IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT In re ) ) PMCM TV, LLC, ) No. 14-1238 ) Petitioner ) ) OPPOSITION OF THE FEDERAL COMMUNICATIONS COMMISSION TO EMERGENCY PETITION FOR WRIT OF MANDAMUS The Federal Communications Commission opposes the petition of PMCM TV, LLC, for a writ of mandamus directing the agency to “rescind or stay” an agency order issued on November 7, 2014 (Order) (Pet. Attach. A). The Order suspended program test authority for PMCM’s recently launched television station, WJLP-TV, effective November 10, 2014, at 12 p.m., Eastern Standard Time, unless and until PMCM certified it would operate the station using “virtual” channel 33, as the agency had directed on October 23, 2014.1 To obtain a writ of mandamus, PMCM must establish that its right to such “drastic and extraordinary” relief is “clear and indisputable.” Cheney v. U.S. Dist. Court of the Dist. of Columbia, 542 U.S. 367, 380, 381 (2004) (quotation marks omitted). To meet that burden requires showing that the FCC has breached “a clear, nondiscretionary duty.” Your Home Visiting Nurse Servs. v. Shalala, 525 U.S. 449, 457 (1999) (quotation marks omitted). In addition, for a writ of 1 On November 12, 2014, the agency issued a temporary administrative stay of the Order “to permit orderly briefing” in this Court. PMCM TV, LLC, Letter Order at 1 (Media Bur. Video Div. 2014) (Temporary Stay Order) (attached as Exhibit 1). USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 1 of 119 2 mandamus that would operate as a stay, PMCM must make “a clear showing” that it can satisfy the four traditional elements for preliminary injunctive relief: (1) likelihood of success on the merits, (2) irreparable harm, (3) absence of harm to other interested parties, and (4) benefit to the public interest. Winter v. NRDC, 555 U.S. 7, 22 (2008); see WMATC v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). For the reasons set forth below, PMCM fails to show that it has a clear and indisputable right to mandamus relief, or that it can meet the stringent test for a stay. As we explain, the Order reasonably preserves the agency’s ability to consider and resolve a technical channel-tuning dispute between several digital television stations in an orderly way. PMCM cannot show that the agency abused its broad discretion in taking such an interim measure, nor has PMCM shown it will incur irreparable harm if required to operate its station using virtual channel 33 while the FCC resolves the underlying dispute. BACKGROUND This case involves a dispute over what channel number PMCM should use in identifying its television station to digital television receivers. A. Governance of Digital Broadcasters’ Virtual Channel Selection Historically, in the age of analog broadcasting, there was no distinction between the radio frequency channels over which U.S. television stations broadcast their programming and the television channels on which viewers without cable or satellite service received stations’ programming over the air. That changed with the nation’s transition to digital television in 2009. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 2 of 119 3 Today, the channel on which over-the-air viewers receive a station’s programming is determined by a two-part numerical code that all television stations transmit within their digital broadcasts. See Media Bureau Seeks Comment on Request for Declaratory Ruling by Meredith Corporation and ‘Alternative PSIP Proposal’ by PMCM TV, LLC for KVNV(TV), Middletown Township, New Jersey, Public Notice, 29 FCC Rcd 10556, 10556 n.1 (Media Bur. 2014) (Public Notice) (attached as Exhibit 2). That code is known as a station’s “Program System and Information Protocol” (PSIP) channel, and is more colloquially called its “virtual” channel, see Pet. 11, because it can be set irrespective of the radio frequency channel over which the station broadcasts. The first numeral of the PSIP channel is its “major” channel, the second its “minor” channel. See id. Section 73.682(d) of the FCC’s rules prescribes that digital broadcast television signals must comply with certain privately developed engineering protocols that the rule incorporates by reference. See 47 C.F.R. § 73.682(d). The channel identification data a station transmits, for example, must comply with “ATSC A/65C: ‘ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable, Revision C With Amendment No. 1 dated May 9, 2006,’ (January 2, 2006).” Id. Ordinarily, digital television stations are able to implement the required ATSC protocol without need for FCC intervention. But the agency has the clear authority to address any problems that arise. See 47 U.S.C. § 154(i). On occasion, for example, the FCC has intervened to ensure an appropriate application of the ATSC protocol when stations have expressed concern to the agency that another station with an overlapping service area was using, or might plan to use, USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 3 of 119 4 the same virtual channel number. E.g., Amendment of Section 73.622(i), Post- Transition Table of DTV Allotments, Television Broadcast Stations (Seaford, Delaware), Report and Order, 25 FCC Rcd 4466, 4472, para. 15 (Media Bur. Video Div. 2010) (Seaford Order), subsequent history omitted. B. Reallocation of Radio Frequency Channel 3 from Nevada to New Jersey When broadcast television signals were transmitted in analog form, radio frequency channels characterized as “very high frequency” (VHF) “enjoyed substantial technical advantages over other broadcasting methods.” PMCM TV, LLC v. FCC, 701 F.3d 380, 381 (D.C. Cir. 2012). In 1982, concerned that there were no VHF stations operating commercially in New Jersey, Congress passed a statute, codified as Section 331(a) of the Communications Act, 47 U.S.C. § 331(a), to facilitate the “reallocation” of a New York VHF channel to New Jersey, PMCM TV, 701 F.3d at 382. The next year, pursuant to Section 331(a), the FCC granted a request by the licensee of WOR-TV in New York City to reallocate channel 9 to New Jersey, giving that state “a first commercial VHF station.” Petition to Reallocate VHF Television Channel 9 from New York, New York, to a City