Radio Communications Corporation v. Federal Communications Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2024 Decided June 27, 2025
No. 24-1004
R ADIO C OMMUNICATIONS C ORPORATION ,
P ETITIONER
v.
FEDERAL C OMMUNICATIONS C OMMISSION AND U NITED
S TATES OF AMERICA,
R ESPONDENTS
On Petition for Review of an Order of
the Federal Communications Commission
Timothy E. Welch argued the cause and filed the briefs for
petitioner.
Adam Sorensen, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on
the brief were Daniel E. Haar and Robert B. Nicholson,
Attorneys, U.S. Department of Justice, Jacob M. Lewis, Deputy
General Counsel, Federal Communication Commission, and
Sarah E. Citrin, Deputy Associate General Counsel. Alice A.
Wang, Attorney, U.S. Department of Justice, entered an
appearance.

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Before: KATSAS and C HILDS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: Radio Communications
Corporation (“RCC”), a telecommunications and media
company, petitions for review of a final order issued by the
Federal Communications Commission (“FCC” or the
“Commission”) implementing the Low Power Protection Act
(“LPPA”), Pub. L. No. 117-344, 136 Stat. 6193 (2023). The
LPPA provides low power television (“LPTV”) stations with
an opportunity to apply for an upgrade to a Class A license if
they meet certain criteria. See LPPA § 2. To be eligible, a
LPTV station must “operate[] in a Designated Market Area
with not more than 95,000 television households.” Id. §
2(c)(2)(B)(iii). A Designated Market Area (“DMA”) means
either “(A) a Designated Market Area determined by Nielsen
Media Research or any successor entity; or (B) a Designated
Market Area . . . using a system that the Commission
determines is equivalent to the system established by Nielsen
Media Research.” Id. § 2(a)(2). Pursuant to the LPPA, the FCC
issued an Order which, inter alia, adopted the statute’s “95,000
television households” limitation for a DMA and confirmed
that the Commission would use Nielsen’s Local TV Report – a
collection of data on local television markets – to determine a
station’s DMA. In the Matter of Implementation of the Low
Power Protection Act, 38 FCC Rcd. 12627 (2023) (“Order”).
Petitioner RCC operates a LPTV station, W24EZ-D, in
Connecticut. On January 10, 2024, RCC challenged the Order
as unlawful. RCC’s primary argument focuses on the LPPA’s
size limitation for Class A license eligibility, i.e., the station
must operate in a DMA with not more than 95,000 television

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households. RCC argues that the size limitation applies to a
station’s “community of license,” not its DMA. A station’s
“community of license” is the community that the station is
licensed to serve under section 307(b) of the Communications
Act of 1934, 47 U.S.C. § 151 et seq., a separate but related
statute. RCC’s station, for example, is licensed to serve
Allingtown, a neighborhood of West Haven, Connecticut,
which has fewer than 15,000 television households. However,
RCC’s station is a part of the Hartford-New Haven DMA
which has approximately one million television households.
Thus, under RCC’s reading of the LPPA, its station satisfies
the LPPA’s size requirement, whereas under the Order, it does
not.
RCC also raises a host of other statutory and constitutional
arguments. It maintains that the Order contravenes section
307(b) of the Communications Act which, RCC contends,
mandates nationwide Class A licensing. RCC also claims that
the Order is unconstitutional because it (1) impermissibly
regulates local economic activity in violation of the Commerce
Clause; (2) impermissibly delegates legislative authority to a
private party, Nielsen; and (3) impermissibly restricts a Class
A license applicant’s programming content as part of its
requirements for Class A eligibility in violation of the First
Amendment. Lastly, RCC argues that the Order is unlawful
because it does not extend “must carry rights” – the
requirement that cable systems carry certain television stations
– to Class A licensees.
We are unpersuaded by RCC’s arguments. The FCC’s
Order adheres to the best reading of the statute: A LPTV station
must operate in a DMA with not more than 95,000 television
stations to be eligible for a Class A license. The agency
properly defined DMA according to Nielsen’s data, as
expressly authorized by Congress. Nowhere in the statute does

