Court Overrules FCC on VHF Channel Relocation

WASHINGTON – A federal appeals court has ruled to allow the owner of two VHF TV station licenses to move them to different markets. In doing so, the U.S. Court of Appeals for the D.C. Circuit has reversed a previous decision by the Federal Communications Commission to deny the transfer. The case involves PMCM TV, a privately owned broadcast company based in Wall, N.J. that held VHF frequency assignments in Nevada and Wyoming. Following the 2009 digital transition, PMCM petitioned the FCC to transfer the licenses to New Jersey and Delaware, which that were left without VHF assignments. Federal law requires that each state have at least one VHF TV station. The commission denied PMCM’s request and auctioned licenses in 2011. PMCM qualified to bid, but the licenses were won by Western Pacific Broadcast, LLC, a company formed by Richland Towers in Tampa, Fla., which paid around $4 million for the pair.

PMCM’s attorneys appealed. The court reversed the FCC on Friday because its “decision conflicts with the statute’s purpose, and because the appellant can move its channels without creating interference.”

The linchpin of the case was the definition of the word, “reallocation.” PMCM took it to apply to operating VHF stations that agreed to terminate service and move to the unserved state. The FCC took it to mean “the shifting of a channel allocation from one community to another.” The court wasn’t particularly pleased with either interpretation.

“Setting aside the parties’ unilluminating dispute over the meaning of ‘reallocation and focusing on the two things we do know about Congressional intent—that Congress passed the Communications Act to ensure interference-free broadcasting… and that every state has at least one VHF station if technically feasible, we think [the]meaning becomes clear despite the statute’s linguistic defects,” the ruling stated.

The court said that the statute “directs the commission to grant any proposed technically feasible reallocation to unserved states.”

PMCM was represented by Fletcher, Heald & Hildreth.