United States Court of Appeals 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
 
Argued October 18, 2012 Decided December 14, 2012 
 
No. 11-1330 
 
PMCM TV, LLC, 
APPELLANT 
 
v. 
 
FEDERAL COMMUNICATIONS COMMISSION, 
APPELLEE 
 
 
On Appeal from an Order of the  
Federal Communications Commission 
 
 
Donald J. Evans argued the cause for appellant.  With 
him on briefs were Harry F. Cole and Anne Goodwin Crump.  
 
Joel Marcus, Counsel, Federal Communications 
Commission, argued the cause for appellee. On the brief were 
Austin C. Schlick, General Counsel, Peter Karanjia, Deputy 
General Counsel, Richard K. Welch, Deputy Associate General 
Counsel, and Laurence N. Bourne, Counsel.  C. Grey Pash 
Jr., Counsel, entered an appearance. 
 
Before: TATEL, GARLAND, and KAVANAUGH, Circuit 
Judges. 
 
 
 
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Opinion for the Court filed by Circuit Judge TATEL. 
 
TATEL, Circuit Judge: Section 331(a) of the 
Communications Act directs the Federal Communications 
Commission to approve “reallocations” of very high frequency 
(VHF) television channels to States currently lacking such a 
channel. Relying on this provision, appellant filed an 
application to reallocate VHF channels from Nevada and 
Wyoming to New Jersey and Delaware. The Commission 
denied the application, interpreting section 331(a) to require 
reallocations of channels only between neighboring locations. 
Because the Commission’s decision conflicts with the statute’s 
text and purpose and because appellant can move its channels 
without creating signal interference, we reverse. 
 
I. 
       For most of broadcast television’s history, VHF 
channels have enjoyed substantial technical advantages over 
other broadcasting methods. Reallocation of Channel 2 from 
Jackson, Wyoming to Wilmington, Delaware & Reallocation of 
Channel 3 from Ely, Nevada to Middletown Township, New 
Jersey, 26 F.C.C. Rcd. 13,696, 13,697 (2011) (“FCC Order”). 
Indeed, by the 1950s, most metropolitan areas across the 
eastern seaboard had VHF stations. But the Commission had 
allocated no VHF channels to Delaware and only a single VHF 
channel, which was operating non-commercially, to New 
Jersey. Id. at 13,697. The reason for this was that interference 
from VHF stations broadcasting in New York City, 
Philadelphia, and Baltimore prevented placing additional 
channels in New Jersey and Delaware. Id. at 13,697–98. 
People living in these two States could thus receive VHF 
programming only by tuning in to New York, Pennsylvania, or 
Maryland stations. New Jersey Coalition for Fair 
Broadcasting v. FCC, 574 F.2d 1119, 1121–22 (3d Cir. 1978). 
 
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      The dispute before us today is the latest in a 
decades-long effort to correct this problem. In 1980, New 
Jersey Senators Bill Bradley and Pete Williams petitioned the 
Commission to “reallocate” a New York VHF channel to New 
Jersey. Petition to Reallocate VHF-TV Channel 9 from New 
York, New York, to a City Within the City Grade Contour of 
Station WOR-TV, 84 F.C.C. 2d 280–83 (1981). Moving a 
channel from neighboring New York could be accomplished 
without creating interference because the newly-established 
New Jersey channel would simply fill the void left by the 
vacated New York channel.  
 
Without waiting for the Commission to act, Senator 
Bradley introduced the statute at issue here. Enacted by 
Congress as part of the Tax Equity and Fiscal Responsibility 
Act of 1982, Pub L. No. 97-248, 96 Stat. 324, 641, the 
provision, now codified as section 331(a) of the 
Communications Act, 47 U.S.C. § 331(a), states: 
 
It shall be the policy of the Federal 
Communications Commission to allocate 
channels for very high frequency commercial 
television broadcasting in a manner which 
ensures that not less than one such channel shall 
be allocated to each State, if technically 
feasible. In any case in which [sic] licensee of a 
very high frequency commercial television 
broadcast station notifies the Commission to the 
effect that such licensee will agree to the 
reallocation of its channel to a community 
within a State in which there is allocated no 
very high frequency commercial television 
broadcast channel at the time [sic] such 
notification, the Commission shall, 
notwithstanding any other provision of law, 
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order such reallocation and issue a license to 
such licensee for that purpose pursuant to such 
notification for a term of not to exceed 5 years 
as provided in section 307(d) of this title. 
 
