IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
       ) 
In re PMCM TV, LLC,    ) No. 17-1190 
    Petitioner.  ) 
       ) 
 
OPPOSITION OF THE FEDERAL COMMUNICATIONS COMMISSION 
TO PETITION FOR ISSUANCE OF WRIT OF MANDAMUS 
 
 This case concerns pending proceedings before the Federal Communications 
Commission involving a dispute over the channel position of WJLP—a New 
Jersey television station owned by PMCM TV, LLC (“PMCM”)—on cable 
systems and on televisions receiving over-the-air signals in the New York City 
Designated Market Area (“DMA”).1 For the fourth time, PMCM has petitioned for 
a writ of mandamus pertaining to those proceedings. On three previous occasions, 
this Court declined to grant the extraordinary relief requested by PMCM.2 The 
Court should do likewise here. 
                                                            
1 A DMA is a market designation developed by Nielsen Media Research using 
“audience survey information from cable and noncable households to determine 
the assignment of counties to local television markets based on local stations’ 
respective viewer shares.” Costa de Oro Television, Inc. v. FCC, 294 F.3d 123, 
125 (D.C. Cir. 2002). 
 
2 See In re PMCM TV, LLC, No. 14-1238 (D.C. Cir. Feb. 27, 2015) (per curiam) 
(“February 2015 Mandamus Denial Order”); In re PMCM TV, LLC, No. 15-1058 
(D.C. Cir. Sept. 23, 2015) (per curiam) (“September 2015 Mandamus Denial 
Order”); In re PMCM TV, LLC, No. 16-1380 (D.C. Cir. Apr. 4, 2017) (per curiam) 
(“April 2017 Mandamus Denial Order”). 
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 PMCM contends that it is entitled to mandamus because the FCC 
purportedly has unreasonably delayed action on PMCM’s pending applications for 
review of certain orders issued by the Commission’s Media Bureau. Pet. 19-30. 
But this proceeding does not involve the sort of agency delay that is “so egregious 
as to warrant mandamus.” Am. 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”)). Of the four applications for review filed by PMCM, 
two have become moot as a result of agency action; the third has been pending for 
about two years; and the fourth has been pending for about one year. Moreover, 
draft orders addressing each of PMCM’s pending applications have been circulated 
by the FCC’s Chairman to the other Commissioners, and those orders are now ripe 
for a vote. Consequently, mandamus is unwarranted. 
 PMCM also asks the Court to direct the Commission, “pending final 
proceedings in this matter, to immediately restore WJLP to channel 3 for cable 
positioning, virtual channel, and all other purposes.” Pet. 29. As we explain below, 
this request for relief rests on a fundamental misreading of 47 U.S.C. § 1452(g). 
That statute does not compel the sort of extraordinary remedy sought by PMCM. 
Indeed, this Court rejected a similar request by PMCM more than two years ago. 
See February 2015 Mandamus Denial Order. 
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 The “drastic” remedy of mandamus “is available only in extraordinary 
situations.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc) (internal 
quotation marks omitted). That drastic remedy is unwarranted in this case. 
PMCM’s petition for a writ of mandamus should be denied.   
BACKGROUND 
 This case involves a dispute regarding which channel position PMCM’s 
newly launched New Jersey television station will occupy on cable systems in the 
New York DMA and a related dispute regarding PMCM’s so-called “virtual” 
channel number (the number viewers use to receive the broadcast signal over the 
air, i.e., on a television set that does not receive cable or satellite service). PMCM 
maintains that its station (WJLP) is entitled to be carried on cable channel 3 and to 
use “virtual” channel 3 for over-the-air broadcasting. As we explain below, the 
FCC’s Media Bureau has issued orders finding that WJLP is entitled to cable 
carriage on channel 33 and to use virtual channel 33 for over-the-air service. 
PMCM has filed applications for Commission review of the Bureau’s orders.  
Notably, the pendency of these applications has not prevented PMCM’s 
station from obtaining cable carriage or broadcasting its signal over the air. The 
record in these proceedings indicates that since September 2015, WJLP has been 
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carried on channel 33 on the major cable systems serving the New York DMA.3 
Given the widespread cable carriage of WJLP over the last two years, there is no 
basis for PMCM’s unsubstantiated assertion that “millions of people in the New 
York market have been denied access to WJLP’s signal for years” while PMCM’s 
applications for review have been pending. Pet. 25.4  
                                                            