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Congress reference “community of license,” nor are
communities of license equivalent systems to DMAs such that
they can be adopted for determining Class A eligibility. See
LPPA § 2(a)(2). Rather, the two metrics serve distinct purposes
– a “community of license” determines area of license and a
DMA determines area of Class A eligibility. Thus, by the terms
of the statute, and as implemented by the Order, RCC’s station
is not eligible for Class A status because it operates in a DMA
– the Hartford-New Haven DMA – with more than 95,000
television households. This reading of the statute is consistent
with section 307(b) of the Communications Act, and it runs
afoul of neither the commerce clause nor the nondelegation
doctrine.
Finally, because RCC is ineligible for a Class A license
based on the DMA size requirement, we need not consider
RCC’s separate argument regarding the constitutionality of the
FCC’s local programming requirements, nor RCC’s argument
that the FCC improperly denied must carry rights to Class A
licensees. A favorable holding on either issue would not render
RCC’s station eligible for a Class A license.
Accordingly, we deny RCC’s petition for review.
I. Background
A. Statutory Background
The FCC is governed by the Communications Act of 1934.
See 47 U.S.C. § 151 et seq. The Act endows the Commission
with broad licensing and regulatory authority, and its purpose
is to provide “a unified and comprehensive regulatory system
for the [broadcasting] industry.” FCC v. Pottsville Broad. Co.,
309 U.S. 134, 137 (1940). As relevant here, section 307(b) of
the Act provides, in pertinent part:

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In considering applications for licenses . . . when and
insofar as there is demand for the same, the
Commission shall make such distribution of licenses,
frequencies, hours of operation, and of power among
the several States and communities as to provide a
fair, efficient, and equitable distribution of radio
service to each of the same.
47 U.S.C. § 307(b).
As may be seen, this provision generally directs the FCC
to distribute broadcast resources in a fair, efficient, and
equitable manner. See, e.g., New Radio Corp. v. FCC, 804 F.2d
756, 757 (D.C. Cir. 1986) (“[W]here two or more mutually
exclusive applicants have specified different communities of
license, the FCC must determine the relative need [of] each
applicant’s proposed service area.”). As relevant here, this
provision relies on a concept, “community of license,” which
refers to “the community that [a] station is licensed to serve”
under the statute. ADX Commc’ns of Pensacola v. FCC, 794
F.3d 74, 77 (D.C. Cir. 2015).
In 1982, the FCC began licensing LPTV stations to expand
service in unserved and underserved areas. See Order, 38 FCC
Rcd. at 12628 ¶ 2. Whereas full power television stations
provide service to viewers located in larger service areas,
LPTV stations broadcast service at a low transmitter power
output and provide television service to viewers in smaller
geographic areas. Because they operate at reduced power
levels, LPTV stations can be fit into areas where a higher power
station cannot be accommodated. See id. at 12628 ¶ 3.
From its inception, low power television service has been
restricted to secondary priority, meaning that LPTV stations

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“may not cause interference to, and must accept interference
from, full power television stations.” Id. at 12628 ¶ 2. “As a
result of their secondary status, LPTV stations can also be
displaced by full power stations that seek to expand their
service area, or by new full power stations seeking to enter the
same area as an LPTV station.” Id. at 12628 ¶ 2 n.5.
In the Community Broadcasters Protection Act of 1999,
Congress directed the FCC to create a set of Class A television
licenses, which protect LPTV stations from the interference of
full power stations. See Pub. L. No. 106-113, § 5008, 113 Stat.
1501 (1990). To obtain a Class A license under the Community
Broadcasters Protection Act, LPTV stations had to meet certain
criteria and apply for a license within a set time frame. See id.
In January 2023, Congress enacted the LPPA, which like
the Community Broadcasters Protection Act before it, provides
LPTV stations with an opportunity to apply for Class A
licenses if they meet certain eligibility criteria. See LPPA §
2(c)(2)(B). As relevant here, the LPPA authorizes the
Commission to approve Class A license applications only from
LPTV stations that, “as of the date of enactment of [the LPPA],
operate[] in a Designated Market Area with not more than
95,000 television households.” Id. § 2(c)(2)(B)(iii). The LPPA
states that a “Designated Market Area” means either “(A) a
Designated Market Area determined by Nielsen Media
Research or any successor entity; or (B) a Designated Market
Area under a system of dividing television broadcast station
licensees into local markets using a system that the
Commission determines is equivalent to the system established
by Nielsen Media Research.” Id. § 2(a)(2). Eligible LPTV
stations must apply for a Class A license within a year of the
date when the FCC’s rule implementing the LPPA becomes
effective. Id. § 2(c)(2)(A).