Prompted by section 331(a)’s second sentence, the 
Commission granted a petition by a New York channel to 
move to New Jersey. FCC Order, 26 F.C.C. Rcd. at 13,698–99. 
An unsuccessful competitor for the license appealed the 
Commission’s decision to this Court, contending that New 
Jersey was not “a State in which there is allocated no [VHF] 
commercial television broadcast channel” because the 
non-commercial VHF station operating there had actually been 
allocated as a commercial channel. In Multi-State 
Communications, Inc. v. FCC, 728 F.2d 1519, 1522–24 (D.C. 
Cir. 1984), we relied on Senator Bradley’s extensive 
involvement in the bill’s passage to reject this textual argument 
and hold that the statute did apply to New Jersey. “Construing 
a statutory term,” we explained, “requires more than a 
superficial and isolated examination of the statute’s plain 
words.” Id. at 1522. We also rejected the competitor’s 
argument that other provisions of the Communications Act 
required a comparative hearing, finding that interpretation 
inconsistent with the statutory text that “the Commission shall, 
notwithstanding any other provision of law, order such 
reallocation and issue a license.” Id. at 1524–25 (emphasis 
omitted). We concluded that section 331(a) “displaced the 
normal procedures for channel reallocation as well as the 
normal procedures for issuing licenses, including the 
requirement of a comparative hearing.” Id. at 1525. 
 
       Flash forward to 2009 when the United States 
transitioned from analog to digital television broadcasting. 
Because VHF is poorly suited for digital broadcasting, the 
Commission allowed several stations to substitute other 
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channels for their VHF allotments. PMCM TV, LLC c/o Harry 
F. Cole, Esq., 24 F.C.C. Rcd. 14,588, 14,595 & n.38 (2009) 
(“Bureau Decision”). As a result, New Jersey and Delaware 
once again had no VHF stations. But unlike when section 
331(a) was enacted, the digital transition made it technically 
feasible to allocate new VHF channels to New Jersey and 
Delaware on vacated airwaves without creating signal 
interference. FCC Order, 26 F.C.C. Rcd. at 13,707–08. 
 
      Within days of the digital transition and setting the stage 
for the case before us, PMCM, a television station operator, 
proposed to reallocate its Nevada and Wyoming VHF channels 
to New Jersey and Delaware, respectively. Id. at 13,699. The 
Commission’s Media Bureau denied the request. Although 
acknowledging that both moves could be accomplished 
without creating signal interference, the Bureau found that the 
proposed moves were not “reallocations” within the meaning 
of section 331(a)’s second sentence. Bureau Decision, 24 
F.C.C. Rcd. at 14,594 n.33, 14,595. In doing so, the Bureau 
conceded that the term “reallocation” was susceptible to two 
different meanings. Id. at 14,590–91. Under the broader 
interpretation, advocated by PMCM, the Commission would 
“consider any allocation of a channel to a state without a VHF 
channel as a ‘reallocation’ if the proponent currently operates a 
station on the same channel somewhere in the United States 
and agrees to terminate service on that channel and move to the 
unserved state to operate on the same channel there.” Id. at 
14,590. The Bureau observed that “although PMCM asserts 
that its proposals are technically feasible, [PMCM] contends 
that the Commission must order such ‘reallocation’ even if it is 
not technically feasible because the second sentence of Section 
331 has no explicit technical feasibility condition.” Id. 
Rejecting PMCM’s interpretation of “reallocation,” the Bureau 
concluded that the word meant “the shifting of a channel 
allocation from one community to another community under 
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circumstances where the channel cannot be used 
simultaneously at both locations due to interference concerns.” 
Id. at 14,593. Under this narrower reading, the second sentence 
would apply to moves between neighboring locations, such as 
from New York City to New Jersey, but not to moves between 
distant locations, such as those proposed by PMCM. 
 
      The Commission denied PMCM’s application for 
review. FCC Order, 26 F.C.C. Rcd. at 13,708. Conceding that 
PMCM’s proposed moves would cause no interference, the 
Commission confirmed the Bureau’s interpretation of 
“reallocation,” explaining that “it is more reasonable to 
interpret the term to mean the moving of a VHF channel to a 
new state under circumstances where the channel cannot be 
used simultaneously at the authorized and proposed new 
location because such dual operations would cause 
interference.” Id. at 13,702.  
 
      PMCM now appeals. 
 
II. 
      Congress enacted section 331(a) to solve a specific 
problem existing at the time of its passage—the lack of a 
commercial VHF station in New Jersey. Our task is to 
determine how section 331(a) applies to a situation not 
contemplated by Congress. Although this is hardly an unusual 
undertaking for this Court, it is unusually challenging here 
because Congress held no hearings on section 331(a), passed it 
as a rider to an unrelated tax bill, and used language we have 
found cannot be interpreted literally. See Multi-State 
Communications, 728 F.2d at 1522–24. 
 