Within the City Grade Contour of Station WOR-TV, Report and Order, 53 Rad.Reg. 2d (P&F) 469, 470, para. 2 (1983), aff’d, Multi-State Commc’ns v. FCC, 728 F.2d 1519 (D.C. Cir. 1984). For technological reasons, however, VHF spectrum is in some instances “poorly suited for digital broadcasting.” PMCM TV, 701 F.3d at 382–83. In part for that reason, “when the United States transitioned from analog to digital television broadcasting” in 2009, the FCC “allowed several stations to substitute other [radio USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 4 of 119 5 frequency] channels for their VHF allotments.” Id. WOR (by then using the call sign WWOR) vacated its VHF channel 9 in exchange for ultra-high frequency (UHF) spectrum. Reallocation of Channel 2 from Jackson, Wyoming to Wilmington, Delaware, 26 FCC Rcd 13696, 13699, para. 6 (2011), rev’d, PMCM TV, 701 F.3d 380. “As a result, New Jersey . . . once again had no [commercial] VHF station[].” PMCM TV, 701 F.3d at 383. PMCM thereafter sought to have the FCC reallocate VHF channel 3 from Ely, Nevada, to Middletown Township, New Jersey, see PMCM TV, 701 F.3d at 383, where it could be used for broadcasts reaching the New York City media market. Initially, the FCC concluded that Section 331(a) did not require that reallocation. See id. On PMCM’s appeal, this Court reversed. See id. at 385. The FCC thereupon reallocated VHF channel 3 as PMCM desired. See Reallocation of Channel 3 from Ely, Nevada to Middletown Township, New Jersey, Amendment of Section 73.622(i), Post-Transition Table of DTV Allotments, Television Broadcast Stations, Report and Order, 28 FCC Rcd 2825 (Media Bur. 2013) (2013 Reallocation Order) (attached as Exhibit 3). C. PMCM’s Application for a Construction Permit In May 2013, PMCM applied to the FCC for a construction permit to build a new broadcast facility. See PMCM TV, Letter Order at 1 (Media Bur. Video Div. 2014) (Permit Order) (attached as Exhibit 4). In February 2014, Meredith Corporation, licensee of WFSB(TV), Hartford, CT, filed an informal objection to PMCM’s application. See id. at 1 & n.2. With the digital television transition, Meredith’s station now broadcasts over radio frequency channel 33, but employs USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 5 of 119 6 channel 3 as its virtual channel and has identified itself to viewers as “Channel 3” since 1957. See Meredith Informal Objection 4 (Feb. 18, 2014) (attached as Exhibit 5). Because the station PMCM sought to launch would have a service area overlapping with that of Meredith’s station, Meredith asked the FCC to direct PMCM to use virtual channel 33, or to make some other assignment instead of virtual channel 3. See id. at 2. Among other things, Meredith argued that its proposal would protect “hundreds of thousands of viewers in the overlap area” from “substantial virtual interference,” as well as permit Meredith’s station to “maintain [its] local branding.” Id. at 3, 4, 5. The Video Division of the FCC’s Media Bureau nonetheless granted PMCM’s construction permit application in April 2014, dismissing Meredith’s informal objection as premature. Permit Order at 2. D. Subsequent FCC Proceedings Meredith sought reconsideration of the order granting PMCM’s construction permit application, and at the same time requested a declaratory ruling that PMCM’s New Jersey station “may not commence program tests on Virtual Channel 3.” Meredith Petition for Reconsideration and Request for Declaratory Ruling 1 (May 22, 2014) (attached as Exhibit 6). Meanwhile, PMCM filed an “Alternative PSIP Proposal” with the FCC. See PMCM Alternative PSIP Proposal (Aug. 8, 2014) (attached as Exhibit 7). PMCM proposed, in effect, that its station and Meredith’s share virtual channel 3, with Meredith’s station operating over channels 3.1 through 3.9, and PMCM’s station using channel 3.10 (as well as higher channels—3.11, 3.12, etc.—for any future USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 6 of 119 7 programming streams). See Alternative PSIP Proposal 3. PMCM also made a “[c]ontingent [w]aiver [r]equest,” to the extent the FCC concluded its alternative proposal was “inconsistent with the Commission’s rules or the ATSC standards.” Id. at 11. On September 12, 2014, the Media Bureau issued a public notice opening a docketed proceeding, MB Docket No. 14-150, to receive public comment on Meredith’s request for declaratory ruling and PMCM’s alternative proposal. See Public Notice, 29 FCC Rcd at 10556. The public notice established an October 14, 2014, deadline for comments and set October 29, 2014, as the deadline for reply comments. See id. E. WJLP’s Program Testing and Disregard for the Interim Order On September 29, 2014, PMCM notified the FCC that it had completed construction of its new broadcasting facility. Interim Order at 2. By operation of Section 73.1620(a)(1) of the FCC’s rules, 47 C.F.R. § 73.1620(a)(1), that notification secured the authority for PMCM’s station to begin “program testing,” contingent upon PMCM’s filing a license application within 10 days’ time—which PMCM subsequently filed, and which remains pending. See Pet. 9. On or about September 30, 2014, PMCM’s station commenced broadcasting. See Interim Order at 2. Almost immediately thereafter, on October 3, 2014, Meredith, CBS Broadcasting Inc., and ION Media License Company jointly complained to the FCC that PMCM’s station was operating with the channel identification code 3.10, which they argued the station was not entitled to use without first obtaining a USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 7 of 119 8 “waiver” (presumably of 47 C.F.R. § 73.682(d), the FCC rule incorporating the ATSC protocol). See Interim Order at 2. Like Meredith, CBS is the licensee of a television station—KYW-TV, Philadelphia, Pennsylvania—that uses virtual channel 3 in a portion of the intended service area for PMCM’s station. See id. ION is the licensee of WPXN-TV, New York, New York, which Cablevision Systems Corporation carries on cable channel 3 in the New York designated market area. See id. In their joint letter, Meredith, CBS, and ION asked that the FCC “immediately notify [PMCM] that any further equipment or program tests initiated by [WJLP-TV] . . . must use virtual channel 33 pending final action by the Commission in [MB Docket No. 14-150].” Interim Order at 2 (alterations in original) (quoting the joint letter). In a response filed October 7, 2014, PMCM disagreed, but acknowledged that “[t]he filings in MB Docket 14-150 will presumably guide the Commission’s [final] decision” on what virtual channel number to assign PMCM’s station. See Letter from Donald J. Evans 4 (Oct 7. 