3 See Letter from Donald J. Evans, Counsel for PMCM, to Marlene H. Dortch, 
FCC, at 2 (filed Sept. 30, 2015) (stating that Cablevision, Comcast, and Time 
Warner cable systems in the New York DMA were carrying WJLP); Letter from 
Tara M. Corvo, Counsel for Cablevision, to William T. Lake, FCC, at 1 (filed Sept. 
24, 2015) (all Cablevision cable systems in the New York DMA on which WJLP 
had must carry rights began carrying WJLP on Sept. 3, 2015); Letter from 
Frederick W. Giroux, Counsel for Comcast, to William T. Lake, FCC, at 1 (filed 
Sept. 30, 2015) (Comcast cable systems serving New Jersey communities in the 
New York DMA began carrying WJLP on Sept. 3, 2015); Letter from Seth A. 
Davidson, Counsel for Time Warner Cable, to William T. Lake, FCC, at 1 (filed 
Sept. 30, 2015) (Time Warner cable systems in the New York DMA began 
carrying WJLP on Aug. 25, 2015). 
 
4 PMCM has been broadcasting WJLP’s signal over the air since September 2014. 
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, 6084 ¶ 14 (Med. Bur. 2015) (“PSIP 
Declaratory Ruling”). Insofar as PMCM asserts that WJLP’s “use of channel 33 
caused multiple technical problems” (Pet. 28), it appears to be referring to the fact 
that after the transition to digital television in 2009, certain television receivers do 
not display the correct over-the-air station signal when some stations’ channel 
numbers are entered. See Pet. 28 n.11. This issue does not occur when consumers 
receive television programming via cable or satellite television services. See 
http://wjlp3.com (listing cable and satellite services that carry WJLP’s program-
ming) (visited Aug. 14, 2017). Furthermore, there is a simple fix to the problem 
cited by PMCM. Over-the-air viewers of WJLP (i.e., viewers who do not receive 
WJLP via cable or satellite services) “can avoid the prospect of mistuning by 
tuning in the channel as 33.1 rather than scrolling to 33.” Letter from Joshua N. 
Pila, Counsel for Meredith, et al., to Marlene H. Dortch, FCC, MB Docket No. 14-
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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 
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). 
A new commercial television station wishing to assert must-carry rights 
must notify cable operators in its market of that election no later than “30 days 
after commencing [to] broadcast.” 47 C.F.R. § 76.64(f)(4); see id. § 76.64(h). 
                                                            
