in which this court ruled over the very bitter and intense objection of the f c c that in fact my client had the right to relocated station to new jersey in compliance with the provisions of section three the one  that time the f c c is position has basically been ok the court made us allow you to relocate your v h f station to new jersey but we're only going to give you the skeleton of a just station we're going to strip you of all the rights and all the privileges and all virtual shall run of the new of the earth shall we're going to make it so of that cable systems indefinitely don't have to carry you at all on their systems even though there's an absolute statutory right to such carriage and we're going to make it that we're going to assign you a channel that makes it difficult or impossible for about half of your viewing audience to actually pick you up properly on their television sets so that's why we're back here before you today if as i understand it you saw radio frequency three and that's what they gave you on his channel that's true ok so then the question is just did they correctly applied the protocol given they have radio frequency three protocol seems to assign you to virtual channel thirty three well that's that's what i'd like to talk about other ok so that's it turns out it's not it's not that to do anything today i want to leave you with the certainty that the f c c is application of the protocols and have it's be is wrong but i can say that very confidently produced for two reasons first of all the f c c says that if you apply the piece of protocols you will end up with the result that gives you a single unique channel major channel for any television station the problem with that is when the commission went through the exact exercise that you have to go through t well it no it does not apply directly to what what is there in that set paragraph that well you have to there's there's been some ambiguity raised about what does it mean when you talk about a channel being previously used in the to affect what we have here though is you have a situation where in interpret in the rule that the a t s committee adopted the commission didn't have to look very far because the a t s committee itself adopted a clarifying change to the language in the rule that we're looking at right now that makes it absolutely clear that there is no ambiguity and this is the way the rules should be what you do you are the one that introduced the word ambiguity i believe now you're saying there's no ambiguity i'm saying i for the tax that has the force and effect of law uses the phrase uses the word market write it just not use does not use the phrase d m a market nor does it use the phrase service area why isn't that a classic case where the regulation doesn't speak to which of those two possible measurements of market they have in mind one of those those are not the keywords that are i know there was a lot of discussion in the papers that you seem to know what is market and what a service area i mean you need to signal goes what it's easier to start with your subject of the market flows from that if if you take it that the a v s e committee was correct when it's ed what we meant when we say that something was previously used in a war we meant that there were the that shannon was previously allocated in the market that makes the whole analysis so much simpler because we know for a fact which channel three was never previously allocated to our market and  of us right it could mean allocated in the sense that you're using the word or it could mean use in a more ordinary common sense sounds right if the signal reaches into fairfield connecticut channel three in hartford is using channel three in fairfield connecticut well but under under this allocation clarification of the issues you don't have to worry about you it's all you do is go back to the f c c table of authorities and see what channel three ever allocated to a community in this market and we will have to answer the question whether  it clear what use means it doesn't mean actual transmission over that single in the market it means allocation and the f c c is table to that market so you don't have to worry about actual use as a matter of allocation and then if you're looking at s areas it becomes even more problematic because the f c c is theory is that you look at the could you help me understand and it you said this i just dismissed what why would we be looking to the clarification that was done by ok he said something the well because if you're trying to interpret a rule or a protocol in this case i think you look to do anything you can to find what to the framers of that will mean in this instance you could see the commission itself went and consulted a book that was written a few years before the protocol was written to see what one of the people on the committee had to say about it to try to determine what it meant that's what they did what the commission didn't do for some strange reason they just they put their hands over their ears and their eyes and they said we are not going to look at what the committee said they meant in two thousand and nine and two thousand and thirteen because we haven't adopted that my position is that that clarifies and they made it very clear we're not changing what we did in two thousand and sixteen or two thousand and six we are framers and to me that's that's extremely conclusive because they said here's what we meant i take your point judge wilkins but but but why would you ignore what the people are telling you this is what we met if there's some confusion that has to be resolved i suppose you're right on all of that and and mark it means what you say use means what you say the most that gets you is that one point four doesn't definitively resolve the case against it doesn't that doesn't get you one in title meant to to use channel three and the c has as as a matter of discretion says well if you're using we if we give you three point tand that will tend to harm the branding of the old channel three means the paragraph before doesn't apply so that takes you back to channel two two paragraphs b one b two no it doesn't though because you didn't have you didn't have an existing analog license and you're in whether it's because paragraph one says if you're a newly licensed station which is what the f c c says then you use it just use your digital over here channel so whether you acquire one or two it doesn't matter as long as paragraph four doesn't apply we would still be virtual channel but to go to