United Chch Christ v. FCC

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2003 Decided May 9, 2003

No. 02-1039

OFFICE OF COMMUNICATION, INC. OF THE
UNITED CHURCH OF CHRIST, ET AL.,
PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS

ASSOCIATION OF PUBLIC TELEVISION STATIONS,
INTERVENOR

On Petition for Review of an Order of the
Federal Communications Commission

Harold Feld argued the cause for petitioners. With him on
the briefs was Andrew J. Schwartzman.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Daniel M. Armstrong, Associate General Counsel, Federal
Communications Commission, argued the cause for respon-
dents. With him on the brief were Catherine G. O’Sullivan
and Andrea Limmer, Attorneys, U.S. Department of Justice,
Jane E. Mago, General Counsel, Federal Communications
Commission, and Rodger D. Citron, Counsel. C. Grey Pash,
Jr., Counsel, entered an appearance.
Kevin C. Newsom argued the cause for intervenor. With
him on the brief were Robert A. Long, Jr., Marilyn Mohr-
man–Gillis and Lonna Thompson.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Office of Communication, Inc.
of the United Church of Christ, the Alliance for Community
Media, and the Center for Digital Democracy (hereafter ‘‘the
UCC’’), petition for review of the Commission’s Order clarify-
ing that noncommercial public television stations may offer
subscription services, including advertiser-supported sub-
scription services, on their excess digital capacity. In re
Ancillary or Supplementary Use of Digital Television Capac-
ity by Noncommercial Licensees, 16 F.C.C.R. 19,042 (2001)
(‘‘2001 Order’’). The UCC contends that the 2001 Order is
contrary to both the plain language of § 399b of the Commu-
nications Act, 47 U.S.C. § 399b, and Commission precedent.
We hold that the Commission reasonably interpreted § 399b
to prohibit only ‘‘broadcast’’ and not other transmissions of
advertisements by these stations. We further hold that the
Commission adequately addressed its precedent by explaining
that the high costs of digital technology required greater
flexibility, that digital technology offers enough capacity that
public stations can offer subscription services while still pre-
serving their primary use for public educational broadcasts,
and that some prior Commission decisions had authorized
such stations to operate their facilities for commercial pur-
poses on a limited basis. Accordingly, we deny the petition
for review.
 3

I.
In 1997, the Commission issued its Fifth Report and Order
implementing the rules to manage the transition of the na-
tion’s television technology to digital format. See In re
Advanced Television Sys. & Their Impact upon the Existing
Television Broad. Serv., 12 F.C.C.R. 12,809 (1997). As sum-
marized by the Commission, that Order established standards
for license eligibility for digital broadcasting, specifically re-
quiring that broadcasters continue to provide one free over-
the-air television service in accordance with § 336 of the 1996
Telecommunications Act. In re Ancillary or Supplementary
Use of Digital Television Capacity by Noncommercial Licen-
sees, 14 F.C.C.R. 537, 537 (1998) (notice of proposed rule
making) (‘‘NPRM’’) (citing 47 U.S.C. § 336). The Commis-
sion also permitted digital television licensees to ‘‘provide
ancillary or supplementary services provided these services
do not derogate the free digital television service.’’ Id.
Because the Commission did not differentiate between com-
mercial and noncommercial licensees,1 the Association of Pub-
lic Television Stations (‘‘APTS’’), a national representative of
noncommercial television broadcast licensees that is an inter-
venor in the instant case, moved for clarification as to wheth-
er public television stations would be able to use excess
digital television spectrum capacity to generate revenue
through the provision of ancillary or supplemental services.
Id. In response, the Commission issued a Notice of Proposed
Rulemaking and opened a new proceeding, id. at 538, during
which it received comments from APTS, the UCC, and other
parties.
The Commission concluded in the 2001 Order on review
that noncommercial public television stations could use their
1 Under the Communications Act, a ‘‘noncommercial education-
al broadcast station,’’ a term synonymous with ‘‘public broadcast
station,’’ is a ‘‘noncommercial educational radio or television broad-
cast station TTT which is owned and operated by a public agency or
nonprofit private foundation, cooperation, or association’’ or ‘‘is
owned and operated by a municipality and which transmits only
noncommercial programs for educational purposes.’’ 47 U.S.C.
§ 397(6).
 4

