IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

) In re PMCM TV, LLC, ) No. 16-1380 Petitioner. ) ) 
OPPOSITION OF THE FEDERAL COMMUNICATIONS COMMISSION 
TO PETITION FOR ISSUANCE OF WRIT OF MANDAMUS 

The Court should deny the petition filed by PMCM TV, LLC (“PMCM”) for a writ of mandamus against the Federal Communications Commission. As this Court has emphasized, mandamus is a “drastic” remedy that “is available only in extraordinary situations.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc) (internal quotation marks omitted). PMCM is not entitled to such extraordinary relief because it has failed to show that it has a “clear and indisputable” right to mandamus. Id. (internal quotation marks omitted). 
PMCM seeks a writ directing the FCC to order cable operators in New York City to carry PMCM’s New Jersey television station on cable channel 3. According to PMCM, two statutory provisions—47 U.S.C. §§ 534(b)(6) and 1452(g)— mandate that its station be carried on cable channel 3. Pet. 12-17. But this Court has already held—in orders denying two earlier mandamus petitions filed by PMCM—that neither of those statutes gives PMCM a clear and indisputable right to carriage on channel 3. See In re PMCM TV, LLC, No. 14-1238 (D.C. Cir. Feb. 27, 2015) (per curiam) (“February 2015 Mandamus Denial Order”) (PMCM’s 
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station has no clear and indisputable right to carriage on channel 3 under 47 U.S.C. § 1452(g)); In re PMCM TV, LLC, No. 15-1058 (D.C. Cir. Sept. 23, 2015) (per curiam) (“September 2015 Mandamus Denial Order”) (PMCM’s station has no clear and indisputable right to carriage “on Channel 3 on all cable systems as to which [PMCM] has elected must-carry status” under 47 U.S.C. § 534(b)(6)).  
This is the fourth time since 2010 that PMCM has made an unjustified request for mandamus. On the past three occasions, this Court declined to grant the extraordinary relief requested by PMCM. See In re PMCM TV, LLC, No. 10-1001 
(D.C. Cir. May 12, 2010) (per curiam); February 2015 Mandamus Denial Order; September 2015 Mandamus Denial Order. It should do likewise here. 

BACKGROUND 
This case involves a dispute over whether PMCM is entitled to carriage of its New Jersey television station (WJLP) on cable channel 3 in the New York media market. 