your further point judge that's us about the you know about the f c c exercising its discretion we i mean we thought it was pretty clear that the protocols actually give us virtual jail three but we said look even if they don't here's a laundry list of factors that we that we know for sure apply to the situation that should that should govern maybe i mean i'm among the foremost of these that we knew from experience the challenge readouts have applied if it's applied works perfectly there's no confusion there's no grand confusion everybody can tune into the signal that they want to tune into and is instead of somebody else's we also know from experience that channel thirty three doesn't work because we ran into the exact problems that the commission said the application of an experience opposed to prevent what you know you also have the situation that we think is important that there are two other competing broadcaster not you know it's right there's no objection but but it sort of shows you that there's really no problem here that the f c c is so concerned about the sky falling if there's overlapping major changes no objections no controversy for the c c to resolve like well i think the question is is it a rule or is it not a rule if you're going to say well we're only going to enforce that if somebody complains that it's not really a rule the other thing and i just got a little bit of time left but the the other thing that i have that we have t stress is that the commission what completely overboard on there on the signing of ports to two brand protection in this case there's nothing in the f c c journey that says that they have any authority or any responsibility whatsoever to protect brands and yet here that has been exalted into the single highest priority that the f c c is saying that it has to place a value on to the detriment of people actually receiving a broadcast signal to the judgment of local programming good morning you may please the court my name is james carr i represent the federal communications commission mr haven't spent a lot of time focusing on an ex the one four but i think it's important to focus on pm scenes argument language of the one that guarantees w j l p the assignment of channel three and that plain language all argument falters it doesn't even survive the first few words of an expedient one one because that provision stores for broadcasters with existing n t s c licenses existing analog license was what's the answer to your friend's point about t which case you have discretion and i didn't go the one extra step to look at two and yes and it's understandable why you didn't look at to your honor because i think it's for the first time this morning that mr evans is mentioned too  but to the way i read it assumes you have a broadcaster without any sort of conflict where there are no other broadcasters in the service area who are disputing the channel and that's why the commission believes that the one for is the more appropriate protocol to apply here because you have a newly licensed digital broadcaster in a market where  a particular channel was previously used but we're only reaching this one or two question on the assumption that you've lost on four yet right so yes so we come to it so we soon you lose off for a suggest an assumption right so then you go you go to one and you say well they they had a license in nevada but that doesn't count the relevant question is do they have the license in new york so they have no existing analog license why would you read that to mean in new york to make two parallel to one again i think if you read the the the entire in context i think two is assuming you have a situation where there's no conflict with other broadcasters and i take your point that you're assuming that be one for it doesn't apply right here right i think another important factor to keep in mind here is that the commission was under no illusions when it adopted an expedient that that particular set of protocols was going to resolve every conceivable possibility every conceivable situation all resolve most situations involving channel allocation in fact most of the majority of allocations are handled by b one one because you have a situation where the digital transition occurs most stations are still in the same market where they were before the transition after the transition they maintain their analog channel as their their virtual channel even if they're on a different digital radio frequency channel  commission understood from the start that there might be situations where an expedient would not resolve this where it was unclear and the commission retained the discretion to deal with situations where there were disputes over channels by weighing the different situations and i think that's what we have here even assuming an expedient resolve this issue the commission is weighing the different factors and considering what should it do it has a dispute among broadcasters about who should be on channel three and when you think about it for the say a second on the equities here's w j l p a newcomer to the market has just started broadcasting in new jersey less than four years ago it's moving into a market and its service area overlaps with two stations w s s p n hartford k y w n philadelphia which have been using to annele three for more than fifty years and they object and the commission has valid concerns as those broadcasters did about the possibility of grand compromise brando that all makes perfect sense in the abstract yes but the one possible hick up right is this other statute which says under the circumstances the the new entrant into new jersey which didn't have  station is supposed to be supposed to sort of come in as a v h f station on this we're in this fictitious world now where v h f is supposed to be better but they're coming in the sort of a f station i get the radio frequency but not the branding so why isn't that a problem under that statute your honor i don't think it's a problem under that statute because that statute written in one thousand nine hundred two was focused on very high frequency jails it's focused on radio frequency channels it doesn't it doesn't say anything about her about her genitals and frankly if it was enough to have a virtual channel on a location that three thirty one has has outlived its usefulness because at this point with with the digital transition v h f channels are simply that they're they're not any longer technological superior focuses a lot on this term a lot of previously a lot of and and if you