FCC Sued In Move To Stop ‘Low Power Protection Act’

By Adam Jacobson
Jan 25, 2024

WASHINGTON, D.C. — The owner of a low-power digital television station serving New Haven, Conn., has petitioned the D.C. Federal Appeals Court in a move that seeks to stay, and reverse, the FCC’s unanimous decision to sign the “Low Power Protection Act” into law.

Despite its name, the LPPA has its detractors — including the LPTV Broadcasters’ Association.

Radio Communications Corp., licensee of W24EZ-D in Allingtown, Conn., submitted its suit against the Commission on January 10. Timothy Welch, of Hill & Welch in Silver Spring, Md., is representing RCC, and he followed up the original filing with an Emergency Motion this week — a move designed to place priority on RCC’s fight.

Does RCC have standing? Welch believes it does, as it notes the Commission adopted rules “which prohibit RCC from filing an LPPA authorized application” to upgrade its W24EZ-D to a Primary Class A TV license.

“That upgrade would allow RCC to obtain substantial economic benefits such as protection from involuntary license displacement and the right to assert must-carry on cable TV systems,” Welch said on behalf of RCC. “The economic injuries which [the LPPA] inflict upon RCC can be remedied by this court’s review of the FCC’s actions in MB Docket No. 23-126. Accordingly, RCC has standing to maintain this action.”

RCC licensed its first LPTV station, W28AJ, to serve Allingtown, Conn., and began operating on December 23, 1986. In 2001, it upgraded to primary Class A status per the regulations under the Community Broadcasters Protection Act of 1999. Still, it was denied must-carry status by cable TV

systems “based upon an erroneous reading” of Commission rules, RCC claims.

RCC eventually downgraded W28AJ from primary Class A to unprotected LPTV status. Why? It asserted it was “burdened with the obligations of full power TV stations, but ... denied the significant economic benefit of being able to assert a must carry right on cable TV systems.”

Fast-forward to the spectrum auction and repack of broadcast TV stations. RCC discovered a new digital channel, yielding its current W24EZ-D status. Then came the LPPA. On Dec. 12, 2023, the FCC without dissent among its five commissioners approved the implementation by the FCC of legislation signed into law by President Biden following its passage by Congress.

“SuperFrank” Copsidas, founder of the LPTV Broadcasters Association, tried frantically to get Congress to stop it. Why? As Copsidas told RBR+TVBR in March 2023, S.3405′s provisions apply only to those stations that operate in a Nielsen-defined Designated Market Area with not more than 95,000 television households. That, Copsidas reasons, means markets No. 177 and lower are the only ones that are eligible; twenty-seven states would have zero eligible stations, including Florida and Georgia. Furthermore, California would have just 10 of 185 stations eligible for the conversion to Class A status.

Among the stations deemed ineligible is RCC’s W24EZ-D.

The LPTV Broadcasters Association wanted a version of the bill in the House approved that would allow all LPTV stations to convert to Class A status in the one-year window, including RCC’s station. And, Copsidas argued, the bill, introduced at the end of 2021 by Sen. Roy Blunt (R-Mo.), unfairly assists a company within the state of Missouri — News-Press & Gazette Co. Copsidas pointed to NPG’s home of St. Joseph, Mo., comprised of three Missouri counties and one Kansas county, making it Nielsen DMA No. 201. It’s just far enough away from Kansas City where that market’s TV stations don’t clearly come in with a digital TV antenna. But, Copsidas argues that St. Joseph is really an extension of the Kansas City DMA.

Does RCC have a fighting chance? Under the LPPA, W24EZ-D is licensed to serve Allingtown, Conn., which has with fewer than 15,000 TV households. It does not qualify for Class A upgrade because RCC’s LPTV station is located in the Hartford-New Haven DMA — home to nearly 1 million TV households, “thereby effectively changing W24EZ-D’s community of license for Class A licensing exclusion purposes.”

FCC mapping for the W24EZ-D signal contour clearly shows it reaches not only New Haven but also

Bridgeport, exposing it to multiple communities of significant size.

Now, it is up to the D.C. Appeals Court to determine if RCC’s argument has merit, as the licensee seeks an expedited review and stay of the Congressionally-approved rules.

Original article: https://rbr.com/fcc-sued-in-move-to-stop-low-power-protection-act/