A. Mandatory Cable Carriage Under The Communications Act 
Under Section 614 of the Communications Act of 1934, as amended, 47 
U.S.C. § 534, and the FCC’s implementing rules, see 47 C.F.R. § 76.51 et seq., commercial television broadcast stations may assert mandatory rights to carriage on cable systems in their respective markets. See 47 U.S.C. § 534(a). A station may 
assert these mandatory carriage (or “must-carry”) rights in the market defined by 
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Nielsen Media Research as the station’s “Designated Market Area.” 47 C.F.R. § 76.55(e)(2). 
When a commercial television station asserts must-carry rights, it may elect one of four possible channel positioning options. See 47 U.S.C. § 534(b)(6); 47 
C.F.R. § 76.57(a), (d). Most relevant here, a station may elect carriage on “the cable system channel number on which the … station is broadcast over the air.” 47 
U.S.C. § 534(b)(6); accord 47 C.F.R. § 76.57(a). 
Historically, in the age of analog broadcasting, there was no distinction between the physical “radio frequency” channel over which a U.S. television station broadcast its programming and the channel to which viewers without cable or satellite service tuned their television sets to receive the station’s programming over the air. That changed with the nation’s transition to digital television in 2009. 
Today, the channel on which over-the-air viewers receive a station’s programming is determined by a numerical code that all television stations transmit within their digital broadcasts. That code is known as a “Program System and Information Protocol” (or “PSIP”) channel. See Request for Declaratory Ruling by Meredith Corp. And “Alternative PSIP Proposal” By PMCM TV, LLC for WJLP (Formerly KVNV(TV)), Middletown Township, New Jersey, 30 FCC Rcd 6078, 6079-80 ¶¶ 4-6 (Media Bur. 2015) (“PSIP Declaratory Ruling”). 
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A station’s PSIP channel consists of two numbers. See PSIP Declaratory Ruling, 30 FCC Rcd at 6079-80 ¶ 5. The first of these numbers—the “major” channel number—is the channel number viewers see on their television receiver when they view a digital television station over the air. This “major channel” is often called the station’s “virtual channel” because it can be set irrespective of the radio frequency channel over which the station broadcasts.1 The second number in the PSIP channel—the “minor” channel number—identifies one program service within the group of services defined by the major channel number. For example, a station with PSIP channel 12.3 has a major channel number of 12 and a minor channel number of 3. Under Section 73.682(d) of the FCC’s rules, 47 C.F.R. § 73.682(d), absent a waiver, a station’s PSIP channel must be set based on privately developed protocols that the rule incorporates by reference. See PSIP Declaratory Ruling, 30 FCC Rcd at 6080 ¶ 6. 
Because the channel on which over-the-air viewers receive a station’s programming is no longer tied to the radio frequency channel on which the station physically broadcasts, the FCC has “clarif[ied] the manner in which cable operators are to determine the channel number on which a local commercial … station is ‘broadcast over the air’” for purposes of satisfying must-carry obligations 
1 See Media Bureau Seeks Comment on Request for Declaratory Ruling by Meredith Corp. and “Alternative PSIP Proposal” by PMCM TV, LLC for KVNV(TV), Middletown Township, New Jersey, 29 FCC Rcd 10556, 10556 n.1 (Media Bur. 2014) (“Public Notice”). 
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in the digital era. Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission’s Rules, 23 FCC Rcd 14254, 14259 ¶ 16 (2008) (“2008 Declaratory Order”). The Commission has explained that “any station carried pursuant to mandatory carriage may demand carriage on its major channel number as broadcast in [its] PSIP.” Id.; see also id. at 14259 ¶ 15 (a “cable operator can identify the correct channel location” for must-carry purposes “by reference to the PSIP”); Carriage of Digital Television Broadcast Signals, 16 FCC Rcd 2598, 2635 ¶ 83 (2001) (“Digital Television Order”) (“the channel mapping protocols contained in the PSIP identification stream adequately address [cable channel] location issues” in the digital era); 47 C.F.R. § 76.57(c) (“With respect to digital signals of a … station carried in fulfillment of the must-carry obligations, a cable operator shall carry the information necessary to identify and tune to the broadcast television signal”). 
Acting on delegated authority, the FCC’s Media Bureau has interpreted the full Commission’s guidance on this subject to mean that, in digital broadcasting, a station’s statutory right to demand carriage on its “over-the-air” channel is limited to demanding carriage on its PSIP major channel. KSQA, LLC v. Cox Cable Commc’ns, Inc., 27 FCC Rcd 13185, 13186-87 ¶ 4 (Media Bur. 2012); see also Gray Television Licensee, LLC v. Zito Media, LP, 28 FCC Rcd 10780, 10781 n.10 
(Media Bur. 2013); Mauna Kea Broad. Co. v. Time Warner Entm’t Co., 27 FCC 
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Rcd 13188, 13198 ¶ 17 (Media Bur. 2012). The Bureau has expressly rejected the notion that a station has the option of electing mandatory carriage on either the cable channel corresponding to its radio frequency channel or the cable channel corresponding to its PSIP major channel. See KSQA, 27 FCC Rcd at 13186-87 ¶ 4. 

B. PMCM’s Dispute With Meredith Over Channel Positioning 
In May 2013, PMCM applied to the FCC for a construction permit to build a New York City broadcast facility for WJLP, its television station in Middletown Township, New Jersey (in the New York media market). Meredith Corporation filed an informal objection opposing PMCM’s use of PSIP major channel 3 in the New York market. Meredith operates a television station on major channel 3 in Hartford, Connecticut, and the service contour of its Hartford station overlaps with that of PMCM’s New Jersey station. See PSIP Declaratory Ruling, 30 FCC Rcd at 6082-83 ¶ 12. Meredith’s station has identified itself to viewers as “Channel 3” for more than half a century. See id. at 6084-85 ¶ 15. Concerned that PMCM’s use of major channel 3 could cause consumer confusion and dilute the established brand of Meredith’s station, Meredith argued that PMCM’s station should be required to use major channel 33 instead. See id. at 6083 ¶ 12, 6086 ¶ 20. 
In April 2014, the Media Bureau granted PMCM’s construction permit application without resolving the question of PMCM’s major channel assignment. The Bureau explained that a station’s virtual channel designation is typically made 
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in a separate proceeding. Meredith petitioned for reconsideration and requested a declaratory ruling that PMCM’s station be assigned virtual channel 33. See PSIP Declaratory Ruling, 30 FCC Rcd at 6083 ¶ 12. 
PMCM subsequently submitted to the FCC an “Alternative PSIP Proposal” under which major channel 3 would be partitioned, allowing Meredith’s station to use PSIP channels 3.1 through 3.9 and PMCM’s station to use PSIP channels 3.10 and above. On September 12, 2014, the Media Bureau issued a public notice opening a docketed proceeding to receive public comment on Meredith’s request for declaratory ruling and PMCM’s alternative PSIP proposal. Public Notice, 29 FCC Rcd at 10556-58. 