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B. Factual and Procedural History
On December 12, 2023, the FCC issued the Order, which
implements the LPPA by, inter alia, setting the specific criteria
pursuant to which LPTV stations qualify for Class A licenses.
As relevant here, the Order adopted the language of the 95,000-
size limitation verbatim. Order, 38 FCC Rcd. at 12643-44 ¶¶
33-34, 12647 ¶ 38. It also provides that the FCC will use
Nielsen’s Local TV Report – a collection of data on local
television markets – to determine a station’s DMA. Id. at 12644
¶ 35. In choosing to use Nielsen’s data to determine a LPTV
station’s DMA, the FCC reasoned in the Order that this
approach was fully consistent with the LPPA which
contemplates the use of Nielsen. Id. The FCC also reasoned
that RCC’s proposed alternative – the community of license
system – was not “equivalent” to the system established by
Nielsen, which defines larger geographic regions than
community of license, and thus would contravene the statute’s
plain command to use Nielsen DMAs or an equivalent system.
Id. at 12648-49 ¶ 40 (quoting LPPA § 2(a)(2)(B)). The Order
also requires that Class A license applicants carry a certain
amount of “locally produced programming” in the ninety days
preceding the statute’s effective date to be eligible for the Class
A status upgrade. See Order, 38 FCC Rcd. at 12635 ¶¶ 18-19;
LPPA § 2(c)(2)(B)(i)(I).
The choice between a DMA and a community of license
for determining eligibility makes a difference for RCC’s
station, W24EZ-D. RCC’s station is licensed to serve
Allingtown, a neighborhood of West Haven, Connecticut,
which has fewer than 15,000 television households. However,
RCC’s station is part of the Hartford-New Haven DMA which
has approximately one million television households, far
exceeding the 95,000-households statutory limit. Thus, under

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the FCC’s reading of the LPPA, RCC’s station is ineligible for
a Class A license.
RCC submitted comments during the FCC’s rulemaking
proceedings opposing parts of the FCC’s proposed rule, which
were ultimately adopted in the Order. For instance, RCC
argued that determining Class A license eligibility based on
Nielsen’s data was “nonsensical” because 177 out of the 210
DMAs in Nielsen’s Local TV Report had more than 95,000
television households; thus, most LPTV stations in the country
would not qualify for Class A licenses. See Order, 38 FCC Rcd.
at 12647 ¶ 38. In rejecting RCC’s argument that using
Nielsen’s data unduly restricted the number of LPTV stations
that would qualify for Class A licenses, the FCC stated in the
Order that “Congress clearly intended that eligibility under the
LPPA be limited, as the Act expressly provides that eligibility
is limited to DMAs with no more than 95,000 TV households.”
Id. FCC maintains that its rule is consistent with Congress’s
instructions, as set out in the LPPA.
On January 10, 2024, RCC filed a timely petition for
review of the Order. See 47 U.S.C. § 402(c).
II. ANALYSIS
A. Standard of Review
Under the Administrative Procedure Act (“APA”), we will
hold unlawful and set aside final agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). In determining
whether an agency’s interpretation of its governing statute is
contrary to law, we must exercise our “independent judgment”
and “apply[] all relevant interpretive tools” to reach “the best
reading of the statute.” Loper Bright Enters. v. Raimondo, 603

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U.S. 369, 394, 400 (2024). Congress may “confer discretionary
authority on agencies . . . subject to constitutional limits.” Id.
at 404. “[T]o stay out of discretionary policymaking left to the
political branches, [reviewing courts] need only fulfill their
obligations under the APA to independently identify and
respect such delegations of authority, police the outer statutory
boundaries of those delegations, and ensure that agencies
exercise their discretion consistent with the APA.” Id.
B. Standing
To establish Article III standing, a plaintiff must show (1)
injury in fact that is concrete and particularized and actual or
imminent rather than conjectural or hypothetical, (2) causation
fairly traceable to the defendant’s challenged action and (3)
redressability by a favorable decision that is likely as opposed
to merely speculative. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992).
RCC has Article III standing to challenge the Order’s size
limitation for Class A eligibility. RCC is the holder of a LPTV
broadcast license which is “directly and adversely affected” by
the Commission’s eligibility rules as set out in the Order.
Viasat, Inc. v. FCC, 47 F.4th 769, 781 (D.C. Cir. 2022)
(internal quotation marks and citation omitted). Specifically,
FCC’s interpretation and implementation of LPPA section
2(c)(2)(B)(iii) renders RCC ineligible to receive a Class A
license upgrade. Such an upgrade comes with substantial
economic benefits, including protection from the interference
of full power stations. The Order’s denial of these economic
benefits to RCC by the terms of its rules can be remedied by a
favorable ruling from this court regarding the legality of the
Order.

