PMCM, FCC Go Before DC Circuit Thursday

Broadcaster PMCM will argue that its WJLP Middletown Township, New Jersey, should be assigned virtual channel 3 over the FCC’s objections, at the U.S. Court of Appeals for the D.C. Circuit Thursday (see 1709280034). The broadcaster won a previous case against the agency to be allowed to relocate the station from Nevada to New Jersey (see 1212170043) after the DTV transition, but the FCC and the courts rejected the broadcaster’s arguments this time around. Since the case deals with arcane concepts such as virtual channels and the Program and System Information Protocol, broadcast attorneys told us it’s likely the court will defer to the FCC now. “The FCC’s insistence that WJLP utilize major channel number 33, rather than major channel number 3, is flatly inconsistent” with the commission’s own rules, PMCM said (in Pacer).

Judges Thomas Griffith, Robert Wilkins and Gregory Katsas will hear the case, according to a court order (Pacer link). PMCM will get 15 minutes, and the commission has 15 minutesthe agencycan split with interveners CBS, Meredith and Ion as the FCC “sees fit,” the order said.

Rules on virtual channel assignments require WJLP to be assigned the same channel after the digital transition that it held during the analog era, PMCM argued. That channel was 3 for PMCM’s WJLP predecessor KVNV Ely, Nevada, but by moving KVNV cross-country under a rule intended to encourage VHF stations to move to markets without them, the station became a newly licensed station in an existing market, the FCC argued (in Pacer). Channel 3 had been used by stations -- owned by Meredith and CBS -- adjacent to WJLP for “half a century” and rules prevent “from using a virtual channel number that was already being used in the same market by an incumbent broadcaster,” the FCC said. The agency is misinterpreting those rules, PMCM said. The agency, CBS and Meredith didn’t comment Monday.

Since those rules were created by the ATSC and then incorporated into the rules by the FCC, they aren’t entitled to the deference the court shows federal agencies, PMCM said. Broadcast attorneys said the court is generally likely to defer to the FCC on extremely complicated or technical matters. ATSC didn’t comment. The decision to assign virtual channel 33 to WJLP was “a reasonable exercise of discretion,” the FCC said. It reduced consumer confusion and protected the brands of the stations already using channel 3, the agency said. The FCC has stayed out of similar disputes between stations in the past, and during the several months WJLP operated on channel 3, there were no complaints, PMCM said.

PMCM, which didn’t comment, is likely seeking a lower channel number because lower channels are seen as more popular, industry lawyers said. “Channel placement is a big deal,” said Holland and Knight broadcast attorney Charles Naftalin. Channels located on a broadcast or cable guide that are nearest the most popular channels are much more likely to attract viewer attention, he said. Since PMCM’s station relocations and circumstances are seen as unique, it’s not likely the case will have many repercussions for other broadcasters, said Garvey Schubert's Melody Virtue. “It’s kind of a purple cow,” she said. The issue of virtual channel assignment could rise again as stations are rejiggered through the post-incentive auction repacking, she said.

PMCM also disputed FCC handling of its carriage disputes to have WJLP carried on channel 3 by cable carriers, and said the Spectrum Act prevents the agency from changing a TV station’s channel until after the incentive auction repacking process was complete. That ban expired before PMCM’s legal filings and the broadcaster doesn’t have standing, the FCC said. On cable carriage, the company's arguments that carriage rules require carriage under a station’s radio frequency channel rather than its virtual channel would cause “widespread disruption,” the agency said. “Stations around the country could demand cable carriage on their radio frequency channel numbers and displace the established local stations that currently occupy those slots.” The meaning of “over the air channel” in the rules is “plain on its face,” PMCM said. “An over-the-air channel is associated with the particular frequency on which a station transmits its signal through the air to viewers.”