C. PMCM’s Must-Carry Election 
On June 6, 2014, PMCM notified cable operators in the New York media market that its television station would commence operation in that market in August 2014, and that it was electing mandatory carriage on cable channel 3. See PSIP Declaratory Ruling, 30 FCC Rcd at 6083 ¶ 13. Under Section 76.64(f)(4) of the FCC’s rules, 47 C.F.R. § 76.64(f)(4), PMCM’s must-carry election was scheduled to take effect 90 days later, on September 4, 2014. See Tara M. Corvo, Esq., 29 FCC Rcd 9102, 9103 (Media Bur. 2014) (“Cable Deferral Order”). 
At the cable operators’ request, the Media Bureau in July 2014 waived 
Section 76.64(f)(4) to allow the cable operators to defer implementing PMCM’s 
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must-carry and channel position election until 90 days from the date of a final decision on the virtual channel designation for PMCM’s station. Cable Deferral Order, 29 FCC Rcd at 9105. The Bureau reasoned that it made little sense to require cable operators to position PMCM’s station on channel 3—thereby displacing stations that already occupied that channel—until the Bureau made a final decision regarding PMCM’s virtual channel assignment. Id. at 9104-05. PMCM filed an application for Commission review of the Cable Deferral Order. See Exhibit 1 (attached). 
In the fall of 2014, after PMCM commenced broadcasting under “program test” authority, the Media Bureau ordered PMCM to use PSIP major channel 33 on an interim basis until the Bureau resolved PMCM’s dispute with Meredith over the use of major channel 3. See Donald J. Evans. Esq., 29 FCC Rcd 12733 (Media Bur. 2014); PSIP Declaratory Ruling, 30 FCC Rcd at 6084 ¶ 14. 
On June 5, 2015, the Media Bureau issued an order granting Meredith’s request for declaratory ruling, denying PMCM’s alternative PSIP proposal, and ordering PMCM to operate WJLP using virtual channel 33. PSIP Declaratory Ruling, 30 FCC Rcd at 6078 ¶ 2. That same day, in a letter sent to PMCM and the New York cable operators, the Bureau made clear that the PSIP Declaratory Ruling terminated the deferral period established by the Cable Deferral Order, and that the cable operators now had 90 days (i.e., until September 3, 2015) to respond 
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to PMCM’s original must-carry request for carriage on cable channel 3. See Request to Defer Mandatory Carriage of KVNV(TV), Middletown Township, New Jersey, 30 FCC Rcd 6116, 6117 (Media Bur. 2015) (June 2015 Letter). Under the terms of the letter, PMCM had the option of making a new must-carry and channel position election “to pursue carriage for WJLP on cable channel 33,” the virtual channel that the Bureau had assigned to the station. Id. 
In July 2015, PMCM filed applications for Commission review of the PSIP Declaratory Ruling and the June 2015 Letter. See Exhibits 2 and 3 (attached). Those applications remain pending. 