      The parties believe that this case turns on the word 
“reallocation” in section 331(a)’s second sentence, although 
they disagree about what the word means. PMCM contends 
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that section 331(a) uses the term without “limiting condition,” 
Appellant’s Br. 19, and that its proposed moves fall under the 
statute’s literal language because New Jersey and Delaware are 
“State[s] in which there is allocated no very high frequency 
commercial television broadcast channel at the time [of] such 
notification,” 47 U.S.C. § 331(a). Although conceding that its 
interpretation would require the Commission to approve 
reallocations that cause signal interference, PMCM maintains 
that the omission of the words “technical feasibility” from 
section 331(a)’s second sentence “invites any commercial 
VHF licensee to fill an allocation gap created by the 
Commission’s failure to comply with the first sentence.” 
Appellant’s Br. 25. For its part, the Commission believes that 
“reallocation” refers only to moves between adjacent locations 
“because technical feasibility is assured in situations involving 
reallocations of channels to nearby communities where the two 
allocations are mutually exclusive.” FCC Order, 26 F.C.C. 
Rcd. at 13,702. Although conceding that PMCM’s proposed 
reallocations would themselves cause no interference, the 
Commission warns that under PMCM’s broader reading of 
section 331(a), it “would be required to grant any move request 
even if it would cause harmful interference to existing 
stations.” Appellee’s Br. 34. 
 
In our view, the parties’ differing interpretations suffer 
from insurmountable problems. PMCM’s interpretation 
creates the potential for signal interference, which would leave 
viewers watching static. Given the basic purpose of the 
Communications Act—to ensure interference-free 
broadcasting—PMCM’s interpretation makes little sense. See, 
e.g., National Broadcasting Co. v. FCC, 516 F.2d 1101, 1110 
(D.C. Cir. 1974) (“Congress created the Federal 
Communications Commission and its predecessor, the Federal 
Radio Commission, because the available space on the 
electromagnetic spectrum was far exceeded by the number of 
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those who would use it.”). Had Congress intended to alter this 
fundamental element of telecommunications policy, we doubt 
it would have done so without hearings and in a two-sentence 
rider to an entirely unrelated tax bill. 
 
      The Commission’s interpretation is equally unsatisfying. 
For one thing, nothing in section 331(a)’s text limits the second 
sentence to “situations involving reallocations of channels to 
nearby communities where the two allocations are mutually 
exclusive.” FCC Order, 26 F.C.C. Rcd. at 13,702. At oral 
argument, Commission counsel conceded that reallocation is 
neither a defined term under the Communications Act nor a 
term commonly used by the Commission. See Oral Arg. Rec. 
23:43–24:39. The Commission also concedes that it has used 
the word “allocation” to refer to any channel allotment without 
regard to geography. See, e.g., Oversight of the Radio and TV 
Broadcast Rules, 1 FCC Rcd. 849, 849 (1986) (“After 
allocating frequencies for broadcasting purposes, the 
supervising Mass Media Bureau allots frequencies to 
geographical areas in the U.S.A. and its territories and 
possessions for specific services therein.”). Moreover, the 
Commission’s interpretation conflicts with Congress’s plainly 
stated goal to “ensure[] that not less than one [VHF] channel 
shall be allocated to each State, if technically feasible.” 47 
U.S.C. § 331(a). 
 
      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 section 331(a) to ensure that every State has 
at least one VHF station if technically feasible—we think 
section 331(a)’s meaning becomes clear despite the statute’s 
linguistic defects. The first sentence directs the FCC to allocate 
VHF channels to each State where technically feasible, and the 
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second sentence directs the Commission to grant any proposed 
technically feasible reallocation to unserved States. Interpreted 
this way, section 331(a) fulfills congressional intent: it ensures 
that every State will have a VHF station so long as that goal can 
be accomplished without causing signal interference. This is 
the best interpretation of section 331(a) because it reads the 
two sentences as a coherent whole and is consistent with the 
basic purpose of the Communications Act. 
 
      In reaching this conclusion, we realize, as PMCM 
repeatedly reminds us, that unlike section 331(a)’s first  
sentence, its second sentence does not mention technical 
feasibility. But if, as we think, the second sentence functions as 
a subpart of the first, then Congress had no need to mention 
technical feasibility in the second sentence. Nor is it significant 
that the second sentence contains the phrase “notwithstanding 
any other provision of law.” As we explained in Multi-State 
Communications, this language simply serves to “displace[] 
the normal procedures for channel reallocation as well as the 
normal procedures for issuing licenses.” 728 F.2d at 1525. 
 
III. 
      Given the foregoing and given the Commission’s  
concession that PMCM’s proposal is technically feasible, we 
reverse and remand to the Commission with instructions to 
approve the reallocations. 
 
     So ordered. 
 
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