into the auction and in order to have more impact on the back supposedly to serve the higher end of that is a practical consequence of what's going on there are many legal population server the owner of the commission shall make all reasonable efforts to preserve as a february twenty second two thousand and twelve the coverage area and population survey of each broadcast television licensee period and then it says for purpose of determining the coverage area say the the commission full use reasonable effort to research populated areas to the extent you believe to be reasonable and consistent with other goals into the act and as i heard you or your alternate stack that i was struck that you know the things that are missing are the same things that the commission takes out of this data isn't asked off a particular date you have to be able to determine something purpose and i think they really need to emphasize that you know the methodology of the commission sees it is an empty vessel you change all the data sources and you can change what the outcome is so that they have turned that as the c wording on the commission's part i'm sure that well there's no doubt about that it would win it but if you just if you just vary from just one second which is i take your point and that's the that's i understand where you're making that response but if you take that response out of the field of play just for a second and you just look at the statutory language i guess my question is the quote methodology described in no way to vote and sixty nine close quote that doesn't tell you that you have to use any particular census then i think that in the  and basically say that this text really and in the abstract could be any mathematical formula there's no point to specifying that for two reasons number one there was no debate as to whether that formula good part of it for the wireless company and then tell me that i have won because in a victory of demography the population of the country grew over the last ten years now that happened on average over the country nine point seven percent a commissioner saying that rather than using the tools that existed and were available to congress and pretty well is going to come up with different tools to do something of a different mother i would i'm not i don't know that that example necessarily i'm not sure which way that cuts because if they're in fact was dramatic population change in some service area why would we think that what congress wanted to do was to base the calculations on dramatically outdated population data because the way that different in that part of latin in or if you want to have your of out in that part of the world each then you will have no television in just of the wireless carrier would not accept that it would be no service while you are under the road just because the methodology is not for what you need to do repack so that the game here is on how the commission is going to build the constrain files how are we going to determine the needs and bounds of what we have in common well to determine what will be sa in the back end but if you look at the order there is a paragraph where they explain to you that before any of this comes up i think there's one fourteen they have to build constrain files  in the in the methodology is going to understood to try to get more spectrum out of the act under the guise of complying with a reasonable effort clause that is intended actually to preserve to the extent possible by then turning around in the order and saying you guessed wrong you know the switches were supposed to be in a different way or you you know the wrong software yeah yeah yeah but all of that is a failure  version itself was that you know the arkansas it's seems a little different than sprint because at the least here i take your point that it was not the agency itself that issued the notice but it was put in the federal register and it was and the second one was then there was no proposed rule making because the entity doing the proposing could not propose rules and that identical here this court did not say that you needed both and obviously if  comes in something that is not a notice of reform rule making then it doesn't comply with the a p a you know the key point is that you know the ins you went for a double whammy in that case but just because they only did one of those things wrong here going back to what you first said which was although this is called voluntary it's far from voluntary and that was a question i had was one of these broadcasters don't want to get involved in this auction well intentioned they have quote and so the final order does say in paragraph one seventeen to protect nonparticipating stations the commission decided that the repacking feasibility checker and i don't know who that is but will literally true but in the context of the order meaning less because if they go on to say in partner one sixty six rather than covering the area where people actually get  but it is our claim that any stagger that can jump that we said you have to give the area and a relation for which really speak to with you can get service without interference with the commission really has executed their duty or whether it really worthwhile to start with an example because really what the government is doing is saying we'll give you the same point for him and we will give you some of the area to the extent this properly even though just  in then people that you used to reach with translators that we gave you and did they get all transferred incision for the express purpose of allowing you to continue to reach the people you were reaching about you know the coverage area is because you're different crime different types of roughly those that you put in throughout the area to cover the terrain in the country or are the ones that we're talking about if you want to put one outside the allow you to reach the population you refer so let me ask the question this way if the statutes piece in terms of protecting the coverage area and population survey of each broadcast television licensee so if you're talking about a particular broadcast television licensee and you're asking what's their coverage area does that coverage area include whatever coverage is enabled by the feeling translator yet all the miners by the finale does that because i said earlier you know the way you do that basically is doing this for very little incremental gain it is not allowed to say i don't like the poll that congress gave to save the broadcasters and i'm going to substitute it for the one i like better we do expect them to the  e and that's the fundamental problem i think all of this may please the court my name is john hain counselor for petitioner sinclair broadcast group includes the largest broadcaster in the united states owning and operating one hundred sixty two television stations in the great majority of states in the country with  minute for rebuttal you have a television station in montana you know i believe sinclair does your honor but i don't know for certain what is your vision of what's going to happen to that television station well let's just take for granted that montana is a remote area unpopulated b in remote in unpopulated areas the f c c still intends to recover and