D. PMCM’s Must-Carry Complaints 
After receiving the June 2015 Letter, PMCM opted to continue pursuing carriage for WJLP on cable channel 3. In the fall of 2015, three cable operators— RCN Telecom Services, LLC, Service Electric Cable TV of New Jersey Inc., and Time Warner Cable Inc.—declined PMCM’s request for carriage on channel 3. On January 19, 2016, PMCM filed must-carry complaints against these cable operators, asking the FCC to order carriage of WJLP on channel 3.  
On May 17, 2016, less than 120 days after PMCM filed its must-carry complaints, the Media Bureau denied them. See PMCM TV, LLC v. RCN Telecom Services, LLC, 31 FCC Rcd 5224 (Media Bur. 2016); PMCM TV, LLC v. Service 
Electric Cable TV of New Jersey Inc., 31 FCC Rcd 5230 (Media Bur. 2016); 
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PMCM TV, LLC v. Time Warner Cable Inc., 31 FCC Rcd 5236 (Media Bur. 2016).2 
The Bureau rejected PMCM’s argument that WJLP was entitled to carriage on cable channel 3 because the station broadcasts over radio frequency channel 3. The Bureau noted that in the 2008 Declaratory Order, “the Commission explained that ‘Section 76.57(c) [of the FCC’s rules] should be read as clarifying the manner in which cable operators are to determine the channel number on which a local commercial … station is broadcast over the air when implementing such a station’s [must-carry] election.’” PMCM v. RCN, 31 FCC Rcd at 5227 ¶ 6 (quoting 2008 Declaratory Order, 23 FCC Rcd at 14259 ¶ 16). “Thus,” the Bureau concluded, “the Commission made clear that after the digital transition, a must-carry station’s carriage rights attach to its PSIP major channel number rather than its [radio frequency] channel number.” Id.; see also PMCM v. Service Electric, 31 FCC Rcd at 5233 ¶ 6; PMCM v. Time Warner, 31 FCC Rcd at 5240 ¶ 8. 
In light of the 2008 Declaratory Order, the Bureau determined that WJLP was “not entitled to be carried on channel 3” of a cable system unless PMCM and the cable operator reached “an agreement for carriage on that channel.” PMCM v. RCN, 31 FCC Rcd at 5228 ¶ 7. Absent such an agreement, the Bureau found that “PMCM’s channel positioning rights for WJLP” under 47 U.S.C. § 534 “attach 
2 These three orders can be found at Addendum C of PMCM’s mandamus petition. We will refer to these orders collectively as the Cable Carriage Orders. 
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only to its major channel number as carried in its PSIP, namely channel 33.” Id.; see also PMCM v. Service Electric, 31 FCC Rcd at 5234-35 ¶ 7; PMCM v. Time Warner, 31 FCC Rcd at 5241 ¶ 9. 
On June 10, 2016, PMCM filed a consolidated application for review of the Cable Carriage Orders. See Exhibit 4 (attached). Service Electric and Time Warner filed oppositions on June 27, 2016. PMCM filed a consolidated reply on July 6, 2016. See Exhibit 5 (attached). The Commission has not yet acted on PMCM’s application for review of the Cable Carriage Orders. 
ARGUMENT 
THE PETITION SHOULD BE DENIED 

Mandamus is a “drastic” remedy; “it is available only in extraordinary situations” and “is hardly ever granted.” Cheney, 406 F.3d at 729 (internal quotation marks omitted). To obtain such extraordinary relief, PMCM must establish that its right to a writ of mandamus is “clear and indisputable.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (internal quotation marks omitted). In particular, it must show that mandamus is necessary “to compel the [FCC’s] performance of a clear nondiscretionary duty.” Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (internal quotation marks omitted). PMCM has not come close to satisfying these requirements. 
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PMCM contends that its station has a clear and indisputable right to carriage on channel 3 under Section 1452(g) of the Spectrum Act, 47 U.S.C. § 1452(g), and Section 614(b)(6) of the Communications Act, 47 U.S.C. § 534(b)(6). Pet. 12-17. To the contrary, as we explain in Sections I and II below, neither of those statutes unequivocally entitles PMCM’s station to carriage on cable channel 3. Indeed, this Court has rejected similar claims made by PMCM in previous mandamus petitions. See February 2015 Mandamus Denial Order; September 2015 Mandamus Denial Order. 
Furthermore, PMCM is not entitled to mandamus because it has failed to show that “no adequate alternative remedy exists.” In re Al-Nashiri, 791 F.3d 71, 78 (D.C. Cir. 2015) (internal quotation marks omitted). PMCM has applied for FCC review of the Media Bureau orders to which it objects. If the Commission denies PMCM’s applications for review, PMCM will have the opportunity to petition for judicial review of the agency’s decisions and thereby vindicate whatever rights it may have under the statutes it invokes. PMCM cannot use its mandamus petition “as a substitute for the regular appeals process.” Id. (quoting Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380-81 (2004)). 
PMCM also complains that the FCC has failed to “act expeditiously” on four applications for review of actions taken by the Media Bureau. Pet. 23. But as we explain in Section III below, this case does not involve the sort of agency delay 
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that is “so egregious as to warrant mandamus.” American Hosp. Ass’n v. Burwell, 812 F.3d 183, 189-90 (D.C. Cir. 2016) (quoting Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984) (“TRAC”)). PMCM’s application for review of the Cable Carriage Orders has been pending for less than a year. Its applications for review of the PSIP Declaratory Ruling and the June 2015 Letter have been pending for less than two years.  And its application for review of the Cable Deferral Order is moot; that order is no longer in effect. See September 2015 Mandamus Denial Order. 
PMCM claims that expeditious action is needed because its rights under the Spectrum Act are “available for only a limited time.” Pet. 21. The statutory time limits are irrelevant in this case, however, because the Bureau’s actions do not implicate the rights that are limited in time.  