excess spectrum for revenue-generation through the provision
of ancillary or supplementary services, including the provision
of subscription television, so long as those activities did not
interfere with the primary operation of the station as a
nonprofit, noncommercial, educational broadcaster that must
also at all times provide one free over-the-air television
broadcast service. 2001 Order, 16 F.C.C.R. at 19,048–50.
Upon considering comments on whether any of the revenue-
generating ancillary or supplemental services could be adver-
tiser-supported, particularly advertising that is provided over
subscription television, see NPRM, 14 F.C.C.R. at 549–50, the
Commission concluded that advertising would only be permit-
ted for ‘‘non-broadcast’’ services, and that pursuant to its
decision in In re Subscription Video, 2 F.C.C.R. 1001 (1987),
subscription television services were ‘‘non-broadcast’’ and
therefore could be provided on an advertiser-supported basis
by noncommercial public television stations. 2001 Order, 16
F.C.C.R. 19,052–56. The Commission reiterated that adver-
tising would not be permitted on ‘‘broadcast’’ services, and
that the ancillary ‘‘non-broadcast’’ services could not interfere
with the station’s obligation to serve primarily as a noncom-
mercial broadcaster. Id. at 19,053–56.

II.
In its petition for review, the UCC contends that the 2001
Order violates § 399b because it is contrary to the plain
language of § 399b and that the Commission erred in relying
upon the definition of broadcasting from its 1987 Subscription
Video decision on the ground that Congress was assuming a
different definition of broadcasting when it enacted § 399b in
1981. The UCC further contends that the FCC has inade-
quately explained its departure from agency precedent that
prohibited broadcasting of advertisements by noncommercial
public television stations and restricted the transmission of
subscription television by those stations.
The court’s review of the Commission’s 2001 Order is
confined to determining whether it is ‘‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
 5

law.’’ 5 U.S.C. § 706(2)(A). Our review is thus deferential,
presuming the validity of the Commission’s action, and the
court must affirm unless the Commission failed to consider
relevant factors or made a clear error in judgment. Davis v.
Latschar, 202 F.3d 359, 365 (D.C. Cir. 2000); see, e.g., Citi-
zens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
415–16 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977). For challenges to the Commis-
sion’s construction of the statute it administers, the court’s
review is governed by the familiar framework in Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). Under the first step of the analysis the court must
determine ‘‘whether Congress has directly spoken to the
precise question at issue.’’ Id. at 842, ‘‘If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress.’’ Id. at 842–43 (footnote omit-
ted). For this purpose the court ‘‘must first exhaust the
traditional tools of statutory construction,’’ including legisla-
tive history and statutory structure. Bell Atl. Tel. Cos. v.
FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (quotations omit-
ted). Under the second step of the analysis, if ‘‘Congress has
not directly addressed the precise question at issue,’’ the
court must decide whether the agency’s action is a ‘‘permissi-
ble construction of the statute,’’ to which the court must
defer. Chevron, 467 U.S. at 843. The court’s review of the
Commission’s interpretation of its own regulations, in turn, is
more deferential, giving ‘‘controlling weight’’ to the Commis-
sion’s interpretation ‘‘unless it is plainly erroneous or incon-
sistent with the regulation.’’ High Plains Wireless, L.P. v.
FCC, 276 F.3d 599, 606 (D.C. Cir. 2002) (quotation omitted);
see Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994).

A.
Subsection (a) of § 399b defines ‘‘advertising’’ as any mes-
sage or other programming material which is broadcast or
otherwise transmitted in exchange for any remuneration and
which is intended —
 6

