D.C. Circuit Appears Skeptical of LPTV Oral Argument

A three-judge panel at the U.S. Court of Appeals for the D.C. Circuit did not appear receptive Monday to a low-power TV broadcaster’s oral argument (docket 24-1004) that Congress didn’t intend to limit the 2023 Low-Power Protection Act’s effects to smaller markets (see 2407050020).

The law’s language restricting the Class A upgrades granted by the LPPA to stations that operate in designated market areas of not more than 95,000 households is “in the statute, obviously, but at the very end of the substantive part of the statute,” said attorney Timothy Welch, representing Radio Communications Corp. Said Judge Harry Edwards, “I'm not following your suggestion that because the critical words in the statute are somewhere down the line in the statute, they're less worthy than if they were further up in the statute.”

“The best reading of the Low Power Protection Act is that Congress meant what it said,” said Adam Sorensen, who argued the case for the FCC. “I think that straightforward conclusion resolves this case, and the court really need not reach most of petitioner’s other arguments.”

RCC has argued that the FCC’s implementation of the LPPA favors full-power stations, that it shouldn’t use Nielsen designated market areas (DMAs), and that it should give Class A stations must-carry status. RCC owns an LPTV station in the New Haven, Connecticut, DMA, which isn’t eligible to upgrade to Class A status under the FCC’s rules implementing the LPPA.

On Monday, Welch began arguing that the LPPA's true intent was to give Class A status to LPTV stations nationwide, but he was almost immediately cut off by questions from Judge Gregory Katsas about the eligibility requirement in the statute. “Let's just talk about the text of the government statute,” Katsas said. “The question is whether your client's station operates in a designated market area with not more than 95,000 households.” That eligibility requirement is “the only place in this act where there's conceivably an argument that Congress intended to limit eligibility as the FCC construes it,” Welch responded, arguing that the court shouldn’t “jump to the end of the statute.” The requirement is “the operative text,” Katsas said.

Welch also argued that the FCC shouldn’t have based eligibility on DMAs, but Sorensen said the LPPA refers specifically to DMAs and spells out the 95,000 household limitation. “I don't think the commission is sort of adding any additional language there,” he said. Judge Michelle Childs said, “Your argument seems to be tailored to the best reasons to support your claim, as opposed to us just pointing to the plain text.”