I. PMCM Has No Clear And Indisputable Right To Relief Under Section 1452(g) Of The Spectrum Act. 
In support of its claim that WJLP is entitled to carriage on cable channel 3, PMCM first invokes Section 1452(g) of the Spectrum Act, 47 U.S.C. § 1452(g).3 
3 Section 1452(g) was enacted as part of the Spectrum Act (i.e., Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156). The Spectrum Act “responds to the rapidly growing demand for mobile broadband services” by authorizing the FCC “to reallocate a portion of the licensed airwaves from television broadcasters to mobile broadband providers” through a multi-stage incentive auction. Mako Commc’ns, LLC v. FCC, 835 F.3d 146, 147 
(D.C. Cir. 2016); see also Nat’l Ass’n of Broadcasters v. FCC, 789 F.3d 165, 168­
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Pet. 12-14. Section 1452(g) provides that, with certain specified exceptions, the FCC may not “involuntarily modify the spectrum usage rights of a broadcast television licensee or reassign such a licensee to another television channel,” 47 
U.S.C. § 1452(g)(1)(A), from February 22, 2012 until (1) the completion of the incentive auction and spectrum repacking process authorized by the statute or (2) September 30, 2022 (whichever comes first). Id. § 1452(g)(2)(A)-(C). PMCM argues that the Media Bureau violated this statute—and involuntarily changed both WJLP’s channel and its spectrum usage rights—by assigning virtual channel 33 to the station. Pet. 13-14. That claim is baseless. 
As its name denotes, the Spectrum Act is concerned with the use of spectrum. “Congress, in the Spectrum Act, authorized the FCC to hold an incentive auction to encourage broadcasters to relinquish their spectrum rights [to mobile broadband providers] in exchange for incentive payments.” NAB, 789 F.3d at 169­
70. Section 1452(g)(1)(A) pertains to the “spectrum usage rights” that broadcasters may choose to relinquish in the incentive auction. Those rights are associated with a television station’s radio frequency channel, not its virtual channel. Section 1452(g) “does not concern virtual channel assignments, which have no bearing on a station’s spectrum usage rights on its [radio frequency] channel.” PSIP Declaratory Ruling, 30 FCC Rcd at 6100 ¶ 49. 
69 (D.C. Cir. 2015) (“NAB”). This incentive auction began in the first half of 2016, and it is still in progress. 
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The FCC has expressly committed to preserve PMCM’s spectrum usage rights by exercising its discretion under 47 U.S.C. § 1452(b)(2) “to protect PMCM’s coverage area and population served based on its [radio frequency] channel 3 facilities as reflected in its authorized construction permit.” PSIP Declaratory Ruling, 30 FCC Rcd at 6101 ¶ 49 (citing Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, 29 FCC Rcd 6567, 6666 ¶¶ 221-22 (2014)). The Media Bureau orders to which PMCM objects do not deviate from that commitment.  None of those orders has altered either the coverage area or the population served by WJLP, which continues to broadcast on radio frequency channel 3. 
In short, the Bureau’s assignment of virtual channel 33 to WJLP did not change either the broadcast spectrum allocated for the station’s broadcasts—i.e., radio frequency channel 3—or the station’s right to use that spectrum. Therefore, the Bureau did not violate Section 1452(g). 
In its mandamus petition, PMCM argues that the Bureau’s assignment of virtual channel 33 to WJLP “must … be viewed as a change in the station’s ‘spectrum usage rights’” under Section 1452(g) “[b]ecause the obligation to encode the new virtual channel into the broadcast transmission stream is part of the ‘TV transmission standards’ set forth in the Commission’s rules.” Pet. 14 (citing 47 C.F.R. § 73.622(d)). This argument—which PMCM has never presented to the 
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Commission—lacks foundation. It is neither clear nor indisputable that the “spectrum usage rights” protected by Section 1452(g) include a station’s right to encode a particular virtual channel on its broadcasts. PMCM has previously taken the position that the undefined and ambiguous phrase “spectrum usage rights” in Section 1452(g) relates to a station’s “use of particular frequencies.” Consolidated Application for Review (Exhibit 4) at 11; see also Consolidated Reply (Exhibit 5) at 6 (the “changes in spectrum usage rights” that Section 1452(g) forbids are “presumably changes in the frequency and the like”). That interpretation is consistent with the statute’s language and purpose. By contrast, nothing in the statute supports PMCM’s new assertion that “spectrum usage rights” encompass requirements in the television transmission standards, which are merely technical service rules. The encoding of a virtual channel on WJLP’s digital broadcasts does not in any way alter the station’s right to broadcast on radio frequency channel 3. 
PMCM’s attempt to rely on Section 1452(g) to obtain its desired channel position is nothing new. In its mandamus petition in No. 14-1238, PMCM argued (among other things) that the Media Bureau, by ordering PMCM to use virtual channel 33 on an interim basis, had changed its channel from 3 to 33, in violation of Section 1452(g). On the basis of this alleged violation, PMCM claimed that it had a clear and indisputable right to mandamus relief. See Mandamus Petition, No. 
14-1238, at 3-4, 6, 18; Consolidated Reply, No. 14-1238, at 8-10. This Court 
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disagreed. It held that PMCM had not “demonstrated that it has a clear and indisputable right” to operate on virtual channel 3 under 47 U.S.C. § 1452(g). February 2015 Mandamus Denial Order (internal quotation marks omitted).  
PMCM maintains that this case is distinguishable from No. 14-1238 because the Bureau in that case had “only temporarily changed the station’s channel.” Pet. 
3. But under PMCM’s reading of Section 1452(g), that distinction makes no difference. In PMCM’s view, any change in WJLP’s virtual channel—no matter how temporary—would violate the prohibition on channel changes under Section 1452(g). See Mandamus Petition, No. 14-1238, at 3-4, 6, 18; Consolidated Reply, No. 14-1238, at 8-10. This Court rightly rejected that argument in the February 2015 Mandamus Denial Order. It should do the same here. 