(1) to promote any service, facility, or product
offered by any person who is engaged in such offer-
ing for profit;
(2) to express the views of any person with re-
spect to any matter of public importance or interest;
or
(3) to support or oppose any candidate for politi-
cal office.
47 U.S.C. § 399b(a). Subsection (b) then restricts the types
of services that can be offered:
(1) Except as provided in paragraph (2), each public
broadcast station shall be authorized to engage in
the offering of services, facilities, or products in
exchange for remuneration.
(2) No public broadcast station may make its facili-
ties available to any person for the broadcasting of
any advertisement.
According to the UCC, the Commission’s 2001 Order violates
the plain language of § 399b by allowing the transmission of
advertisements by public broadcasting stations. The UCC
maintains that the broad language in § 399b(a), which in-
cludes messages ‘‘otherwise transmitted’’ within the definition
of ‘‘advertising’’ as well as the blanket prohibition of
§ 399b(b) on ‘‘any person’’ using facilities to broadcast adver-
tising, necessarily means that the Commission’s distinction
between ‘‘broadcast’’ and ‘‘non-broadcast’’ services does not
apply in the context of § 399b. But, as the Commission
responds, the only provision of § 399b that prohibits advertis-
ing by public broadcasters refers only to ‘‘the broadcasting of
any advertisement,’’ and therefore the ‘‘broadcast/non-
broadcast’’ distinction is grounded in the terms of the statute.
Moreover, the structure of § 399b, which defines advertising
as material that is ‘‘broadcast or otherwise transmitted,’’ and
then prohibits only advertising that is ‘‘broadcast’’ supports
the distinction drawn by the Commission.
The UCC’s position that the 1987 Subscription Video deci-
sion cannot apply to the definition of ‘‘broadcasting’’ in § 399b
 7

is similarly flawed. In Subscription Video the Commission
ruled that subscription television (and other telecommunica-
tions services) the could be viewed only by customers who
had purchased special equipment and paid a subscription fee
is not ‘‘broadcasting’’ for purposes of the definition of that
term in § 153(o) (now § 153(6)) of the Communications Act.
In re Subscription Video, 2 F.C.C.R. 1001, 1004–06 (1987)
aff’d sub nom. Nat’l Ass’n for Better Broad. v. FCC, 849 F.2d
665 (D.C. Cir. 1988). The Commission explained in the 2001
Order, citing Lukhard v. Reed, 481 U.S. 368, 379 (1987)
(plurality op.), that in the absence of any indication by
Congress that § 339B locked in the Commission’s pre–1987
interpretation of ‘‘broadcasting,’’ it relied on the analysis in
Subscription Video to conclude that subscription television is
not ‘‘broadcasting’’ for purposes of the prohibition under
§ 399b(b). 2001 Order, 16 F.C.C.R. at 19,053–54 & n.60.
The UCC maintains that at the time that Congress enacted
§ 399b in 1981, the definition of ‘‘broadcasting’’ included
subscription television under both Commission and judicial
precedent, that Congress must be inferred to have been
aware of that interpretation, and that Congress must be
inferred to have adopted that interpretation and codified it in
the language of § 399b. Thus, even if the Commission’s
interpretation of ‘‘broadcasting’’ was appropriate for the gen-
eral definition of the term under the Communications Act as a
whole, the UCC contends that it is inappropriate for § 399b’s
definition of the term.
The Supreme Court has acknowledged that it has not
always spoken in ‘‘entirely consistent terms’’ regarding the
effect of reenactment in the absence of affirmative indications
of agreement with agency regulations. Helvering v. Grif-
fiths, 318 U.S. 371, 395–96 & n.47 (1943); see Doris Day
Animal League v. Veneman, 315 F.3d 297, 300 (D.C. Cir.
2003). In Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833 (1986), a case most favorable to the UCC, the
Supreme Court stated that ‘‘when Congress revisits a statute
giving rise to a long-standing administrative interpretation
without pertinent change, the congressional failure to revise
or repeal the agency’s interpretation is persuasive evidence
 8