reclaim spectrum it may not need to purchase as many television stations in those areas and certainly depends on how close it is to the canadian border because that has an impact on the f c c ability to repack because of constraints across the bord and we can anticipate that in montana the f c c will need to recover fewer television stations than it will in new york or los angeles or or detroit but so is it you just won't be it right the more remote the area the less difficulty the f c c has in reclaiming the spectrum it wants to reclaim so that it can repack before i begin my argument i'd like to clarify one point the fill in translators that assertion was speaking to are licensed under the same license as the main television station they are part of the same license what were the authority first to can only repacked following a valid reverse and set of auction and second what every packet must use all reasonable efforts to preserve broadcast service this case is about the f c c attempt to skip over those two requirements of the act in order to recover more spectrum that would otherwise be able to recover and also to rush the repacking process to the point at which it will knock some television stations off the air altogether for an  period of time i want to start first with the thirty nine month hard deadline that the f c c adopted the f c c determined and spite of the fact that congress gave the f c c ten years to conduct the instead of auction the f determined that it wanted to rush the conduct the auction as quickly as possible and recover the broadcast spectrum as quickly as possible and in doing so it set a thirty nine month deadline by which all television stations after the auction must cease operations on their preoccupy and regard most of whether they've been able to build a new station even if that's beyond their control even if the reason that the is because the f c c gave a permit and the forward option in following the reverse option that they just can't build out so if you're not in or if we're not in a recount situation but we're in a situation in which there's just talk of a new construction what's the timeframe within which the new construction is required to be made new construction time frame under the rules is thirty six months that that there has never been a situation before in which potentially a thousand or more television stations had to be constructed in a thirty six month period in fact the real process is that and this is this isn't the record and one of the end sort of manufacturers said once we get an order it can take us a minimum of nine months to build an amp senate this is this is handling this is not assembly line of work right this is very skilled labor and it's very very custom equipment and we also have a very contract that industry after the digital transition the industry can supply industry contract and then two years ago the and post a freeze on all broadcast television station applications in order to fix everything for the auction this to stop to stop everything the result of that is the supply industries have many of them have gone out of business many of suppliers the others are down the skeletal workhorses they've had no business for two years and now the a c c is saying and spite of all of the industry suppliers that have to that have to make this transition happen ye sea is said we think they'll step up to the plate and make this happen it shows into a footnote the f c c doesn't have to footnotes a long string cite of commenters from these supply industries that says there's no way that this can happen in thirty nine there's another aspect that's troubling here and that the f c c is skipping over the two competing licensees requirement in order to reclaim morse stations and it could otherwise replying that compounds the repacking problem because it leads to more repacking than the would otherwise be able to accomplish which compounds the problem of having all the work done within the thirty nine month period the f c c again cannot repack without having a first a valid incentive auction on the front description isn't detailing but of the four thirty five and and but in general as i described it it is those three steps that the issue here of look methodology is a process for analyzing a problem methodology is not data months were what i meant what i was trying to say the answer is no there isn't that big a fuller description of what the methodology is there is quite a complete description of what the methodology is not in so far as if we're going to know  coverage area and population sir but only to use all reasonable efforts and that news of that language recognize that this is case is not in the and the spectrum auction is not all about the broadcasters the spectrum auction was given gave the commission authority to conduct workable incentive auction to repurpose spectrum from those small broadcasters that voluntarily decided to relinquish it to repurpose that spectrum for the clear that spectrum and repurpose it for more flexible uses i'm the last part of the the commission's interpretation of what is as it existed on that day not as it would have been calculated on that and at the minimum that's a reasonable interpretation of what i think is not particularly ambiguous but even assuming it was in which language th as it was in existence on february twelfth for twenty second twenty twelve but then there's another part of the room which is that regardless of that you have to make a reasonable effort to preserve both coverage area and population serve and what you're doing is one to the exclusion of the other well that's an argument outside of america so if we would turn to that argument the absence of that doesn't really depend on the interpretation the term methodology with so there isn't an argument that with regard to unpopulated clear that what it would do was take this station signal contour that it had on its old trail and then it would replicate that in a new channel i understand from the engineers that when you move the station from one channel to another so in this case say from channel fifty down the channel thirty five on the signal will travel different but it will propagate differently or it will cover it gives a different theory that was an important part of the commission's decision to say look we won't leave you with where you would be coverage here now the specific objection broadcasters have and this is technical but is when the condition decides to repack it has another constraint it takes account of interference only with regard to populated area so  placing a station on a particular trail that there is interference but the interference is only over an unpopulated area the commission will still repacked a station in that channel why because the only interference is in a place where nobody lives and that is a separate question from preserving the coverage area they preserve the government how does that how is not the upshot of that then then it morse coverage area and population survey of public housing the upshot of that seems like it then morse coverage area and population serves no because the commission's done something already independently which is to replicate that so one of the things the commission said to what end i mean it you can have