II. PMCM Has No Clear And Indisputable Right To Relief Under Section 614(b)(6) Of The Communications Act. 
As an alternative ground for relief, PMCM asserts that the Media Bureau’s refusal to order carriage of WJLP on cable channel 3 violates Section 614(b)(6) of the Communications Act, 47 U.S.C. § 534(b)(6). Pet. 15-17. Under Section 614(b)(6), a station asserting must-carry rights “may insist on carriage on the cable channel corresponding to the channel on which the station is ‘broadcast over the air.’” Pet. 15 (quoting 47 U.S.C. § 534(b)(6)). PMCM contends that when the statute refers to the channel on which a station is “broadcast over the air,” it must 
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mean the station’s radio frequency channel (in WJLP’s case, channel 3). Pet. 16. Not so. 
Section 614(b)(6) does not define the phrase “broadcast over the air.” And the advent of digital television has raised questions as to what “broadcast over the air” means in a post-analog environment. “In digital broadcasting, a broadcast station’s channel number is no longer identified by reference to its over-the-air radio frequency.” 2008 Declaratory Order, 23 FCC Rcd at 14259 ¶ 15. Instead, broadcast signals are “identified and tuned to through the PSIP information process rather than by identification with the specific frequency on which the station is broadcasting.” Digital Television Order, 16 FCC Rcd at 2635 ¶ 83. In light of this development, it is unclear whether a station’s “over the air” channel under Section 614(b)(6) is the station’s radio frequency channel or its PSIP major channel (i.e., the channel to which viewers tune their televisions to receive the station). Recognizing this ambiguity, broadcasters on the eve of the digital television transition proposed several different interpretations of the statute’s channel positioning provision. See id. at 2634-35 ¶ 82. 
Anticipating that the transition to digital television would lead to “modifications of the standards for television broadcast signals,” Congress expressly entrusted the FCC to “establish any changes in the signal carriage 
requirements of cable television systems necessary to ensure cable carriage of [the] 
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broadcast signals of local commercial television stations which have been changed to conform with such modified standards.” 47 U.S.C. § 534(b)(4)(B). Exercising that authority, the FCC has clarified that, for purposes of asserting must-carry rights in the digital age, a station that elects carriage on its over-the-air channel “may demand carriage on its major channel number as broadcast in the station’s PSIP.” 2008 Declaratory Order, 23 FCC Rcd at 14259 ¶ 16; see id. at 14254-55 ¶¶ 1, 4. The Media Bureau has construed the Commission’s guidance on this issue to mean that, “for purposes of channel positioning” after the digital transition, “a station’s over-the-air broadcast channel number is no longer identified by reference to its over-the-air radio frequency, but instead to its Major Channel Number as carried in its PSIP.” KSQA, 27 FCC Rcd at 13187 ¶ 4. 
Consistent with its prior interpretation of the 2008 Declaratory Order, the Bureau determined in the Cable Carriage Orders that WJLP’s “over the air” channel under Section 614(b)(6) is its PSIP major channel (channel 33), not its radio frequency channel (channel 3). See PMCM v. RCN, 31 FCC Rcd at 5226-28 ¶¶ 5-7; PMCM v. Service Electric, 31 FCC Rcd at 5232-35 ¶¶ 5-7; PMCM v. Time Warner, 31 FCC Rcd at 5239-41 ¶¶ 7-9. 
While it may disagree with the Bureau’s must-carry rulings, PMCM is not entitled to a writ of mandamus unless it can show that Section 614(b)(6) gives 
WJLP “a clear and indisputable right” to carriage on channel 3. See Cheney, 406 
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F.3d at 729 (internal quotation marks omitted). PMCM has utterly failed to make such a showing. In light of the transition to digital television, the phrase “broadcast over the air” in Section 614(b)(6) is ambiguous. This ambiguous statute does not indisputably require the FCC to designate a station’s radio frequency channel as its “over the air” channel. 
This is not the first time that PMCM has claimed a clear right to relief under the must-carry statute. In its mandamus petition in No. 15-1058, PMCM contended that WJLP had “a clear right” to carriage on cable channel 3 under Section 614(b)(6) because “WJLP broadcasts over the air on [radio frequency] Channel 3.” Mandamus Petition, No. 15-1058, at 12. The Court rejected that claim. It held that PMCM had “not demonstrated a clear and indisputable right” to “be carried on Channel 3 on all cable systems as to which [PMCM] has elected must-carry status.” September 2015 Mandamus Denial Order (internal quotation marks omitted). The Court should reaffirm that conclusion here.      

