressional Research Service, “TV Broadcast Incentive Auction: Results and Repacking,” (October 11, 2017) . .23 Corporation for Public Broadcasting, “Facing the Spectrum Incentive Auction and Repacking Process: A Guide for Public Television Stations and Governing Boards,” (July 8, 2014) . 23 Government Accountability Office, “5G Deployment: FCC Needs Comprehensive Strategic Planning to Guide Its Efforts,” (2020). 21 Mark Lloyd, “The Strange Case of Satellite Radio,” American Progress (Feb. 8, 2006) . 13 Note, “Radio Censorship and the Federal Communications Commission.” 39 Columbia L. Rev. 447 (1939). 9 Pew Research Center, “For Local News, Americans Embrace Digital but Still Want Strong Community Connection.” (March 2019) . 20 1 INTEREST OF AMICUS CURIAE Public Knowledge1 is a nonprofit organization that is dedicated to preserving the openness of the Internet and the public’s access to knowledge, including diverse sources of news and information. For almost 20 years, Public Knowledge has participated in media policy issues and spectrum policy issues, ranging from spectrum auction design to promote competition to regulation of legacy media. Staff of Public Knowledge actively participated in the design of the spectrum auction, testifying on multiple occasions before Congress and participating in multiple related FCC proceedings. Members of Public Knowledge have also served on the Department of Commerce Spectrum Management Advisory Committee (CSMAC) and the FEMA advisory committee on the national wireless emergency alert system. 1 Pursuant to Supreme Court Rule 37.3(a), Petitioner has provided blanket consent and Respondent has consented to the filing of this brief. Pursuant to Rule 37.6, no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of the brief. No person or entity, other than amici, their members, or their counsel, made a monetary contribution to the preparation or submission of this brief. 2 STATEMENT OF THE CASE Since the Federal Radio Act of 1927, it has been illegal to operate any device that uses the electromagnetic spectrum for communications.2 Today, the FCC distributed spectrum access in three ways. First, the FCC permits devices approved under Part 15 of its rules to operate on an “unlicensed” basis by anyone for any purpose. In exchange, these devices are granted no protection from interference, must shut down if they cause interference to any licensed service, and must obey all FCC rules under which they are certified. Familiar wireless services such as Wi-Fi and Bluetooth are examples of unlicensed spectrum use. The FCC also licenses certain services “by rule” under Section 307(e). These uses do not require a specific license, but are limited to their stated purpose and receive only limited interference protection. Finally, the FCC grants exclusive licenses. These exclusive licensees are the only users permitted on the frequencies assigned to them, and receive interference protection from any man-made source.3 Broadcasters fit into this last, and most exclusive category. 2 See National Broadcasting Co. v. United States, 319 U.S. 190, 210-15 (1943) (NBC v. U.S.) (detailing history of regulation of spectrum until passage of the Communications Act of 1934). 3 See Harold Feld, “From Third Class Citizen to First Among Equals: Rethinking the Place of Unlicensed Spectrum in the FCC Hierarchy,” 15 CommLaw
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