United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2012 Decided December 14, 2012

No. 11-1330

PMCM TV, LLC,

APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,

APPELLEE

On Appeal from an Order of the 

Federal Communications Commission

Donald J. Evans argued the cause for appellant. With 

him on briefs were Harry F. Cole and Anne Goodwin Crump. 

Joel Marcus, Counsel, Federal Communications 

Commission, argued the cause for appellee. On the brief were 

Austin C. Schlick, General Counsel, Peter Karanjia, Deputy 

General Counsel, Richard K. Welch, Deputy Associate General 

Counsel, and Laurence N. Bourne, Counsel. C. Grey Pash 

Jr., Counsel, entered an appearance.

Before: TATEL, GARLAND, and KAVANAUGH, Circuit 

Judges.
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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Section 331(a) of the 

Communications Act directs the Federal Communications 

Commission to approve “reallocations” of very high frequency 

(VHF) television channels to States currently lacking such a 

channel. Relying on this provision, appellant filed an 

application to reallocate VHF channels from Nevada and 

Wyoming to New Jersey and Delaware. The Commission

denied the application, interpreting section 331(a) to require 

reallocations of channels only between neighboring locations. 

Because the Commission’s decision conflicts with the statute’s 

text and purpose and because appellant can move its channels

without creating signal interference, we reverse.

I.

 For most of broadcast television’s history, VHF 

channels have enjoyed substantial technical advantages over 

other broadcasting methods. Reallocation of Channel 2 from 

Jackson, Wyoming to Wilmington, Delaware & Reallocation of 

Channel 3 from Ely, Nevada to Middletown Township, New 

Jersey, 26 F.C.C. Rcd. 13,696, 13,697 (2011) (“FCC Order”). 

Indeed, by the 1950s, most metropolitan areas across the 

eastern seaboard had VHF stations. But the Commission had 

allocated no VHF channels to Delaware and only a single VHF 

channel, which was operating non-commercially, to New 

Jersey. Id. at 13,697. The reason for this was that interference 

from VHF stations broadcasting in New York City, 

Philadelphia, and Baltimore prevented placing additional 

channels in New Jersey and Delaware. Id. at 13,697–98. 

People living in these two States could thus receive VHF 

programming only by tuning in to New York, Pennsylvania, or 

Maryland stations. New Jersey Coalition for Fair 

Broadcasting v. FCC, 574 F.2d 1119, 1121–22 (3d Cir. 1978).
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 The dispute before us today is the latest in a 

decades-long effort to correct this problem. In 1980, New 

Jersey Senators Bill Bradley and Pete Williams petitioned the 

Commission to “reallocate” a New York VHF channel to New 

Jersey. Petition to Reallocate VHF-TV Channel 9 from New 

York, New York, to a City Within the City Grade Contour of 

Station WOR-TV, 84 F.C.C. 2d 280–83 (1981). Moving a 

channel from neighboring New York could be accomplished 

without creating interference because the newly-established 

New Jersey channel would simply fill the void left by the 

vacated New York channel. 

Without waiting for the Commission to act, Senator 

Bradley introduced the statute at issue here. Enacted by 

Congress as part of the Tax Equity and Fiscal Responsibility 

Act of 1982, Pub L. No. 97-248, 96 Stat. 324, 641, the 

provision, now codified as section 331(a) of the 

Communications Act, 47 U.S.C. § 331(a), states:

It shall be the policy of the Federal 

Communications Commission to allocate 

channels for very high frequency commercial 

television broadcasting in a manner which 

ensures that not less than one such channel shall 

be allocated to each State, if technically 

feasible. In any case in which [sic] licensee of a 

very high frequency commercial television 

broadcast station notifies the Commission to the 

effect that such licensee will agree to the 

reallocation of its channel to a community 

within a State in which there is allocated no 

very high frequency commercial television 

broadcast channel at the time [sic] such 

notification, the Commission shall, 

notwithstanding any other provision of law, 
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order such reallocation and issue a license to 

such licensee for that purpose pursuant to such 

notification for a term of not to exceed 5 years 

as provided in section 307(d) of this title.

Prompted by section 331(a)’s second sentence, the 

Commission granted a petition by a New York channel to 

move to New Jersey. FCC Order, 26 F.C.C. Rcd. at 13,698–99.

An unsuccessful competitor for the license appealed the 

Commission’s decision to this Court, contending that New 

Jersey was not “a State in which there is allocated no [VHF] 

commercial television broadcast channel” because the 

non-commercial VHF station operating there had actually been 

allocated as a commercial channel. In Multi-State 

Communications, Inc. v. FCC, 728 F.2d 1519, 1522–24 (D.C. 