III. There Has Been No Unreasonable Agency Delay. 
PMCM also contends that mandamus is warranted because the FCC has failed to “act expeditiously” on four applications for review. Pet. 23. But PMCM has not demonstrated that the agency’s delay in this case was unreasonable, let alone “so egregious as to warrant mandamus.” American Hosp. Ass’n, 812 F.3d at 189-90 (quoting TRAC, 750 F.2d at 79). 
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PMCM argues that there is a pressing need for prompt FCC action because the protections afforded by 47 U.S.C. § 1452(g) will soon expire. Pet. 21; see also Pet. 23 (asserting that it is unlikely “that the full Commission will act before PMCM’s statutory right to retain its original channel expires”). That argument mistakenly assumes that the Media Bureau has violated Section 1452(g) by refusing to order carriage of WJLP on channel 3, and that the Commission must vindicate PMCM’s rights by reversing the Bureau’s rulings before the statute’s protections lapse. To the contrary, as we explained in Part I above, the Bureau orders challenged by PMCM do not even implicate the rights safeguarded by Section 1452(g). The Bureau has not altered either the radio frequency channel on which WJLP broadcasts or WJLP’s right to use the spectrum associated with that channel. Because the Bureau has done nothing to infringe on PMCM’s rights under Section 1452(g), that statute provides no basis for granting the extraordinary relief sought by PMCM.4 
Moreover, PMCM cannot plausibly claim that the FCC has unreasonably delayed action on its applications for review. PMCM asserts that those applications “have long been pending.” Pet. 25. But its application for review of the Cable 
4 In a footnote, PMCM argues that if the FCC does not resolve the dispute over WJLP’s channel position before October 2017, the station’s “ability to make the necessary triennial must-carry election” at that time will be “impeded.” Pet. 21 
n.19 (citing 47 U.S.C. § 325(b)(3)(B)). This alleged “impediment” cannot justify the Court’s intervention in the Commission’s proceedings at this time, given that WJLP’s next must-carry election is eight months away. 
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Carriage Orders was not filed until June 2016, see Exhibit 4, and did not become ripe for decision until PMCM filed its reply in support of the application in July 2016—less than 8 months ago. See Exhibit 5. PMCM’s applications for review of the PSIP Declaratory Ruling and the June 2015 Letter were filed in July 2015— less than 20 months ago. See Exhibits 2 and 3. These limited periods of agency deliberation do not remotely resemble the sort of “unreasonable delay” that would warrant the extraordinary remedy of mandamus. This Court has denied mandamus petitions in cases involving much longer periods of agency inaction. See, e.g., Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d 1525, 1534 (D.C. Cir. 1990) (delay of “more than nine years” was not unreasonable); In re Monroe Commc’ns Corp., 840 F.2d 942, 945-47 (D.C. Cir. 1988) (delay of several years fell “so short of egregious” that it did not warrant mandamus); TRAC, 750 F.2d at 80-81 (delays of two and five years did not warrant mandamus). 
The longest pending application in this case—PMCM’s application for review of the Cable Deferral Order—was filed in August 2014. See Exhibit 1. But after the issuance of the PSIP Declaratory Ruling in June 2015, the Cable Deferral Order ceased to be in effect. Consequently, as this Court noted in September 2015, “action on the application for review” of the Cable Deferral Order “is no longer needed.” September 2015 Mandamus Denial Order. 
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23 
PMCM also argues that mandamus is warranted because the Commission “ignored or evaded” the 120-day statutory deadline for resolving cable carriage complaints. Pet. 23; see 47 U.S.C. § 614(d)(3). That claim cannot withstand scrutiny. The Media Bureau complied with the statutory deadline by ruling on PMCM’s complaints within 120 days after they were filed. The complaints were filed on January 19, 2016; the Bureau denied them on May 17, 2016.5 
In a footnote, PMCM concedes that the Bureau acted on the complaints within 120 days. Pet. 23 n.20. It nonetheless contends that the Bureau “unlawfully abrogated WJLP’s cable carriage rights for almost a year before the formal complaint process could begin.” Id. PMCM already asked the Court in two earlier mandamus petitions to rescind the Bureau’s actions predating the formal complaint process, and the Court correctly held that mandamus was not warranted. See February 2015 Mandamus Denial Order; September 2015 Mandamus Denial Order. PMCM has given the Court no good reason to revisit that conclusion.6 
5 Contrary to PMCM’s assertion (Pet. 23 n.20), it was entirely proper for the Media Bureau (rather than the full Commission) to address the complaints. Sections 0.61 and 0.283 of the Commission’s rules delegate authority to the Media Bureau to handle must-carry complaints. See 47 C.F.R. §§ 0.61, 0.283. PMCM’s complaints did not present any “novel questions of law, fact or policy” that needed to be referred to the full Commission for disposition. See 47 C.F.R. § 0.283(c); PMCM 
v. RCN, 31 FCC Rcd at 5226 ¶ 4; PMCM v. Service Electric, 31 FCC Rcd at 5232 ¶ 4; PMCM v. Time Warner, 31 FCC Rcd at 5238-39 ¶ 6. 
6 Without citation to any evidence, PMCM asserts that it is being harmed in various ways by the Media Bureau’s orders. Pet. 17-21. Even assuming that these 
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CONCLUSION 
For the foregoing reasons, the petition for a writ of mandamus should be 
denied. 
       Respectfully submitted, 
       Brendan T. Carr       Acting General Counsel
       David M. Gossett       Deputy General Counsel
       Richard K. Welch       Deputy Associate General Counsel 
       /s/James M. Carr
       James M. Carr Counsel 
       Federal Communications Commission        Washington, D.C. 20554 
(202) 418-1740 
February 13, 2017 