that the interpretation is the one intended by Congress.’’ Id.
at 846 (quotation omitted). This court, on review of the order
in Subscription Video, recognized, however, that ‘‘Commis-
sion [has] exhibited some inconsistency in its treatment of
various forms of subscription television service as being or
not being ‘broadcasting.’ ’’ Nat’l Ass’n for Better Broad., 849
F.2d at 667 (footnote omitted). While the UCC appears to
contend that prior to Subscription Video the Commission had
a blanket rule that any sort of subscription television or other
subscription transmission service was not ‘‘broadcasting,’’ the
history is more complex. Subscription television was general-
ly considered to be broadcasting under Commission prece-
dent, see Nat’l Ass’n of Broadcasters v. FCC, 740 F.2d 1190,
1201–02 (D.C. Cir. 1984); see also Telecomms. Research &
Action Ctr. v. FCC, 801 F.2d 501, 514–15 (D.C. Cir. 1986),
since the 1960s, see In re Amendment of Part 73 of the
Commission’s Rules & Regulations (Radio Broad. Servs.) to
Provide for Subscription Television Serv., 15 F.C.C.2d 466,
472–73 (1968); In re Amendment of Part 73 of the Commis-
sion’s Rules & Regulations (Radio Broad. Servs.) to Provide
for Subscription Television Serv., 3 F.C.C.2d 1, 8–11 (1966).
However, the Commission and the courts in addressing a
similar issue sent mixed signals in their treatment of whether
certain kinds of subscription radio services were broadcast-
ing. See In re Amendment of Section 73.202(b), 61 F.C.C.2d
113, 117–18 (1976); see also Functional Music, Inc. v. FCC,
274 F.2d 543, 548 (D.C. Cir. 1958); KMLA Broad. Corp. v.
Twentieth Century Cigarette Vendors Corp., 264 F. Supp. 35,
40–42 (C.D. Cal. 1967)
Furthermore, the UCC’s position would result in an anoma-
ly: In National Association for Better Broadcasting the
court held that under Chevron II the Commission in 1987
reasonably redefined ‘‘broadcasting’’ under the 1934 Commu-
nications Act for purposes of subscription services. 849 F.2d
at 668–69. Were the UCC’s position to prevail, the court now
would conclude that an interpretation of the statute’s term
‘‘broadcasting’’ excluding subscription television is reasonable
for all of the regulatory scheme except § 399b, largely be-
 9

cause that provision was enacted years after adoption of the
basic scheme.
The legislative history on which the UCC relies does not
advance its position. The UCC points out that when Con-
gress enacted § 399b it was concerned about Commission
regulations that would have expanded the opportunities for
public broadcasters to obtain money from various services.
See H.R. Rep. No. 97–82, at 23–24. The UCC further notes
that Congress approved a temporary pilot program to explore
advertising, but did not renew that program, see Public
Broadcasting Amendments Act of 1981 § 1232, 95 Stat. at
731, and Congress was concerned in 1981 about commerciali-
zation in public broadcasting, see H.R. Rep. No.
97–82, at 16. However, as both the Commission and interve-
nor point out, the legislative history endorsed increased flexi-
bility on the part of public broadcasters in seeking money-
making opportunities, prompting the enactment of
§ 399b(b)(1). See H.R. Rep. No. 97–82, at 7–8. Nothing in
the legislative history reveals congressional concern about the
specific issue of advertising-supported subscription television.
We therefore conclude that, under the first step of the
Chevron analysis, the intent of Congress is not clear on the
permissibility of advertising-supported subscription television
provided by noncommercial licensees and reject the UCC’s
contentions on this point. The UCC does not explicitly
contend that the Commission’s interpretation is impermissible
under the second step of Chevron; it contends that the
Commission’s interpretation has not been adequately sup-
ported in the rulemaking proceeding. Hence, we turn to the
latter question.

B.
The UCC contends that the 2001 Order is arbitrary and
capricious because the Commission did not adequately explain
its reversal of ‘‘two longstanding Commission policies.’’ The
UCC refers to (1) a ‘‘policy of 50 years to prohibit [public
broadcasters] from offering any form of advertiser supported
programming or sharing [public broadcaster]-dedicated fre-
 10