150, at 2 (filed Feb. 29, 2016); see also Letter from Joshua N. Pila, Counsel for 
Meredith, and John W. Bagwell, Counsel for CBS, to Marlene Dortch, FCC, MB 
Docket No. 14-150, at 2 (filed Dec. 1, 2015) (testing verified that when the 
equipment in question is tuned to channel 33.1, it receives the signal for WJLP in 
the New York DMA). WJLP’s website notifies over-the-air viewers that the station 
is located at channel 33.1. See http://wjlp3.com (visited Aug. 14, 2017).   
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Ordinarily, a must-carry election “take[s] effect 90 days after it is made.” Id. 
§ 76.64(f)(4). Thus, in the usual case, a cable operator that receives a must-carry 
notice from a new station must begin carrying the station as requested within 90 
days or risk the prospect that the station will seek remedial action from the FCC as 
provided under Section 614(d) of the Act, 47 U.S.C. § 534(d), and Section 76.61 of 
the FCC’s rules, 47 C.F.R. § 76.61. See Implementation of the Cable Television 
Consumer Protection and Competition Act of 1992, 8 FCC Rcd 2965, 2993-96 
¶¶ 115-128 (1993). 
“Whenever a local commercial television station believes that a cable 
operator has failed to meet its [cable carriage] obligations,” the “station shall notify 
the operator, in writing, of the alleged failure and identify its reasons for believing 
that the cable operator is obligated to carry the signal of such station or has 
otherwise failed to comply with the channel positioning … or other requirements 
of [Section 614].” 47 U.S.C. § 534(d)(1). “The cable operator” has “30 days” from 
“such written notification” to “respond in writing … and either commence to carry 
the signal of [the requesting] station in accordance with the terms requested or state 
its reason for believing that it is not obligated” to do so. Id. A station that is 
formally “denied” its requested cable “carriage or channel positioning … may 
obtain review of such denial by filing a complaint with the [FCC].” Id. 
B. Channel Positioning In The Digital Television Era 
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 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 two-part numerical code that all full power 
television stations transmit within their digital broadcasts. That code is known as a 
“Program System and Information Protocol” (or “PSIP”) channel. See PSIP 
Declaratory Ruling, 30 FCC Rcd at 6079-80 ¶¶ 4-6.  
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.5 The second number in 
the PSIP channel—the “minor” channel number—identifies one program service 
                                                            
5 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 
(Med. Bur. 2014) (“Public Notice”). 
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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 
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] 
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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 
Rcd 13188, 13198 ¶ 17 (Media Bur. 2012). The Bureau has expressly rejected the 
notion that a station has the option of demanding 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. 
C. Reallocation Of PMCM’s Station From Nevada To New Jersey And 
PMCM’s Dispute With Meredith Over Channel Positioning 
 
 In 2008, PMCM became the licensee of station KVNV(TV), radio frequency 
channel 3, in Ely, Nevada. See PSIP Declaratory Ruling, 30 FCC Rcd at 6081 ¶ 9. 
Shortly thereafter, as part of the 2009 transition to digital television, New Jersey’s 
only commercial very high frequency (“VHF”) television station vacated radio 
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frequency channel 9 in exchange for ultra-high frequency (“UHF”) spectrum. See 
Reallocation of Channel 2 from Jackson, Wyoming to Wilmington, Delaware, 26 
FCC Rcd 13696, 13699 ¶ 6 (2011), rev’d, PMCM TV, LLC v. FCC, 701 F.3d 380 
(D.C. Cir. 2012).6 “As a result, New Jersey … had no VHF stations.” PMCM TV, 
701 F.3d at 383.    
In light of that development, PMCM—invoking Section 331(a) of the 
Communications Act, 47 U.S.C. § 331(a)—sought to have the FCC reallocate VHF 
channel 3 from Ely, Nevada, to Middletown Township, New Jersey, which is in the 
New York DMA. The Commission initially concluded that the statute did not 
require that reallocation. See PMCM TV, 701 F.3d at 383. On review, this Court 
reversed. See id. at 385. Pursuant to the Court’s mandate, the FCC granted the 
reallocation of radio frequency channel 3 that PMCM had requested. Reallocation 
of Channel 3 from Ely, Nevada to Middletown Township, New Jersey, 28 FCC Rcd 
2825 (Media Bur. 2013). 
                                                            