2014) (attached as Exhibit 8). Having considered both the incumbent licensees’ joint letter and PMCM’s response, the Video Division issued the Interim Order on October 23, 2014. See Interim Order at 2–3. The Division observed that the pleading cycle in Media Bureau Docket No. 14-150 had not yet closed. Id. at 2. The Division also took account of the incumbent licensees’ concern that allowing PMCM’s station to use the channel identification code 3.10 during the pendency of the docketed proceeding would cause “viewer confusion” and diminish “the equity and brand USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 8 of 119 9 identification [that the incumbent licensees] have built on their channels over many years,” whereas PMCM’s station “has no existing identification with virtual channel 3 among . . . potential viewers” in its new service area. Id. (quoting the incumbent licensees’ joint letter). Against that backdrop, the Division elected to make an “interim assignment of virtual channel 33 for use by WJLP-TV” during the pendency of the docketed proceeding. Id. at 3. The Interim Order expressly “acknowledge[s] that PMCM has raised a number of arguments why it should not be required to use virtual channel 33,” id., and states that the Division’s interim channel assignment is “without prejudice to these pending arguments and PMCM’s ‘Alternative PSIP Proposal’ to use virtual channel 3.10,” id. at 4. Although PMCM took no immediate steps to appeal or seek reconsideration of the Interim Order, PMCM continued to operate its station using the channel identification code 3.10. The incumbent licensees alerted the FCC to that continued activity on November 4, 2014, see Joint Letter 1 (Nov. 4, 2014) (attached as Exhibit 9), and the New York Field Office of the FCC’s Enforcement Bureau verified that PMCM’s station was still using the 3.10 code as of November 7, 2014. See Order at 2. “Because station WJLP-TV [was] operating in a manner inconsistent with the [Interim Order] directing the station to use virtual channel 33 on an interim basis,” the Division suspended the station’s program test authority “effective 12:00 p.m., EST, November 10, 2014.” Id. at 3. The Division’s Order makes clear, however, that PMCM could preserve its authority to operate the station by certifying that it would do so “using virtual channel 33 on an interim basis, as specified in the [Interim Order].” Id. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 9 of 119 10 On November 10, 2014, PMCM filed an application for review by the full Commission of both the Order and the Interim Order. See PMCM Application for Review i, 1 (Nov. 10, 2014) (Pet. Attach. F). In conjunction with its application for review, PMCM moved for an administrative stay of those orders. See PMCM Emergency Motion for Administrative Stay 1 (Pet. Attach. E). Before the FCC could address those filings, PMCM filed its petition for a writ of mandamus in this Court. To permit orderly briefing here, the Video Division on its own motion imposed a temporary stay of the Order until December 1, 2014, at 12 p.m., Eastern Standard Time. See Temporary Stay Order at 1. In view of that temporary stay, the Division has also suspended the briefing schedule with regard to PMCM’s administrative stay motion (but not the application for review) until further notice. PMCM TV, Letter Order at 2 (Media Bur. Video Div. 2014) (attached as Exhibit 10). The notice and comment proceeding concerning Meredith’s request for declaratory ruling and PMCM’s alternative proposal remains pending. ARGUMENT THE PETITION SHOULD BE DENIED. PMCM acknowledges that the relief it seeks in its mandamus petition, filed under the All Writs Act, “is in the nature of a stay.” Pet. 19. A party seeking a stay through mandamus must satisfy the traditional elements for such relief: (1) it will likely prevail on the merits, (2) it will suffer irreparable harm unless a stay is granted, (3) other interested parties will not be harmed if a stay is granted, and (4) a stay will serve the public interest. See Reynolds Metals Co. v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985); Holiday Tours, 559 F.2d at 843. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 10 of 119 11 A stay is an “intrusion into the ordinary processes of administration” and thus “is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 427 (2009) (quotation marks omitted). To merit such an “extraordinary remedy,” petitioners must make “a clear showing” that they are “entitled to such relief.” Winter, 555 U.S. at 22. That is particularly so—as PMCM itself recognizes, Pet. 17–18—when a party seeks a stay through the “drastic” vehicle of mandamus relief, Cheney, 542 U.S. at 380. PMCM has failed to make the necessary showing here. A. PMCM Has Not Demonstrated a Likelihood of Success on the Merits, Let Alone a Clear Entitlement to Relief. PMCM is not likely to prevail in challenging the Order, which is simply intended to preserve the pre-existing viewing landscape in the relevant service areas while the agency completes its pending notice and comment proceeding. PMCM’s laundry list of arguments that the ATSC protocol and various provisions of the Communications Act foreclose the agency’s action all are unavailing. 