quencies with commercial broadcasters,’’ and (2) a policy ‘‘of
declining to grant general authority to [public broadcasters]
to offer subscription television services.’’ Petitioners’ Br. at
34–35. In the Commission’s view, changes in technology now
allow multiple channels on digital frequencies such that the
flat ban on advertising is no longer appropriate, the policy on
subscription television previously allowed a case-by-case re-
view of whether public broadcasters could offer subscription
television, and the current change to blanket approval is
justified by a change in technology. The UCC counters that
the Commission’s multiple channel argument is a post-hoc
explanation and does not respond to prior Commission con-
cerns about the use of any advertising on public television.
Starting in 1952, the Commission prohibited the use of
commercials on public television. See In re Amendment of
Section 3.606 of the Comm’n’s Rules & Regulations, 41
F.C.C. 148, 165–66 (1952). The Commission rejected pleas
for allowing limited advertising on public broadcasting and
expressed concerns that any use of advertising by public
broadcasters would fundamentally undermine their non-
commercial status. Id. Years later the Commission empha-
sized a need to ‘‘remove the programming decisions of public
broadcasters from the normal kinds of commercial market
pressures.’’ In re Comm’n Policy Concerning the Noncom-
mercial Nature of Educ. Broad. Stations, 86 F.C.C.2d 141,
142 (1981); see also In re Comm’n Policy Concerning the
Noncommercial Nature of Educ. Broad. Stations, 90
F.C.C.2d 895, 900 (1982). There is no explicit discussion of
these past decisions in the 2001 Order. Instead, the Commis-
sion focused on whether subscription television falls within
the statutory definition of ‘‘broadcasting.’’ 2001 Order, 16
F.C.C.R. at 19,052–56. Nevertheless, the Commission ade-
quately set forth the ‘‘multiple channel’’ analysis relied on in
its briefs.
In the 2001 Order the Commission stated that ‘‘digital
technology will allow sufficient capacity for public television
stations to offer a range of services while preserving their
primary use for a nonprofit, noncommercial, educational
 11

broadcast service.’’ Id. at 19,049. The Commission had
discussed more broadly in the NPRM the capacity for digital
broadcasters to provide multiple channels, referring to the
Fifth Report and Order. 14 F.C.C.R. at 539–40. Further,
the entire proceeding arose in the context of the digital
television rulemaking where the Commission had stated that
it would only allow ancillary and supplemental services such
as subscription television to the extent that licensees contin-
ued to offer free broadcasting to the public. 2001 Order, 16
F.C.C.R. at 19,049. For public broadcasting, this will mean
that licensees must provide at least one noncommercial free
broadcasting service at all times. Id. Hence, the Commis-
sion adequately articulated the ‘‘multiple channel’’ argument
in the 2001 Order, and to the extent that the UCC’s position
against allowing advertising is that advertising-supported ser-
vices will completely supplant noncommercial services provid-
ed by noncommercial licensees, the Commission’s reasoning is
sufficient.
A separate question is whether advertising on subscription
television is so pernicious to public broadcasting that it should
not be allowed at all, as appeared to be the Commission’s
position in the 1950s. The Commission’s position to some
extent softened, as it recognized, in the 1980s once Congress
authorized public broadcasters to offer services and facilities
for remuneration other than advertising. See NPRM, 14
F.C.C.R. at 547–48. And, in the 2001 Order the Commission
considered the tradeoff between allowing public broadcasters
greater flexibility to obtain money to pay for the transition to
digital broadcasting and the risk that ‘‘allowing [public broad-
casters] to provide advertiser-supported services will deni-
grate the noncommercial nature of the public television sys-
tem.’’ 16 F.C.C.R. at 19,055 (footnote omitted); see also id.
at 19,049. The Commission recognized in the NPRM that, on
the one hand, ‘‘the costs of converting to digital service will be
considerable,’’ while, on the other hand, it was ‘‘sensitive to
the concerns raised TTT that in permitting [noncommercial
public television stations] flexibility in providing [a range of
revenue-generating ancillary or supplementary services] we
must be consistent with Section 399b and also not undermine
 12