6 “VHF” and “UHF” specify the radio frequency range on which a television 
station transmits its signal. See Newton’s Telecom Dictionary 1263 (28th ed. 2014) 
(“UHF” includes frequencies “ranging from about 300 MHz to about 3 GHz”); 
id.at 1297 (“VHF” includes “frequencies between about 30 MHz and 300 MHz”). 
In the analog era, VHF channels “enjoyed substantial technical advantages over 
other broadcasting methods.” PMCM TV, 701 F.3d at 381. But VHF spectrum “is 
poorly suited for digital broadcasting” in some instances; consequently, “when the 
United States transitioned from analog to digital television broadcasting,” the FCC 
“allowed several stations”—including the only VHF station in New Jersey—“to 
substitute other channels for their VHF allotments.” Id. at 382-83.   
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In May 2013, when PMCM applied to the FCC for a construction permit to 
build a New York City broadcast facility for its New Jersey station, Meredith 
Corporation, which operates a television station using major channel 3 in the 
Hartford-New Haven, Connecticut DMA, objected to PMCM’s use of PSIP major 
channel 3. The service contour of Meredith’s station overlaps with that of PMCM’s 
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 
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 
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and above. See Public Notice, 29 FCC Rcd at 10556-57. 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. Id. at 10556-58.      
D. PMCM’s Must-Carry Election 
 On June 6, 2014, PMCM notified cable operators in the New York DMA 
that its television station would commence operation in August 2014, and that it 
was electing mandatory carriage on 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 
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 virtual channel 3—thereby 
displacing stations that already occupied that channel—until the Bureau issued a 
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ruling regarding PMCM’s virtual channel assignment. Id. at 9104-05. PMCM filed 
an application for Commission review of the Cable Deferral Order. 
E. PMCM’s 2014 Mandamus Petition 
 In September 2014, PMCM completed construction of its New York facility 
and commenced broadcasting under “program test” authority. Shortly thereafter, 
several incumbent stations jointly complained to the FCC that PMCM’s station, 
now known as WJLP, was operating without authorization on PSIP channel 3.10. 
By letter dated October 23, 2014, the Media Bureau ordered WJLP 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). When PMCM ignored that order, the Bureau 
directed PMCM to comply or have its program test authority suspended. See PSIP 
Declaratory Ruling, 30 FCC Rcd at 6084 ¶ 14. 
 In response, PMCM filed an emergency petition for writ of mandamus (No. 
14-1238) asking this Court to direct the FCC to rescind the Bureau’s suspension of 
WJLP’s program test authority. Among other things, PMCM claimed that it had a 
clear right to mandamus relief under 47 U.S.C. § 1452(g).7 Section 1452(g) 
                                                            
7 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 
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prohibited the FCC, during the period in question, “from ‘involuntarily 
modify[ing] the spectrum usage rights of a broadcast television licensee or 
reassign[ing] such a licensee to another television channel.’” Mandamus Petition, 
No. 14-1238, at 3 (quoting 47 U.S.C. § 1452(g)(1)(A)). PMCM argued that the 
Bureau violated Section 1452(g) by reassigning WJLP’s major channel number 
from 3 to 33. See Mandamus Petition, No. 14-1238, at 3-4, 6, 18; Consolidated 
Reply, No. 14-1238, at 8-10. 
 The Court denied the mandamus petition, declaring that the Bureau could 
permissibly order PMCM to use channel 33 as “an interim measure intended to 
preserve the status quo ante in the relevant service areas” until the agency assigned 
a virtual channel to WJLP. February 2015 Mandamus Denial Order. The Court 
held that PMCM had not “demonstrated that it has a clear and indisputable right to 
relief” under the mandate in PMCM TV or “any other relevant source of law,” 
including 47 U.S.C. § 1452(g). Id. (internal quotation marks omitted). PMCM 
thereafter agreed to use major channel 33 on an interim basis until the Media 
Bureau designated WJLP’s virtual channel. 
F. PMCM’s 2015 Mandamus Petition 
                                                            