1. The Order Is a Reasonable, Interim Measure Entitled to Deference. This Court has repeatedly recognized that “[s]ubstantial deference must be accorded” to an agency’s interim action intended to “maintain the status quo so that the objectives of a pending . . . proceeding will not be frustrated.” MCI Telecomms. Corp. v. FCC, 750 F.2d 135, 141 (D.C. Cir. 1984). Here, until PMCM received program test authority—over Meredith’s informal objection—for its New Jersey station, the Meredith and CBS stations were the only ones in their respective service areas using virtual channel 3. In the Interim Order, the Video Division USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 11 of 119 12 sought to preserve, for the time being, the existing landscape of channel identifications in the established stations’ service areas; at the same time, the Division sought to allow PMCM to operate by assigning its station virtual channel 33, on an “interim” basis, while PMCM’s application for a license was pending and the FCC resolved conflicting interpretations of the ATSC protocol in a notice and comment proceeding. Interim Order at 3. That interim channel assignment is “without prejudice” to any of PMCM’s arguments in the pending proceeding, including PMCM’s proposal to use channel identification code 3.10. Id. at 4. The Order simply enforces the Interim Order in view of PMCM’s deliberate noncompliance. And while directing PMCM to cease its station’s operations using virtual channel 3, the Order leaves PMCM the option of continuing to operate the station using virtual channel 33. Order at 3. PMCM had ample time to comply with the Order; switching to virtual channel 33 would have been a simple matter of resetting the channel code for the station’s signal information. In short, the Order and the Interim Order implement an entirely reasonable interim measure to facilitate the orderly resolution of the dispute between PMCM and the licensees that already operate stations using virtual channel 3 in overlapping service areas. 2. The ATSC Protocol Does Not Foreclose the Order’s Interim Relief. PMCM asserts that ATSC A/65:2013, Annex B, B.1.1 (1) “compels it to use” virtual channel 3, giving its station an “inherent” right to that channel USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 12 of 119 13 assignment. Pet. 20.2 That provision states that for “licensee[s] with an [analog] license” when they “commence[] digital service,” the major channel assignment will correspond to the radio frequency channel the licensee was using “at the time it commenced digital service.” ATSC A/65:2013, Annex B, B.1.1 (1). PMCM’s arguments concerning Annex B.1.1 (1), however, do not undermine the Order. For one, PMCM fails to note that, even if Annex B.1.1 (1) were to support its use of virtual channel 3, the agency would nonetheless have the authority to instruct PMCM to use another virtual channel.3 Beyond that, there is at least a possible question whether PMCM, operating its station under program test authority and awaiting the FCC’s decision on its license application, is a “licensee” within the meaning of Annex B.1.1 (1). There is also uncertainty whether Annex B.1.1 (1) applies when a licensee’s radio frequency channel is reallocated to a new locality. See Interim Order at 3. Instead, as the Interim Order explains, it is possible that the governing provision is Annex B.1.1 (4). See Interim Order at 3 (citing the version of that 2 The version of the ATSC protocol incorporated by reference in the FCC’s current rules is ATSC A/65C, dated January 2, 2006. See 47 C.F.R. § 73.682(d). PMCM has instead attached, as Attachment D to its petition, the most current version of the ATSC protocol (dated August 7, 2013). Because the precise version of the protocol in force does not appear to make a material difference at this stage of litigation, our pleading cites to PMCM’s version. For the Court’s reference, a copy of the incorporated version of the protocol is attached as Exhibit 11. 3 See Second Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television, Report and Order, 19 FCC Rcd 18279, 18346, para. 153 (2004) (“To the extent broadcasters have a unique situation that is not provided for in [the ATSC protocol], the Commission may grant exceptions on a case-by-case basis.”); see also Interim Order at 3 & n.12. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 13 of 119 14 provision codified in 47 C.F.R. § 73.682(d)). That provision states that “[i]f, after February 17, 2009, [a radio frequency] channel previously allotted for [analog operation] in a market is assigned to a newly-licensed DTV licensee in that market, the newly-licensed DTV licensee shall use, as its major_channel_number, the number of the DTV [radio frequency] channel originally assigned to the previous [analog] licensee of the assigned channel.” ATSC A/65:2013, Annex B, B.1.1 (4). In other words, Annex B.1.1 (4) sets forth a rule that a new entrant to a market should use the virtual channel number corresponding to the radio frequency channel number used by the previous incumbent. Under that rule, it was reasonable, at least as an interim measure, to direct “WJLP-TV, as a newly licensed station,” to use “virtual channel 33,” because that is the radio frequency channel of Meredith’s television station. Interim Order at 3.4 In addition, as the Division noted, the “assignment of virtual channel 33 to” PMCM’s station “on an interim basis” was “consistent with the Division’s decision allotting channel 5 to Seaford, Delaware.” Id.; see Seaford Order, 25 FCC Rcd at 4472 (“[P]ursuant to the [ATSC] Standard, the [radio frequency] channel 5 allotment at Seaford will be assigned PSIP channel 36.”). PMCM contends that its alternative proposal to use a “two-part virtual channel number” starting at number 3.10 “is fully compliant with” the ATSC protocol. Pet. 15. In PMCM’s view, the protocol “expressly approves” sharing 4 The Division explained that assigning PMCM’s station virtual channel 26 (the radio frequency channel of the CBS station in Philadelphia) was not possible because that channel was already being used by an overlapping station in New London, Connecticut. See Interim Order at 3. