Broadcasters and Broadway Challenge White Spaces Order, Standing Hijinks To Ensue.

Unsurprisingly, the NAB and MSTV have filed a Petition for Review with the D.C. Circuit to try to get last November’s Order permitting unlicensed use of the white spaces overruled. As is the norm, the Petition merely recites the basics of jurisdiction and the general allegation that the Order is “arbitrary, capricious and otherwise not in accordance with law.”

Of perhaps greater interest, Broadcasting and Cable reports that a coalition of Broadway groups is filing in the Second Circuit.

I say “of greater interest” because the Broadway groups have something of a standing problem. Unless they can show they have a license to use a wireless microphone in the broadcast band, the Broadway users have no legal standing to sue. A radio pirate cannot be heard to complain that the FCC has changed the rules and thus made illegal use more difficult. Indeed, given that the entire claim to injury of the Broadway coalition rests on their unauthorized use of equipment without a license for purposes not permitted under the FCC’s rules, I don’t think they even qualify for intervenor status.

Nor am I entirely certain that the wireless microphone manufacturers have standing, although they have a better case. For wireless microphone manufacturers to have standing, they need to show that the possible interference will damage their sales. But again, they have no right to make illegal sales. So they need to argue that their legal market will suffer as a result of the FCC’s decision. That strikes me as speculative, but not nearly as much of a hurdle as the Broadway groups have.

All this does, however, raise a fun strategic question for NAB/MSTV. Do they really want to be seen by the court in the company of radio pirates, with all that baggage muddying the issue? So far, MSTV and NAB have stood staunchly by their politically cuddly radio pirate buddies, compromising their principles for political expediency. But political cuddliness will not count for squat in the D.C. Circuit, whereas standing shoulder to shoulder with groups whose claim to legal injury rests on the proposition that the FCC has increased the risk of harmful interference to their illegal use of wireless microphones may not go down to well with the judges.

As for substance, granted I am not the most impartial of observers, but I think the NAB and MSTV have an extremely difficult case here. Decisions about interference are technical matters deserving of the highest judicial deference. I expect the broadcasters to make much of the supposed inconsistencies with the test results that formed the meat and drink of their arguments below. But the FCC did a very thorough job explaining why it made the decisions it made, how it balanced the relevant interests, and what safeguards it put in place to protect broadcasters from harmful interference.

The NAB and MSTV also face a new set of strategic choices over what to raise before the agency on reconsideration (publication in Fed Reg was February 17, so Petitions for Recon are due March 17). Anything they raise on recon, they cannot raise to the court. Even if someone else raises the issue for them — say a member station or a state NAB — the FCC can always ask the court to defer consideration of the Petition for review pending resolution of the Recon Petitions (after all, the FCC might change its mind, thus making judicial review unnecessary). So the NAB needs to decide whether to push for changes in the rules, risking that this will undercut its effort to have them overruled entirely, or stick to its guns before the DC Circuit and forgo (at least for now) the effort to get rules changed before the agency.

Should be fun all around.

Stay tuned . . . .

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