a first to one hand because you could have a for had it sounds like what you're saying is there's a first step that involves drawing a map of the covers continuously the same ord that was covered before and then there's a second step and at that second step we don't care about the areas within that contiguous border that are unpopulated well that's not precisely true so only where there's so imagine that you have let's look at this imagine a circle signal will go over populated areas and unpopulated areas this only is what does the mission have to do in light of its reason all reasonable efforts of when it's deciding to repack to doesn't have to protect from populated areas  clearly take into account that the area is unpopulated when it's deciding where to go that that's what that that issue is i'm sorry can i ask you a question about a different topic which is the filling translators  coming translators with the practical problem there's a legal problem let's start with a legal problem the structure defines the broad what it broadcast television license years and its progress was very careful to say it's a full power television station or a low power television station that's been exported primary sort of  i and i get your trash along you know licensee but it also talks about making all reasonable efforts to protect coverage area and if the coverage area of a broadcast license see includes the coverage area of the fill in translator then the fact that the fill in translator may be operating under if i'm just asking the question what's the coverage area of broadcast licensee want you telling me the answer to that question doesn't depend on their coverage supplied by an associated filling translator for broadcast particular reason to keep even though the commission of knowledge that there is a good purpose to have some kind of replacement translator and institute a good proceeding here after the repacking to decide where the problem might lie and to establish spectrum act refers not merely to a methodology but to the outputs of that methodology namely quote the coverage area and population survey of each broadcast licensee and quote as they were calculated on february twenty second two thousand and twelve i want to draw the court attention to the fact that those last words of that sentence are nowhere in the statute what they've done is take a modifier that is at the beginning of the sentence which they purport to quote and move it to the end as a matter of fact if you look at the sentence in question it's clear as the commission has said that the as of february twenty second two thousand and twelve language modifies population served in coverage area and when you're thinking about how do you preserve population certain coverage area as of february twenty eighth well it makes perfect sense that you do so using the latest data that you have available you don't use outdated that and you don't use inaccurate and yet that's the important petitioners argument i'd like to briefly mention an argument petitioners raise in their reply they point to several statutes that actually use the but we've heard that if you actually did the work now and you ask what's the coverage area population served using only t sixty nine that two thousand and ten census data would not be used that it would still be based on two respect to that application as well but i would also point out actually that the citations officials offer for that proposition their reply brief and if you give me a moment they say j thirteen twelve thirteen thirty three neither of those pages actually stand for the don't i mean i guess you're not commission counsel so you don't necessarily know one way or the other but as a practical matter do we know whether as a practical matter i do not know but i think i think the bottom line answer is that the incremental dr and incrementally of action doctrine really covers the and use that to determine the population baseline and then they're going to replicate that population baseline when they reassign the stations with respect to coverage area and whether that's been read out of the statute just in of us and i just want to return to that momentarily what's going come out from a different direction than the commission counsel when the commission is preserving population served they are preserving areas that were that are already populated making sure there's no interference in those areas but if that's all they were doing they could draw the contour in such a way that they actually exclude those areas of the signal we're not even reach them by road by making sure the signal propagates to the entire circle to oversimplify who bit they are in fact tracked in coverage area and so the idea that coverage area has been read out of the statute is not correct finally with respect to translators commission counsel has already explained why the statute is to the contrary i want to also mention that the anybody in their papers below actually took the opposite position of the position they're taking now this is a joint appendix twelve thirty two and thirty three they greet with the interpretation the f c c advances they said quote congress does not protect translators in the same manner as full power and class a stations unquote and quote as a natural consequence of the auction as authorized by the spectrum act a significant number of the television translator stations will be forced to go off the air and quote and last but not least let me mention just more generally that there are a number of assertions  did it consider the sense of part of the methodology but at the end of the day you know the key question is whether congress was trying to price predictability over absolute precision and what's important here at the end counsel them to reject the facts these are all of the facts of the commission came up with on theories of the statute and of of the reality that is never noticed and so the commission can come into this court and say i found the opposite you your honor judge henderson i'd like to return to the question that you ask because i'm not sure i really answered it the first time around your question i believe was what happens to a station in montana if the f c c doesn't need spectrum there the answer is stations all over the country regardless of whether the f c c needs to actually have volunteers participate in the option in that area or subject to repacking so the f c c is going to start a channel fifty one and go down to channel thirty seven or perhaps ship down to channel twenty eight you're going to be repacked whether the f c c really needs volunteers in that area or not and that's our point about the two competing bettors to the extent the f c c goes into the single better markets and buys more spectrum it increases the clearing target so it makes the auction much bigger than it would be if it complied with the strictures of the act and the f c c says a paragraph or fifteen that's expressly why it's ignoring the two competing better requirement because it wants to reclaim more spectrum the impact of that is to force more stations to be repacked even where the f c c does not need spectrum that and that that in places more disruption and more cost on sinclair and other broadcasters which is the basis of our complaint