TVStudy Passes the DC Circuit Test

[Commentary] A seemingly small but crucial element of the Federal Communications Commission’s incentive auction preparations has survived a broadside attack in the US Court of Appeals for the DC Circuit. As a result, TVStudy lives on and the auction’s approach continues unimpeded. At issue was the fact the FCC decided, in connection with the auction, to tweak the way it calculates TV station coverage areas and interference. Of course, what looks like a useful tweak to a regulator may look like a major -- and harmful -- overhaul to a regulatee. Luckily for the Commission, the court saw tweak rather than overhaul.

The result here probably shouldn’t surprise us. After all, the subject matter -- the operation of OET-69, a process which even savvy communications lawyers may not be familiar with -- is highly technical. Often, judges seem uncomfortable wading into deep technical weeds, especially when, under Chevron, the agency is supposed to be accorded mucho deference. Whether TVStudy was indeed the innocent and inspired innovation that the FCC claimed or a bit of high tech high jinks, as some feared, it makes little difference now. The court has blessed TVStudy, and we will have to look forward to its implementation as the auction plays out.