Cir. 1984), we relied on Senator Bradley’s extensive 

involvement in the bill’s passage to reject this textual argument 

and hold that the statute did apply to New Jersey. “Construing 

a statutory term,” we explained, “requires more than a 

superficial and isolated examination of the statute’s plain 

words.” Id. at 1522. We also rejected the competitor’s 

argument that other provisions of the Communications Act 

required a comparative hearing, finding that interpretation

inconsistent with the statutory text that “the Commission shall, 

notwithstanding any other provision of law, order such 

reallocation and issue a license.” Id. at 1524–25 (emphasis 

omitted). We concluded that section 331(a) “displaced the 

normal procedures for channel reallocation as well as the 

normal procedures for issuing licenses, including the 

requirement of a comparative hearing.” Id. at 1525.

 Flash forward to 2009 when the United States 

transitioned from analog to digital television broadcasting. 

Because VHF is poorly suited for digital broadcasting, the 

Commission allowed several stations to substitute other 
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channels for their VHF allotments. PMCM TV, LLC c/o Harry 

F. Cole, Esq., 24 F.C.C. Rcd. 14,588, 14,595 & n.38 (2009) 

(“Bureau Decision”). As a result, New Jersey and Delaware 

once again had no VHF stations. But unlike when section 

331(a) was enacted, the digital transition made it technically 

feasible to allocate new VHF channels to New Jersey and 

Delaware on vacated airwaves without creating signal 

interference. FCC Order, 26 F.C.C. Rcd. at 13,707–08.

 Within days of the digital transition and setting the stage 

for the case before us, PMCM, a television station operator, 

proposed to reallocate its Nevada and Wyoming VHF channels 

to New Jersey and Delaware, respectively. Id. at 13,699. The 

Commission’s Media Bureau denied the request. Although 

acknowledging that both moves could be accomplished

without creating signal interference, the Bureau found that the 

proposed moves were not “reallocations” within the meaning 

of section 331(a)’s second sentence. Bureau Decision, 24 

F.C.C. Rcd. at 14,594 n.33, 14,595. In doing so, the Bureau 

conceded that the term “reallocation” was susceptible to two 

different meanings. Id. at 14,590–91. Under the broader 

interpretation, advocated by PMCM, the Commission would 

“consider any allocation of a channel to a state without a VHF 

channel as a ‘reallocation’ if the proponent currently operates a 

station on the same channel somewhere in the United States 

and agrees to terminate service on that channel and move to the 

unserved state to operate on the same channel there.” Id. at 

14,590. The Bureau observed that “although PMCM asserts 

that its proposals are technically feasible, [PMCM] contends 

that the Commission must order such ‘reallocation’ even if it is 

not technically feasible because the second sentence of Section 

331 has no explicit technical feasibility condition.” Id.

Rejecting PMCM’s interpretation of “reallocation,” the Bureau 

concluded that the word meant “the shifting of a channel 

allocation from one community to another community under 
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circumstances where the channel cannot be used 

simultaneously at both locations due to interference concerns.” 

Id. at 14,593. Under this narrower reading, the second sentence 

would apply to moves between neighboring locations, such as 

from New York City to New Jersey, but not to moves between 

distant locations, such as those proposed by PMCM.

 The Commission denied PMCM’s application for 

review. FCC Order, 26 F.C.C. Rcd. at 13,708. Conceding that 

PMCM’s proposed moves would cause no interference, the 

Commission confirmed the Bureau’s interpretation of 

“reallocation,” explaining that “it is more reasonable to 

interpret the term to mean the moving of a VHF channel to a 

new state under circumstances where the channel cannot be 

used simultaneously at the authorized and proposed new 

location because such dual operations would cause 

interference.” Id. at 13,702. 

 PMCM now appeals.

II.

 Congress enacted section 331(a) to solve a specific 

problem existing at the time of its passage—the lack of a 

commercial VHF station in New Jersey. Our task is to 

determine how section 331(a) applies to a situation not 

contemplated by Congress. Although this is hardly an unusual 

undertaking for this Court, it is unusually challenging here 

because Congress held no hearings on section 331(a), passed it 

as a rider to an unrelated tax bill, and used language we have 

found cannot be interpreted literally. See Multi-State 

Communications, 728 F.2d at 1522–24.