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-
69 (D.C. Cir. 2015) (“NAB”). This incentive auction commenced in the first half of 
2016. It concluded in April 2017. See Incentive Auction Closing and Channel 
Reassignment Public Notice, 32 FCC Rcd 2786 (2017) (“Auction Closing Notice”).   
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 Less than a month after the Court denied its petition in No. 14-1238, PMCM 
filed yet another mandamus petition (No. 15-1058). This time, it asked the Court to 
direct the FCC to “act[ ] immediately” on PMCM’s application for review of the 
Cable Deferral Order, which had been pending for less than seven months. 
Mandamus Petition, No. 15-1058, at 26. PMCM asserted that the dispute over 
WJLP’s virtual channel did not justify any delay in implementing PMCM’s must-
carry election. Id. at 13. It maintained that WJLP had “a clear right” to carriage on 
cable channel 3 under 47 U.S.C. § 534(b)(6) because “WJLP broadcasts over the 
air on Channel 3.” Id. at 12. PMCM therefore sought a writ of mandamus 
compelling the FCC to order carriage of WJLP on cable channel 3 “on all cable 
systems as to which PMCM … has elected must-carry status.” Id. at 26. 
 On June 5, 2015, while the mandamus petition in No. 15-1058 was still 
pending, 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 to 
PMCM’s original must-carry request for carriage on cable channel 3. See Request 
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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 Letter. Those applications remain pending. 
 On September 23, 2015, the Court dismissed the mandamus petition in No. 
15-1058 as moot to the extent PMCM sought “an immediate ruling” on its 
application for review of the Cable Deferral Order. September 2015 Mandamus 
Denial Order. The Court explained that “action on the application for review” was 
“no longer needed” in light of the PSIP Declaratory Ruling. Id. It also denied the 
mandamus petition to the extent PMCM sought to “compel[ ] the Commission to 
order that [WJLP] be carried on Channel 3 on all cable systems as to which 
[PMCM] has elected must-carry status.” Id. The Court held that PMCM had “not 
demonstrated a clear and indisputable right to such relief.” Id. (internal quotation 
marks omitted). 
G. PMCM’s Must-Carry Complaints 
 After receiving the June Letter, PMCM opted to continue pursuing carriage 
for WJLP on channel 3. In the fall of 2015, three cable operators—RCN Telecom 
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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.  
Ruling on PMCM’s must-carry complaints within 120 days of their filing (in 
accordance with 47 U.S.C. § 534(d)(3)), the Media Bureau denied the complaints 
on May 17, 2016. 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); PMCM TV, LLC v. Time 
Warner Cable Inc., 31 FCC Rcd 5236 (Media Bur. 2016). (We will refer to these 
three orders collectively as the Cable Carriage Orders.) 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 
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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 
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. Service Electric and Time Warner filed oppositions to 
PMCM’s application for review on June 27, 2016. PMCM filed a consolidated 
reply to these oppositions on July 6, 2016. The Commission has not yet acted on 
PMCM’s application for review of the Cable Carriage Orders. 
H. PMCM’s 2016 Mandamus Petition 
On October 31, 2016, PMCM filed a third mandamus petition pertaining to 
its channel dispute with Meredith. Once more, PMCM asserted that it had a 
statutory right to carriage of WJLP on cable channel 3 under 47 U.S.C. 
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§§ 534(b)(6) and 1452(g). Once more, the Court denied PMCM’s request for 
mandamus relief. In re PMCM TV, LLC, No. 16-1380 (D.C. Cir. Apr. 4, 2017) (per 
curiam) (“April 2017 Mandamus Denial Order”). Noting that PMCM had “filed 
applications for review with the Commission seeking the same relief” it requested 
in its mandamus petition, the Court ruled that PMCM had “failed to show that the 
statutory process providing for administrative and judicial review set forth in 47 
U.S.C. §§ 155(c)(4) and 402(a) is not an adequate remedy.” Id. The Court also 
rejected PMCM’s assertion that “the Commission has unreasonably delayed in 
acting on the applications for review.” Id. The Court stated that its denial of 
PMCM’s claim of unreasonable delay was “without prejudice to renewal in the 
event of additional significant delay.” Id. 
ARGUMENT 
THE PETITION SHOULD BE DENIED 
 The “drastic” remedy of mandamus “is available only in extraordinary 
situations” and “is hardly ever granted.” Cheney, 406 F.3d at 729 (internal 
quotation marks omitted). Where (as here) a party seeks mandamus on the ground 
that an agency has unreasonably delayed action, the petitioner must demonstrate 
that the agency’s delay is “so egregious as to warrant mandamus.” Am. Hosp. 
Ass’n, 812 F.3d at 189-90 (internal quotation marks omitted). PMCM has failed to 
make that showing here. 
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The longest pending application in this case—PMCM’s application for 
review of the Cable Deferral Order—was filed in August 2014. See Pet., 
Addendum B. But with 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.  
Likewise, once the Bureau adopted the PSIP Declaratory Ruling, its 
previous order temporarily assigning virtual channel 33 to WJLP—Donald J. 
Evans, Esq., 29 FCC Rcd at 12733—became moot. Thus, it was no longer 
necessary for the Commission to act on PMCM’s November 2014 application for 
review of the Bureau’s temporary assignment order. Mandamus relief is plainly 
unwarranted with respect to the two applications that have become moot. 
At this point, only two of PMCM’s applications for review concern live 
issues. The application for review of the PSIP Declaratory Ruling has been 
pending for about two years (since July 2015). And the application for review of 
the Bureau’s Cable Carriage Orders has been pending for about a year (since June 
2016). These periods of agency deliberation do not constitute the sort of 
“unreasonable delay” that would warrant the extraordinary remedy of mandamus. 
See In re Monroe Commc’ns Corp., 840 F.2d 942, 945-47 (D.C. Cir. 1988) (delay 
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of several years fell “so short of egregious” that it did not justify mandamus); 
TRAC, 750 F.2d at 80-81 (delays of two and five years did not warrant mandamus). 
In any event, the Commission is moving toward completion of the pending 
proceedings. On August 21, 2017, the FCC’s Chairman circulated to the other 
Commissioners draft orders addressing each of PMCM’s applications for review. 
Those orders are now ripe for a vote. The Commission’s progress in these proceed-
ings obviates any need for mandamus. 
PMCM suggests that if these proceedings are not resolved before the next 
must-carry election deadline (October 2, 2017), PMCM’s efforts to obtain carriage 
on cable channel 3 “will likely be frustrated for another three-year election cycle.” 
Pet. 19. But it is far from clear that PMCM would be foreclosed from obtaining 
relief for the next three years if the Commission or the Court later determines that 
WJLP is entitled to carriage on cable channel 3. The Commission’s rules do not 
prohibit mid-cycle must-carry elections in all circumstances.8  
The Court should also deny PMCM’s request “that the Commission … be 
ordered, pending final proceedings in this matter, to immediately restore WJLP to 
                                                            