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 14 of 119 15 virtual channels “so long as the station’s respective minor_channel_numbers are appropriately partitioned.” Pet. 20. But by its own terms, the provision upon which PMCM relies, Annex B.1.1 (5), “establishes a limited exception” for stations “own[ed] or control[ed]” by the same licensee. ATSC A/65:2013, Annex B, B.1.1 (5) (emphasis added). It therefore does not expressly “provide for or require the sharing of virtual channels by licensees with overlapping contours that are not commonly owned.” Interim Order at 3. The Division “acknowledge[d]” in the Interim Order “that PMCM has raised a number of arguments why it should not be required to use virtual channel 33,” and that the agency has the power to “grant exceptions to the PSIP Standard on a case-by-case basis.” Interim Order at 3. But in the face of a fair dispute over the appropriate resolution of this technical issue, which the agency had put out for public comment, it was perfectly reasonable for the Division to implement an interim solution—which was at a minimum based on an available interpretation of the governing ATSC protocol—that was “without prejudice to these pending arguments and PMCM’s ‘Alternative PSIP Proposal.’” Interim Order at 3–4. 3. The Order Does Not Violate Section 331(a). PMCM also asserts that, by seeking to require PMCM’s station to use virtual channel 33 on an interim basis, the Order clearly violates 47 U.S.C. § 331(a). See Pet. 2, 8–9. Section 331(a) requires that the FCC “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.” USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 15 of 119 16 47 U.S.C. § 331(a). The FCC has reallocated radio frequency 3 to New Jersey. See 2013 Reallocation Order, 28 FCC Rcd at 2827, para. 5. PMCM contends that assignment of a virtual channel number outside the range of radio frequency channel numbers (2 through 13) allotted to VHF broadcasting violates Section 331(a) because it “would effectively convert WJLP from a VHF station to a UHF station.” Pet. 2. That is incorrect. “UHF” (ultra high frequency) and VHF (very high frequency) are well-understood terms that specify the radio frequency on which a television station transmits its signal. See, e.g., Newton’s Telecom Dictionary 988 (24th ed. 2008) (defining VHF as “[f]requencies from 30 MHz to 300MHz”). PMCM was granted a construction permit to build a station using VHF channel 3, which uses spectrum in the 60–66 MHz range. See 47 C.F.R. § 73.603. But as PMCM concedes, “a station’s DTV channel designation”—that is, its virtual channel—may or may not bear any relation to the over-the-air [radio frequency] channel on which the station’s signal is first transmitted.” Pet. 10. Section 331(a), which was enacted in 1982, plainly does not speak to issues concerning virtual channels, which are creatures of the far more recent transition to digital broadcasting. 4. The Order Does Not Violate Section 1452(g). PMCM also claims (Pet. 3, 18) that assigning virtual channel 33 for its station’s interim use violates 47 U.S.C. § 1452(g), which, in connection with authorizing a broadcast spectrum incentive auction, prohibits the FCC from assigning “a broadcast television licensee from a very high frequency television channel to an ultra high frequency television channel, unless . . . such a USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 16 of 119 17 reassignment will not decrease the total amount of ultra high frequency spectrum made available for allocation under this section.” 47 U.S.C. § 1452(g)(1)(B). Again, PMCM’s argument is premised on the unsupported contention that requiring PMCM’s station to use virtual channel 33 on an interim basis “effectively makes WJLP a de jure UHF station.” Pet. 3. As we have shown, that is incorrect. In any event, Section 1452(g) governs the availability of “spectrum.” 47 U.S.C. § 1452(g). The statute in no way concerns virtual channel assignments, which have no bearing on the spectrum that a broadcast television station is licensed or permitted to use. Thus, contrary to PMCM’s suggestion, see Pet. 3, requiring PMCM’s station to use virtual channel 33 (even on a permanent basis, let alone on an interim basis) would not in any way “decrease the total amount of ultra high frequency spectrum made available for reallocation” in the course of the contemplated spectrum auction, id. (emphasis added) (quoting 47 U.S.C. § 1452(g)(1)(B)). No matter what channel identification code the FCC requires PMCM’s station to transmit, the broadcast spectrum allocated for the station’s broadcasts remains radio frequency channel 3. 5. The Order Does Not Violate Section 316. Finally, PMCM is wrong that the Order impermissibly modifies its construction permit. See Pet. 4–5, 18. Section 316 of the Communications Act provides, in relevant part, that no FCC modification of a construction permit “shall become final until the holder of the . . . permit shall have been notified in writing of the proposed actions and the grounds and reasons therefor, and shall” have received a “reasonable opportunity, of at least thirty days, to protest such proposed USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 17 of 119 18 order of modification.” 47 U.S.C. § 316(a)(1). But the Division did not modify PMCM’s construction permit by ordering PMCM to operate its station using virtual channel 33 on an interim basis. As PMCM recognizes, “WJLP’s construction permit contains no reference whatsoever to any virtual channel number, whether one-part or two-part.” Pet. 16. B. PMCM Has Not Demonstrated Irreparable Injury. PMCM’s assertions of harm arise not from the Order but from PMCM’s own decisions. The Order does not “force WJLP off the air for the indefinite future.” Pet. 21. To the contrary, the Order makes clear that PMCM’s station can continue operating under program test authority if PMCM certifies that, for the time being, it will operate the station using virtual channel 33. See Order at 2; Interim Order at 3. That certification is within PMCM’s power to provide. In short, PMCM has taken itself off the air. PMCM does acknowledge at one point in the petition that it could continue to operate its station using virtual channel 33. See Pet. 22. PMCM asserts, however, that doing so would “create substantial audience confusion” because “audience members have become accustomed to finding” the station on “the VHF end of television listings.” Id. The magnitude of such confusion—for a station that has been on the air just since September 30—may be questioned. In any event, PMCM plainly has the power to mitigate such