their fundamental mission of providing a noncommerical edu-
cational broadcast service.’’ 14 F.C.C.R. at 546. The Com-
mission explained in the 2001 Order that the requirements
that public broadcasters maintain free over-the-air service
with no advertising and that the broadcasters use their
spectrum primarily for noncommercial uses, as well as the
restrictions on licensees as non-profits, tax requirements, and
oversight by other bodies, reduced the risk that the very
limited advertising allowed under the new rule would funda-
mentally undermine the noncommercial nature of the public
broadcasting system. 16 F.C.C.R. at 19,055; see also id. at
19,049; NPRM, 14 F.C.C.R. at 548–49. The Commission
reserved the right to take additional action if these con-
straints were inadequate. 2001 Order, 16 F.C.C.R. at 19,055–
56. Consequently, although the Commission never explicitly
addressed its decisions in the 1950s or 1980s, it addressed the
concerns raised in those decisions and adequately explained
its change in position.
Further, the Commission properly addressed its prior rule
that only allowed subscription television transmission by non-
commercial licensees on a case-by-case basis. There is no
merit to the Commission’s contention that the UCC waived
this issue; during Commission proceedings, it commented on
February 16, 1999, ‘‘At [the] time of the Subscription Video
decision, noncommercial licensees did not have the authority
to provide such services, and they still do not today. See
Amendment of Part 73.642(a) of the Commission’s Rules, 97
F.C.C.2d 411 (1984).’’ But the UCC’s contention that the
Commission deviated from its 1984 decision misconstrues that
decision as concluding that the provision of subscription video
services would in all cases interfere with the station’s ability
to offer educational programming. The 1984 decision did not
completely ban subscription television service by public
broadcasters but instead required them to obtain waivers to
provide the service. In re Amendment of Part 73.642(a) of
the Comm’n’s Rules Concerning Subscription Television Au-
thorization for Noncommercial Educ. Television Station Li-
censees, 97 F.C.C.2d 411, 411 (1984). In that proceeding, the
Commission rejected a proposal to allow blanket subscription
 13

television provision by public broadcasters because, while
‘‘there are benefits to be derived from using [subscription
television] as a supplementary fundraising device,’’ the Com-
mission concluded that ‘‘these benefits are diminished by
changing the system to one which could be dominated by’’
subscription television. Id. at 413.
The ‘‘multiple channel’’ rationale raised by the Commission
in general, and the requirement that public broadcasters use
their spectrum primarily for television broadcasts, undercuts
the concerns expressed in the 1984 decision. The Commis-
sion could appropriately conclude that the multiple channels
of digital television combined with the requirement that non-
commercial, educational broadcasting be the primary use of
television facilities would prevent the wholesale conversion of
public broadcasting to subscription television and would ame-
liorate the concerns expressed in 1984. Although in the 2001
Order the Commission did not formally address its 1984
concerns even as it amended § 73.642 of its regulations, 16
F.C.C.R. at 19,049–50, the Commission noted in the NPRM
that its 1984 decision had been made in the context of
television ‘‘operating with analog technology,’’ where sub-
scription television might supplant free public broadcasting.
14 F.C.C.R. at 547. The Commission distinguished its prior
subscription television decision by stating that the instant
proceeding ‘‘concerns digital television, which offers signifi-
cant new challenges and opportunities to’’ public broadcast-
ers. Id. at 548. All this occurred in the context of a
rulemaking proceeding where multiple channels would be
available to digital broadcasters. See id. at 539; 2001 Order,
16 F.C.C.R. at 19,043 n.4. In light of the limited and
conclusory nature of the UCC’s comments on this point,
Reytblatt v. United States Nuclear Regulatory Comm’n, 105
F.3d 715, 722 (D.C. Cir. 1997), the discussion in the NPRM,
the fact that the Commission’s discussion in the 2001 Order of
the ‘‘multiple channel’’ argument immediately preceded its
amendment of § 73.642, see 2001 Order, 16 F.C.C.R. at
19,049, and the fact that the Commission allowed subscription
television only on ‘‘excess digital capacity’’ such that the fear
of displacement of free public broadcasting would not apply,
 14

see id. at 19,042, 19,049–50, particularly given the require-
ment that noncommercial licensees are required to maintain
one free over-the-air video programming service, id. at
19,049, we conclude that the Commission adequately both
developed its ‘‘multiple channel’’ distinction and addressed its
prior decisions. To the extent that the UCC also challenges
the permissibility of leasing spectrum for advertising-
supported subscription television, it raises the same issue as
direct use of the spectrum for that purpose, and hence, in
light of our disposition, there is no need to decide whether the
UCC properly raised its leasing challenge in ex parte com-
ments.
Accordingly, we deny the petition for review.