8 See, e.g., 47 C.F.R. §76.64(f)(4) (new broadcasters may make a must-carry 
election in the middle of a three-year cycle, “any time between 60 days prior to 
commencing broadcast and 30 days after commencing broadcast”); id. 
§ 76.64(f)(5) (a broadcaster may make a mid-cycle must-carry election if the FCC 
modifies the broadcaster’s market for must-carry purposes). In addition, “[a]ny 
provision of the [FCC’s] rules may be waived by the Commission on its own 
motion or on petition if good cause therefor is shown.” 47 C.F.R. § 1.3. 
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channel 3 for cable positioning, virtual channel, and all other purposes.” Pet. 29. 
PMCM argues that it is entitled to such extraordinary relief because “Section 
1452(g) [of the Spectrum Act] protects PMCM’s channel from being changed as of 
February, 2012.” Id. The Court has already considered and rejected that argument. 
When the Media Bureau temporarily assigned virtual channel 33 to WJLP in 
the fall of 2014, PMCM maintained in a mandamus petition that it had a right to 
virtual channel 3 under Section 1452(g). The Court disagreed. In denying PMCM’s 
2014 mandamus petition, the Court held that PMCM had not “demonstrated that it 
has a clear and indisputable right to relief” under Section 1452(g). February 2015 
Mandamus Denial Order (internal quotation marks omitted).  
In attempting to rely on Section 1452(g), PMCM misconstrues the statute. 
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 
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a station’s spectrum usage rights on its [radio frequency] channel.” PSIP 
Declaratory Ruling, 30 FCC Rcd at 6100 ¶ 49. 
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 ¶¶ 221-222 (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. 
Although PMCM asserts that the Media Bureau changed WJLP’s “channel” 
from 3 to 33 (Pet. 9-10), 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. The Bureau did not violate Section 1452(g) by assigning virtual channel 
33 to WJLP. And nothing in the statute mandates that WJLP be assigned virtual 
channel 3. 
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Moreover, while PMCM acknowledges that Section 1452(g)(1)(A) bars the 
Commission from modifying spectrum usage rights for only a limited time, it 
mistakenly believes that the statutory prohibition is still in effect. Pet. 15-16. Under 
the statute’s terms, the prohibition ends on “the first date when the reverse auction 
under subsection (a)(1), the reassignments and reallocations (if any) under 
subsection (b)(1)(B), and the forward auction under subsection (c)(1) have been 
completed.” 47 U.S.C. § 1452(g)(2)(A). On April 13, 2017, the Commission 
released a public notice announcing “the completion of the reverse and forward 
auctions” as well as “the broadcast television channel reassignments and 
reallocations of broadcast television spectrum for flexible use made in the 
repacking process.” Auction Closing Notice, 32 FCC Rcd at 2788 ¶ 1. The Auction 
Closing Notice marked the conclusion of the period governed by Section 
1452(g)(1).9 
  