confusion by informing its audience, through advertising, announcements on its website, or otherwise, that it has moved USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 18 of 119 19 (for the time being) to virtual channel 33. Any temporary loss in an audience that can be won back is not “irreparable.” C. A Stay Would Harm Third Parties and Disserve the Public Interest, and the Balance of Equities Strongly Disfavors a Stay. Offsetting PMCM’s claims of harm, Meredith and CBS assert that allowing PMCM’s station to use virtual channel 3 would engender countervailing confusion among their audiences of much longer standing. See Reply Comments of Meredith and CBS 4 (Oct. 29, 2014) (attached as Exhibit 12). In Meredith’s case, the record shows that viewers have identified its station as “Channel 3” for over 50 years. See Meredith Informal Objection 4. More significantly, a stay would encroach on the FCC’s statutorily conferred ability to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” 47 U.S.C. § 154(j). The agency has determined that the dispute between PMCM and the licensees of established Channel 3 stations in service areas that PMCM’s station would reach raises questions that are best considered and resolved in the context of a notice and comment proceeding. Unhappy with the agency’s chosen procedure, PMCM opted to ignore the Video Division’s effort to adopt an interim measure to preserve the pre-existing landscape of television stations identified over the air as “Channel 3” in the relevant service areas until such time as the agency reached a final determination concerning the appropriate virtual channel assignment for PMCM’s station. Under these circumstances, the balance of equities plainly favors the agency’s approach. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 19 of 119 20 * * * * * This case involves a technical disagreement over the terms of an industry protocol for digital broadcasting that has been incorporated in the FCC’s rules. The agency sought to protect its ability to resolve the dispute by adopting an interim measure, which requires a newly constructed station, for the time being, to include channel identification data in its broadcasts that will not breed confusion among long-standing viewers of other stations in its service area. Although PMCM believes its right to use a different channel identification code is clear, it has failed to demonstrate a clear and indisputable right to relief or that it will be irreparably harmed by compliance with the FCC order. Stay and mandamus are not warranted. CONCLUSION For the foregoing reasons, the Court should deny the petition. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 20 of 119 21 Respectfully submitted, Jonathan Sallet General Counsel David M. Gossett Deputy General Counsel Jacob M. Lewis Associate General Counsel /s/ Sarah E. Citrin Counsel Federal Communications Commission 445 12th Street, SW Washington, DC 20554 (202) 418-1537 November 18, 2014 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 21 of 119 EXHIBIT 1 (Temporary Stay Order) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 22 of 119 Federal Communications Commission Washington, D.C. 20554 November 12, 2014 (Service via Email) Donald J. Evans, Esq. Fletcher, Heald & Hildreth, PLLC 1300 North 17t1 Street, 1 1th Floor Arlington, Virginia 22209 Michael D. Basile, Esq. Cooley LLP 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Mace Rosenstein, Esq. Covington & Burl ing, LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 John Bagwell, Esq. CBS Broadcasting Inc. 51 West 52nd Street New York, New York 10019 Re: PMCM TV, LLC WJLP-TV, Middletown Township, NJ File Nos. BPCDT-20 1 30528AJP and 0000001037 Facility ID No. 86537 DocketNo. 14-150 Counsel: By letter dated November 7, 2014, the Video Division suspended program test authority for station WJLP-TV, Middletown Township, New Jersey, effective 12 pm, EST, November 10, 2014. The letter indicated that the Division would reinstate program test authority for the station upon notification by PMCM TV, LLC, the permittee of the station, that it would operate the station on an interim basis using virtual channel 33, consistent with the Division's directive in a letter order dated October 23, 2014. PMCM filed an Emergency Petition for Writ of Mandamus with the United States Court of Appeals for the District of Columbia Circuit on November 10, asking the court to order the Commission to rescind or stay the effectiveness of the suspension of program test authority. In order to permit orderly briefing before the court, we impose a temporary stay of the suspension of WJLP-TV's program test authority until Monday, December 1, 2014 at 12 pm, EST. In taking this action on our own motion for USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 23 of 119 administrative purposes, we express no view whether PMCM's showings in its Emergency Petition satisfy any of the requirements for a stay. Sincerely, f) Barbara A. Kreisrnan Chief, Video Division Media Bureau cc: Tara M. Corvo, Esq. Frederick W. Giroux, Esq. Seth A. Davidson, Esq. William LeBeau, Esq. Stephen Magu ire/District Director/NY Field Office USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 24 of 119 EXHIBIT 2 (Public Notice) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 25 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 26 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 27 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 28 of 119 EXHIBIT 3 (2013 Reallocation Order) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 29 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 30 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 31 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 32 of 119 EXHIBIT 4 (Permit Order) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 33 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 34 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 35 of 119 EXHIBIT 5 (Informal Objection) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 36 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 37 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 38 