 The parties believe that this case turns on the word 

“reallocation” in section 331(a)’s second sentence, although 

they disagree about what the word means. PMCM contends 
7

that section 331(a) uses the term without “limiting condition,” 

Appellant’s Br. 19, and that its proposed moves fall under the 

statute’s literal language because New Jersey and Delaware are

“State[s] in which there is allocated no very high frequency 

commercial television broadcast channel at the time [of] such 

notification,” 47 U.S.C. § 331(a). Although conceding that its 

interpretation would require the Commission to approve 

reallocations that cause signal interference, PMCM maintains 

that the omission of the words “technical feasibility” from 

section 331(a)’s second sentence “invites any commercial 

VHF licensee to fill an allocation gap created by the 

Commission’s failure to comply with the first sentence.”

Appellant’s Br. 25. For its part, the Commission believes that

“reallocation” refers only to moves between adjacent locations 

“because technical feasibility is assured in situations involving 

reallocations of channels to nearby communities where the two 

allocations are mutually exclusive.” FCC Order, 26 F.C.C. 

Rcd. at 13,702. Although conceding that PMCM’s proposed 

reallocations would themselves cause no interference, the 

Commission warns that under PMCM’s broader reading of 

section 331(a), it “would be required to grant any move request 

even if it would cause harmful interference to existing 

stations.” Appellee’s Br. 34.

In our view, the parties’ differing interpretations suffer 

from insurmountable problems. PMCM’s interpretation

creates the potential for signal interference, which would leave 

viewers watching static. Given the basic purpose of the 

Communications Act—to ensure interference-free 

broadcasting—PMCM’s interpretation makes little sense. See, 

e.g., National Broadcasting Co. v. FCC, 516 F.2d 1101, 1110 

(D.C. Cir. 1974) (“Congress created the Federal 

Communications Commission and its predecessor, the Federal 

Radio Commission, because the available space on the 

electromagnetic spectrum was far exceeded by the number of 
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those who would use it.”). Had Congress intended to alter this 

fundamental element of telecommunications policy, we doubt 

it would have done so without hearings and in a two-sentence 

rider to an entirely unrelated tax bill.

 The Commission’s interpretation is equally unsatisfying. 

For one thing, nothing in section 331(a)’s text limits the second 

sentence to “situations involving reallocations of channels to 

nearby communities where the two allocations are mutually 

exclusive.” FCC Order, 26 F.C.C. Rcd. at 13,702. At oral 

argument, Commission counsel conceded that reallocation is 

neither a defined term under the Communications Act nor a 

term commonly used by the Commission. See Oral Arg. Rec. 

23:43–24:39. The Commission also concedes that it has used 

the word “allocation” to refer to any channel allotment without 

regard to geography. See, e.g., Oversight of the Radio and TV 

Broadcast Rules, 1 FCC Rcd. 849, 849 (1986) (“After 

allocating frequencies for broadcasting purposes, the 

supervising Mass Media Bureau allots frequencies to 

geographical areas in the U.S.A. and its territories and 

possessions for specific services therein.”). Moreover, the 

Commission’s interpretation conflicts with Congress’s plainly 

stated goal to “ensure[] that not less than one [VHF] channel 

shall be allocated to each State, if technically feasible.” 47 

U.S.C. § 331(a).

 Setting aside the parties’ unilluminating dispute over the 

meaning of “reallocation,” and focusing on the two things we 

do know about Congressional intent—that Congress passed the 

Communications Act to ensure interference-free 

broadcasting and section 331(a) to ensure that every State has

at least one VHF station if technically feasible—we think 

section 331(a)’s meaning becomes clear despite the statute’s

linguistic defects. The first sentence directs the FCC to allocate 

VHF channels to each State where technically feasible, and the 
9

second sentence directs the Commission to grant any proposed 

technically feasible reallocation to unserved States. Interpreted

this way, section 331(a) fulfills congressional intent: it ensures 

that every State will have a VHF station so long as that goal can 

be accomplished without causing signal interference. This is 

the best interpretation of section 331(a) because it reads the 

two sentences as a coherent whole and is consistent with the 

basic purpose of the Communications Act.

 In reaching this conclusion, we realize, as PMCM 

repeatedly reminds us, that unlike section 331(a)’s first 

sentence, its second sentence does not mention technical 

feasibility. But if, as we think, the second sentence functions as 

a subpart of the first, then Congress had no need to mention

technical feasibility in the second sentence. Nor is it significant

that the second sentence contains the phrase “notwithstanding 

any other provision of law.” As we explained in Multi-State 

Communications, this language simply serves to “displace[] 

the normal procedures for channel reallocation as well as the 

normal procedures for issuing licenses.” 728 F.2d at 1525.

III.

 Given the foregoing and given the Commission’s 

concession that PMCM’s proposal is technically feasible, we 

reverse and remand to the Commission with instructions to 

approve the reallocations.

 So ordered.