The U.S. Court of Appeals for the D. C. Circuit should overturn the FCC’s implementation of the 2023 Low Power Protection Act because it favors full-power stations, unlawfully uses data from Nielsen, and limits the number of Class A stations, according to a final brief and final reply brief from Radio Communication Corp. Tuesday. The FCC’s Class A license allocation system is “designed to protect NAB’s Clients” -- the brief defines NAB’s Clients as full-power stations -- and turns “the LPPA’s LPTV protection purpose on its head.” The FCC has said that its LPPA order followed the plain direction of the LPPA's text: The agency “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the FCC has said. RCC has argued that the term “operates” refers to a station’s community of license rather than its Nielsen-designated market area. “There is no way for the general public, or this Court, to know how Nielsen created and maintains DMAs or even ascertain what the boundaries of Class A licensing markets are without first subscribing to Nielsen’s service in exchange for payment,” RCC said. “We do not know, and cannot verify, whether parties paid money to Nielsen to have the DMAs drawn after Congress began working on the LPPA legislation, nor whether Nielsen has altered DMAs since the LPPA was adopted, or might alter the DMAs in the future based upon its own decision-making or because a broadcaster pays for the change.” The case isn't scheduled for oral argument. Instead, a D.C. Circuit merits panel will decide it on briefs alone.

The FCC’s implementation of the 2023 Low Power Protection Act favors full-power stations at LPTV’s expense (see 2312080043), improperly uses Nielsen designated market areas, and unlawfully doesn’t give Class A stations must-carry status, said a brief from Radio Communication Corporation in the U.S Court of Appeals for the D.C. Circuit Monday. By allowing LPTV stations to upgrade to Class A status only in DMAs with 95,000 households or fewer, the FCC “excludes service to populated areas and promotes Class A service to deserts, rivers, lakes, mountains, prairie grasslands, literally authorizing Class A service to everywhere, except those places where people are located,” said RCC. The FCC has said that the use of Nielsen DMAs and the 95,000 household threshold were specifically required by the language of the LPPA, but RCC’s brief disagreed. “The LPPA does not authorize the Commission to sacrifice LPTV and Class A licenses for the benefit of NAB’s Clients,” RCC said. In the brief’s glossary, the term “NAB’s Clients” is defined as “full service TV clients” – full power stations. Rather than limiting Class A upgrades based on the size of a station’s DMA, the agency should have limited it based on the size of their community of license, RCC said. By using Nielsen’s markets, the FCC is unconstitutionally delegating authority to a private company, RCC said. The FCC’s order “transforms the ‘Low Power Protection Act’ into the ‘Large Power Protection Act’ by unreasonably limiting, at every critical determination, LPPA’s economic protection of LPTV stations,” RCC said. The DC Circuit rejected RCC's request for an emergency stay of the FCC's LPPA order in March.