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 39 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 40 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 41 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 42 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 43 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 44 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 45 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 46 of 119 EXHIBIT 6 (Petition for Reconsideration and Request for Declaratory Ruling) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 47 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 48 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 49 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 50 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 51 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 52 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 53 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 54 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 55 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 56 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 57 of 119 EXHIBIT 7 (Alternative PSIP Proposal) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 58 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 59 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 60 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 61 of 119 USCA Case #14-1238 Document #1522866 Filed: 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of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 77 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 78 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 79 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 80 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 81 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 82 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 83 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 84 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 85 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 86 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 87 of 119 EXHIBIT 8 (PMCM October 7 Letter) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 88 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 89 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 90 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 91 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 92 of 119 EXHIBIT 9 (Joint Letter) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 93 of 119 October 3, 2014 Ms. Marlene Dortch Secretary Federal Communications Commission 445 12th St. S.W. Washington, D.C. 20045 Re: PMCM TV, LLC KVNV (TV), Middletown Township, New Jersey Alternative PSIP Proposal MB Docket No. 14-150 Construction Permit File No. BPCDT-20130528AJP Dear Ms. Dortch: Meredith Corporation (“Meredith”), ION Media License Company, LLC (“ION”), and CBS Broadcasting Inc. (“CBS”), by their respective attorneys, hereby request that the Media Bureau immediately notify PMCM TV, LLC (“PMCM”) that any further equipment or program tests initiated by KVNV(TV), Middletown Township, New Jersey(“KVNV”), must use virtual channel 33 pending final action by the Commission in the above-referenced proceeding. Meredith is the licensee of WFSB(TV) (“WFSB”), RF channel 33, virtual channel 3, Hartford, Connecticut. CBS is the licensee of KYW-TV (“KYW”), Philadelphia, Pennsylvania, RF channel 26, virtual channel 3. ION is the licensee of WPXN-TV (“WPXN ”), New York, NY, which is carried on Channel 3 on Cablevision cable systems in the New York DMA. PMCM is openly defying the Commission’s rules and causing precisely the harm that the Commission sought to avoid — a conflict over a major channel number — when it incorporated ATSC A/65 into its rules at 47 C.F.R. § 73.682(d). The Commission should not permit PMCM to circumvent either the rule or the ongoing review, in MB Docket No. 14-150, of KVNV’s PSIP assignment. The Media Bureau initiated the proceeding in MB Docket No. 14-150 to determine the appropriate major channel designation for KVNV in view of the objections to PMCM’s proposed use of major channel 3 as KVNV’s virtual channel and PMCM’s alternative proposals concerning KVNV’s major channel designation. By public notice released on September 12, 2014, the Media Bureau requested public comment on PMCM’s “Alternative PSIP Proposal.”1 In that filing, PMCM requests an unprecedented waiver of the Commission’s rules for KVNV to use a two-part virtual PSIP channel 3.10 (with any additional program streams eventually transmitted on KVNV(TV) identified as 3.11, 3.12, etc.). Under PMCM’s alternate proposal, Meredith’s WFSB, which has had over-the-air identification as Channel 3 in its market for 1 See Public Notice, MB Docket No. 14-150, DA 14-1298, released September 12, 2014. USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 94 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 95 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 96 of 119 ATTACHMENT A USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 97 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 98 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 99 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 100 of 119 EXHIBIT 10 (Order Suspending Briefing on Request for Administrative Stay) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 101 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 102 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 103 of 119 EXHIBIT 11 (ATSC A/65C (January 2, 2006)) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 104 of 119 ATSC N65C Program and System Information Protocol, Annex B 2 January 2006 Annex B: Additional Constraints on Virtual Channel Table For the U.S. (Normative) 1. ASSIGNMENT OF MAJOR CHANNEL NUMBER VALUES FOR TERRESTRIAL BROADCAST IN THE U.S. The assignment of major_chann&_number values in the U.S. shall be based on the rules below. 