look at the subsequent version it says something about previously allotted for n t s c that's analog in a mortgage now if he's talking about channel allotments or a tape the table of a lot and so the commission puts out that doesn't talk about markets it talks about communities and you can say well the community is in a particular market but that still begs the question what's the definition of market the table of allotments doesn't specify anything about designated market areas or service area it just talks about particular communities i'm sorry so so a lot the concept of allotment is not necessarily or technologically connected to the d m a i'm not not necessarily right it's focused on  new york market because it would have produced interference you know with the hartford station or the philadelphia sation no well it's of young way of thinking ok that that that  that certainly would be a possibility depending on on the power of the station in new york using using channel three and i think that that's one of the concerns that that was at issue here as well even with virtual channels that if when when pm c m initially said it was going to be using channel three there was a concern among the other broadcasters meredith and c b s that it was going to be using is unambiguous and that the phrase channel number on which is sation is broadcast over the air unambiguously means the radio frequency channel the commission disagreed and explain why  that phrase is undefined in the statute and at the time that muskerry statute was passed in one thousand nine hundred two there wasn't any difference between the channel on which the broadcaster its programming that is the radio frequency channel and the channel to which viewers tuned to receive that station that situation has changed since the digital transition and it was reasonable for the commission to read that phrase channel number on which the station is broadcast over the air to refer now to the virtual channel the channel from the viewer's perspective and that phrase channel number is at least ambiguous in terms of it it it suggests the number by which hewers identify the channel and that now is different from the radio frequency channel for example channel four in washington everybody w r c in washington everybody knows is channel four in fact its digital r f channel is now channel forty eight there probably aren't too many people who know that but the the viewing public knows to tune to channel four to get that channel  and the commission's approach this made perfect sense because it preserved the same system that had been in place before the digital transition before the digital transition if i'm annoying cable subscriber one day i tune cable so precisely and the idea is that the the broadcasters want to reach non cable viewers and cable subscribers on the same channel and they're able to do that through the commission's interpretation of this statute says virtual channel which by the way has been in place since two thousand and eight and has worked just fine for the past ten years pm c m's alternative interpretation would cause considerable chaos and disruption among cable systems throughout the country and so there's no reason for the court to go in that direction when the statute is ambiguous in the commission treated reasonably i'd like to add a question of you yes your friends a spectrum of the the commission in the incentive auction order and that is cited for sure we don't cite it in the brief that we cite the notice the april twenty seventeen notice announcing the end of the process that both the repacking and they they reverse and forward options in footnote one of that notice there is a citation to the incentive auction order and that paragraph five twenty nine and thirty of that order the commission explains how it interprets that and point and in its you and it may also be helpful to look at the judge three of austin's very fine opinion and national association of broadcasters and twenty fifteen where he explains the process it's basically a three step process you have the reverse auction you then have a channel reassignment to clear spectrum so that you can go forward with the forward option if the commission doesn't complete the the so called repacking or channel reallocation a reassignment before the forward auction it doesn't know what it's able to sell it's clearing away spectrum so it has blocks of spectrum that it can then go to the wireless providers and say here's what's up for bid so by the by the conclusion of the forward auction you have the reverse and forward options included and you have the repacking but that's not to say i will hasten to add mr evans is correct that there are still some possible adjustments going forward but the commission made clear when it discussed this issue of paragraphs five twenty nine five thirty five thirty one of and communities are in work so that the reason i said the allotment issues resolved any anything we all have to worry about markets because we know that channel three has never been allotted to any community either in the d in the overlap there is that the commission is concerned about so i wonder any definition of market we know that that that that channel has never been a lot of to the market because it's got it's a commune i say so that's an argument if you win if you is done because it clearly is not done and he finally conceded that with your question you're on and i i would just close by completing the point that i started at the beginning of my argument which is that you know you can be sure that the f c c is wrong p because the commission insists that the purpose of an x b is to guarantee that there will never be two not commonly other major channels that are overlapping in the same service area with the same the same major channel we know that's wrong because you just look at paragraph eight of the two thousand and six version and what it says is it guarantees that there will never be an overlap of two of the two part combination in the market not the major channel but a two part combination in the same market so the commission is clearly misinterpreted that that absolutely clear statement of what n x p guarantees and that's confirmed because if you look at paragraph five six and seven x p it gives you instances of when there are going to be made overlapping major channels which are ok and are permitted in contemplated by the protocols as long as the minor details are different so the f c c has to be water in the way it's interpreted the same thank you very much tha