                                                            
9 PMCM also argues that the plain language of 47 U.S.C. § 534(b)(6) gives WJLP 
a right to mandatory cable carriage on channel 3. Pet. 10-15. To the contrary, this 
Court ruled in September 2015 that PMCM had “not demonstrated a clear and 
indisputable right to such relief” under the must-carry statute. September 2015 
Mandamus Denial Order (internal quotation marks omitted).  
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CONCLUSION 
 For the foregoing reasons, the petition for a writ of mandamus should be 
denied. 
       Respectfully submitted, 
 
       Jennifer Tatel 
       Acting General Counsel 
 
       Richard K. Welch 
       Deputy Associate General Counsel 
 
          /s/ James M. Carr 
 
       James M. Carr 
       Counsel 
 
        Federal Communications Commission 
       Washington, D. C.  20554 
 
 
 
 
August 21, 2017 
 
  
 
 
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CERTIFICATE OF COMPLIANCE 
 
1. This document complies with the word limit requirements of Fed. R. App. 
P. 27(d)(2)(a) because the document contains   6 0 8 1    words, as determined by the 
word-count function of Microsoft Word 2016, excluding the parts of the document 
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 the 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 
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CERTIFICATE OF FILING AND SERVICE 
 
I, James M. Carr, hereby certify that on August 21, 2017, I electronically 
filed the foregoing Opposition of the Federal Communications Commission to 
Petition for Issuance of Writ of Mandamus with the Clerk of Court for the United 
States Court of Appeals for the District of Columbia Circuit using the electronic 
CM/ECF system. Participants in the case who are registered CM/ECF users will be 
served by the CM/ECF system. 
 
/s/ James M. Carr 
James M. Carr  
Counsel  
Federal Communications Commission 
 
 
Service List: 
 
Donald J. Evans 
Harry F. Cole 
Fletcher, Heald & Hildreth, OLC 
1300 North 17th Street 
Arlington, VA 22209 
Counsel for: PMCM TV, LLC 
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