1) For broadcasters with existing NTSC licenses, the major_channeLnumber for the existing NTSC channels, as well as the digital virtual channels, controlled by the broadcaster, shall be set to the current NTSC RF channel number. E.g., assume a broadcaster who has an NTSC broadcast license for RF channel 13 is assigned RF channel 39 for digital ATSC broadcast. That broadcaster is required to use major_channel_number 13 for identification of the analog NTSC channel on RF channel 13, as well as the digital virtual channels it is controlling on RF channel 39. 2) For a new broadcaster without an existing NTSC license, the major_channel_number for the digital virtual channels controlled by the broadcaster shall be set to the FCC assigned RF channel number for ATSC digital TV broadcast. E.g., assume a broadcaster who currently has no NTSC broadcast license applies and receives a license for digital ATSC broadcast on RF channel 49. That broadcaster is required to use major_channel_number 49 for identification of the digital virtual channels that it is controlling on RF channel 49. 3) If during or at the end of the transition period, the RF channel assigned to a broadcaster for digital ATSC broadcast is changed for any reason, the major_channel_number used by that broadcaster shall not change. 4) If, after the transition, a previously used NTSC RF channel in a market is assigned to a newly-licensed DTV broadcaster in that market, the newly-licensed DTV broadcaster shall use, as his major_channel_number, the number of the DTV RF channel originally allocated to the previous NTSC licensee of the assigned channel. 5) If a broadcaster owns or controls broadcast licenses for two or more different RF channels having overlapping service areas, he may use a common major_channel_number for all services on all channels. He may choose the major_channel_number as determined above for any one of the RF channels. The values in the minor_channel_number fields must be partitioned to insure that there is no duplication of the two-part channel number in the DTV service area, including the overlapping DTV service areas of other broadcasters using that same major_channel_number. 6) The two-part channel numbers for other broadcasts may be included in the DTV transport stream, provided that the channel_TSID and source_id are exactly associated with the two- part channel number combinations used by the referenced broadcaster and there is no duplication with those used by any broadcaster whose DTV service'6 area overlaps with the emitting station's DTV service'7 area. 6 CFR 47 73.622(e) [13] CFR 47 73.622(e) [13] 89 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 105 of 119 ATSC N65C Program and System Information Protocol, Annex B 2 January 2006 7) A broadcaster may include in the transmitted multiplex programming originating from a different licensed broadcaster and use the major/minor channel numbers of the original broadcast if the major/minor channel number combinations are coordinated in the local broadcast area to avoid conflicts. The coordination process is beyond the scope of this document. 8) The provisions listed above assign major_channel_number values 2 through 69 uniquely to broadcasters licensed to broadcast Digital ATSC signals and guarantee that the two-part channel number combinations used by a broadcaster will be different from those used by any other broadcaster with an overlapping DTV service8 area. 9) Values for major_channeLnumber from 70 to 99 may be used to identify groups of digital services carried in an ATSC multiplex that the broadcaster wishes to be identified by a different major channel number. Values 70 through 99 must be unique in each potential receiving location or the receiver will not be able to correctly select such services. For example a local broadcaster transmitting community college lectures in its bit stream may want to use a major_channel_number different than its own major_channel_number for the virtual channel carrying the lectures. The assessment of the feasibility of using this capability, as well as the coordination process for assignment of these major_channel_number values is beyond the scope of this document. 10) For a translated signal, the major/minor channel numbers shall remain the same as the original broadcast station unless the major channel conflicts with a broadcaster operating in the service area of the translator, In that case, the translator shall change the major number to a non-conflicting number. 2. REQUIREMENT TO TRANSMIT ANALOG TRANSMISSION SIGNAL ID Broadcasters which reference an NTSC signal by inserting a channel_TSID in a VCT shall cause insertion of an analog Transmission Signal ID within the VBI of each referenced NTSC signal per CEA-608-C [3]. Refer to Annex D Section 9 for a discussion of the use of the analog Transmission Signal ID. IS CFR47 73.622(e) [13] 90 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 106 of 119 EXHIBIT 12 (Reply Comments of Meredith and CBS) USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 107 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 108 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 109 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 110 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 111 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 112 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 113 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 114 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 115 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 116 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 117 of 119 USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 118 of 119 14-1238 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ In re ) ) PMCM TV, LLC, ) No. 14-1238 ) Petitioner ) ______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ) CERTIFICATE OF SERVICE I, Sarah E. Citrin, hereby certify that on November 18, 2014, I electronically filed the foregoing Opposition Of The Federal Communications Commission To Emergency Petition For Writ Of Mandamus with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Donald J. Evans Harry F. Cole Fletcher, Heald & Hildreth, P.L.C. 1300 N. 17th Street -11th Floor Arlington, VA 22209 Counsel for PMCM TV, LLC /s/ Sarah E. Citrin USCA Case #14-1238 Document #1522866 Filed: 11/18/2014 Page 119 of 119