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PMCM TV Petition.Wpd NO. In the Supreme Court of the United States PMCM TV, LLC, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR WRIT OF CERTIORARI Donald J. Evans Counsel of Record Fletcher, Heald and Hildreth, PLC 1300 N. 17th St. 11th Floor Arlington, VA 22209 (703) 812-0400 [email protected] Counsel for Petitioner PMCM TV, LLC Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTIONS PRESENTED (a) Should courts continue to follow the Chevron policy of deferring to administrative agency interpretations of federal statutes when the federal judiciary is not only uniquely qualified to undertake such interpretations but is also charged by the Constitution with the exclusive power to do so? (b) Where a statute is plain on its face by every canon of statutory construction, should a court under Chevron nevertheless defer to an agency’s contrary interpretation of the statute? (c) The Cable Television Consumer Protection and Competition Act of 1992 provides that a television station entitled to must-carry status must be carried by cable systems on the channel on which it “broadcasts over the air.” The D.C. Circuit below determined that Congress intended by this language to refer to a station’s virtual channel – not the channel associated with the frequency on which it transmits its signal through the air but a different channel number incorporated into the broadcast channel stream. However, in order to qualify for must-carry status at all, a TV station must “operate” on the channel which it is assigned by the FCC’s table of allotments for broadcast transmissions. If “broadcasting over the air on a channel” is the same as “operating on a channel,” hundreds of television stations which have heretofore qualified for “must-carry” status on local cable television systems will now lose their cable carriage rights and protections. Could Congress have intended this result in a statute whose basic purpose was to ensure that TV stations are fairly carried by cable systems? ii PARTIES TO THE PROCEEDING The parties before the United States Court of Appeals for the District of Columbia Circuit were (i) Petitioner, PMCM TV, LLC, (ii) Respondent, the Federal Communications Commission, (iii) Respondent, United States of America, U.S. Department of Justice Antitrust Division, (iii) Intervenor below, ION Media License Company, LLC, (iv) Intervenor below, Meredith Corporation, (v) Intervenor below, Charter Communications, Inc., and (vi) Intervenor below, CBS Corporation. RULE 29.6 DISCLOSURE STATEMENT PMCM TV, LLC is a New Hampshire limited liability company. The company is not publicly traded, has no parent companies, and no publicly traded company holds 10% or more of its membership shares. iii TABLE OF CONTENTS QUESTIONS PRESENTED................... i PARTIES TO THE PROCEEDING ............. ii RULE 29.6 DISCLOSURE STATEMENT........ ii TABLE OF AUTHORITIES................... v PETITION FOR WRIT OF CERTIORARI ........ 1 OPINIONS BELOW ......................... 1 JURISDICTION ............................ 1 STATUTORY PROVISIONS INVOLVED........ 1 STATEMENT OF THE CASE ................. 2 REASONS FOR GRANTING CERTIORARI ...... 5 I. The Chevron Precedent Calling for Deference to Administrative Agencies’ Interpretations of Statutes Should be Overturned......... 5 II. The Circuit Court’s Decision has Grave Consequences for the Cable Carriage Rights of Hundreds of Television Stations Which Depend on Cable TV “Must Carry” Status for Viewership ........................... 7 III. The Circuit Court Ignored its Chevron Obligation to Enforce a Statute that is Clear on its Face............................ 9 CONCLUSION ............................ 15 iv APPENDIX Appendix A Judgment in the United States Court of Appeals for the District of Columbia Circuit (June 20, 2018) ...............App. 1 Appendix BMemorandum Opinion and Order Before the Federal Communications Commission, Washington, D.C. 20554 (September 15, 2017) ..........App. 9 Appendix C Order Denying Petition for Panel Rehearing in the United States Court of Appeals for the District of Columbia Circuit (September 5, 2018) ..........App. 86 Appendix D Order Denying Petition for Rehearing En Banc in the United States Court of Appeals for the District of Columbia Circuit (September 5, 2018) ..........App. 88 v TABLE OF AUTHORITIES CASES Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) .................. passim PMCM TV, LLC, 31 FCC Rcd 5224 (MB 2016) ................ 1 PMCM TV, LLC, 31 FCC Rcd 5230 (MB 2016) ................ 1 PMCM TV, LLC, 31 FCC Rcd 5236 (MB 2016) ................ 