unsubstantiated harms are real, they have no bearing on whether PMCM is entitled to a writ of mandamus. Whatever harms it may now be experiencing, PMCM has failed to show that it has a clear and indisputable right to mandamus relief.   
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 


Inre ) ) 
PMCM TV, LLC, ) No. 16-1380 
) 
Petitioner ) 
_________________________________________) 


CERTIFICATE OF COMPLIANCE  
WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS,  
AND TYPE-STYLE REQUIREMENTS 

1. 
This document complies with the word limit requirements of Fed. R. App. P. 27(d)(2)(a) because the document contains 5,664 words, as determined by the word-count function of Microsoft Word, excluding the parts of the motion exempted by Fed. R. App. P. 32(f); and 

2. 
This document complies with the typeface requirements of Fed. R. App. P. 32(a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Times New Roman font.  


/s/James M. Carr
       James M. Carr Counsel 
       Federal Communications Commission        Washington, D.C. 20554 
(202) 418-1740 

February 13, 2017 

Exhibit 1 


Exhibit 2 


Exhibit 3 


Exhibit 4 


Exhibit 5 

IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Inre ) ) PMCM TV, LLC, ) No. 16-1380 
) 
Petitioner ) 
_________________________________________) 

CERTIFICATE OF SERVICE 
I, James M. Carr, hereby certify that on February 13, 2017, I electronically filed the foregoing Opposition of the Federal Communications Commission to Petition for Issuance of 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/ James M. Carr