1 PMCM TV, LLC, 32 FCC Rcd 7200 (2017) ................... 1 PMCM TV, LLC v. Federal Communications Commission, No. 17-1209 (D.C. Cir. June 20, 2018) ...... 1, 5 Perrin v. United States, 444 U.S. 37 (1979) ....................... 11 SBC Commc’ns Inc. v. FCC, 138 F.3d 410 (D.C. Cir. 1998) .............. 10 STATUTES 28 U.S.C. § 1254(1) .......................... 1 47 C.F.R. § 73.603.......................... 11 47 C.F.R. § 73.622(i) ........................ 11 47 U.S.C. § 514(h)(1) .................... 7, 8, 11 47 U.S.C. § 534(b) ........................... 1 vi 47 U.S.C. § 534(b)(6) .................... passim 47 U.S.C. § 534(h)(1) .................... passim OTHER AUTHORITIES Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1 (2017) . 6 Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 ........................... 3 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission’s Rules, Declaratory Order, 23 FCC Rcd 14254 (2008) ................................ 2, 4 Conference Report accompanying the Cable Television Consumer Protection and Competition Act of 1992, H.R. Rep. No. 102-862 (1992) .................................. 4 Order Denying Petition for Rehearing En Banc, No. 17-1209 (D.C. Cir. Sep. 5, 2018) ....... 5, 13, 14 In re PMCM TV, LLC v. RCN Telecom Services, LLC, Memorandum Opinion and Order, 32 FCC Rcd. 7200, 7207–08 (2017) .................. 4 Joseph Postell, The Framers Establish an Administrative Constitution, FREE STATE FOUNDATION (Bd. of Acad. Advisors, Potomac, MD.), May 24, 2018 ....................... 6 Joseph Postell & Paul J. Larkin, Jr., Not Above the Law: Ending the Misguided Chevron-Auer Deference Regime, HERITAGE FOUNDATION, Sep. 7 2018 .................................. 6 vii S. REP. NO. 102-92, at 61 (1991), as reprinted in 1992 U.S.C.C.A.N. 1133, 1194 ............ 3, 14 Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 GEO. J. L. & PUB. POL’Y 103 (2018) ...................... 6 1 PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW The orders of the FCC’s Media Bureau were released on May 17, 2016 and are reported at PMCM TV, LLC, 31 FCC Rcd 5224 (MB 2016); PMCM TV, LLC, 31 FCC Rcd 5230 (MB 2016); and PMCM TV, LLC, 31 FCC Rcd 5236 (MB 2016). The FCC’s decision on review of those orders was released on September 15, 2017 and is reported at PMCM TV, LLC, 32 FCC Rcd 7200 (2017). The opinion of the D.C. Circuit was entered on June 20, 2018 and is reported at PMCM TV, LLC v. Federal Communications Commission, No. 17- 1209 (D.C. Cir. June 20, 2018). (“D.C. Circuit Order”). The D.C. Circuit denied PMCM TV, LLC’s petition for rehearing en banc on September 5, 2018. JURISDICTION The D.C. Circuit’s judgment was entered on June 20, 2018. PMCM TV, LLC filed a petition for rehearing en banc on August 6, 2018, which the D.C. Circuit denied on September 5, 2018. This case is therefore timely filed under Rule 13 of this Court’s rules. The Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The Appendix reproduces 47 U.S.C. §§ 534(b) and 534(h)(1). 2 STATEMENT OF THE CASE The cable carriage issue raised in this case has been a time bomb waiting to explode since 2008 when the Federal Communications Commission (“FCC”) began permitting cable systems to carry TV stations on their “virtual” channel number rather than on the channel over which they broadcast their signals. In connection with the complete conversion of the nation’s broadcast television system from analog to digital in 2009, many stations which had been transmitting on analog channels associated with their radio frequency (“RF channels”) were relocated to different digital RF channels. The FCC adopted a policy of letting stations identify themselves by a “virtual channel” which was the same as their former analog RF channel.1 The idea was that viewers had grown accustomed to finding their shows on a particular channel and use of the virtual channel would simplify their ability to continue to watch their favorite channels. As an example, the NBC station in Washington historically operated on analog RF channel 4. After the digital conversion, it began operating on digital RF channel 48. The FCC’s policy allowed it to continue to identify itself to over the air viewers as channel 4. The virtual channel identifier (along with other information ancillary to the actual programing content, such as the call sign of the station) is included in the RF channel that is broadcast over the air by the station. Most TV sets are now configured to receive 1 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission’s Rules, Declaratory Order, 23 FCC Rcd 14254 (2008) (“2008 Declaratory Ruling”). 3 and
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