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C. Class A License Eligibility
The LPPA’s plain text is clear. It sets specific eligibility
criteria for LPTV stations seeking Class A status: “The
Commission may approve an application . . . if the low power
TV station submitting the application . . . satisfies” the listed
requirements, including that, at the time of enactment, it
“operates in a Designated Market Area with not more than
95,000 television households.” LPPA § 2(c)(2)(B). RCC’s
station operates in a Designated Market Area – the Hartford-
New Haven DMA – with more than 95,000 TV households.
Thus, by the clear terms of the statute, RCC’s station is
ineligible for a Class A license.
Yet, RCC argues that the statute’s limitation of “95,000
television households” refers to a station’s community of
license, and not to the number of households in the station’s
DMA. In other words, RCC reads the operative text as
requiring the eligible LPTV station (1) to “operate in a DMA”
of any size and (2) to service a community of license “with not
more than 95,000 television households.” Unlike “Designated
Market Area,” however, “community of license” appears
nowhere in the eligibility requirements or the LPPA. Instead,
RCC seeks to import “community of license” from section
307(b) of the Communications Act. RCC’s convoluted reading
of these statutory provisions is plainly incorrect.
“As with all questions of statutory interpretation, we start
with the text.” Pharm. Mfg. Rsch. Servs., Inc. v. FDA, 957 F.3d
254, 260 (D.C. Cir. 2020). The phrase “95,000 television
households” modifies the immediately preceding “Designated
Market Area,” not the phrase “community of license,” which
appears nowhere in the LPPA, nor the phrase “the low power
TV station submitting the application,” which appears much
earlier in the statute. See Lockhart v. United States, 577 U.S.

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347, 351 (2016) (“[A] limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it
immediately follows.” (citations omitted)).
RCC’s alternative reading of the statute – pursuant to
which “95,000 television households” modifies the community
that the station is licensed to serve – would render the
Designated Market Area language nearly superfluous. See Pub.
Citizen, Inc. v. Rubber Mfrs. Ass’n, 533 F.3d 810, 816 (D.C.
Cir. 2008) (explaining that courts should “if possible, . . .
construe a statute so as to give effect to every clause and word”
(cleaned up)). Every television station located in the lower 48
states falls within one of Nielsen’s DMAs. Thus, under RCC’s
reading of the LPPA, the statute’s requirement that a station
applying for a Class A license fall within a DMA would serve
no purpose. The best reading of the statute, giving effect to
every clause and word, is that Class A license eligibility is
limited by the size of a station’s DMA.
Moreover, we have no reason to believe that Congress
intended for the FCC to adopt an alternative community of
license metric, found in a different statute, when it specifically
provided and defined, in the operative statute, the geographic
metric to be used in determining Class A eligibility:
“Designated Market Area determined by Nielsen Media
Research” or some “equivalent.” LPPA § 2(a)(2); see also
Rawat v. Comm’r, 108 F.4th 891, 895 (D.C. Cir. 2024)
(“Statutory definitions are virtually conclusive of statutory
meaning.” (internal quotation marks and citation omitted)).
Where Congress did intend to rely on the Communications Act,
such as by incorporating some of its requirements, Congress
referenced that statute and specific, relevant provisions
explicitly. See LPPA § 2(c)(2)(B)(i)-(ii). When discussing the
size limitation, however, Congress made no mention of the
Communications Act, referring only to “Designated Market

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Area,” which it had defined earlier, instead. Id.
§ 2(c)(2)(B)(iii).
Furthermore, although the LPPA does authorize the
agency to adopt an alternative system, that system must be
equivalent to the one defined by reference to Nielsen’s data.
See id. § 2(a)(2)(B). Section 307(b)’s “community of license”
does not provide for an equivalent system, as RCC itself
recognizes, and thus was not a viable option for the FCC to
adopt. See Pet’r’s Final Br. 13 (describing Nielsen’s DMA as
much “larger geographic regions” than section 307(b)’s
community of license); see also Order, 38 FCC Rcd. at 12648-
49 ¶ 40 (quoting LPPA § 2(a)(2)(B)).
Unable to account for the statute’s plain text, RCC turns to
the statute’s purpose. RCC argues that the Commission’s
interpretation of the LPPA to restrict Class A licenses to only
certain LPTV stations conflicts with the statute’s general
purpose, which RCC argues is to protect LPTV stations
nationwide. RCC significantly overreads the LPPA’s purpose.
The LPPA does not provide unbounded protection for LPTV
stations. Rather, its purpose is to provide LPTV stations “with
a limited window of opportunity to apply for” Class A licenses.
LPPA § 2(b). Moreover, by setting out specific eligibility
criteria, Congress clearly did not intend for any and all LPTV
stations to benefit from the statute – only those that meet the
statutory requirements. In any event, even if RCC is correct that
a larger purpose of the statute is to expand Class A licensing as
broadly as possible across the nation, “the statute’s larger
purpose alone does not warrant departing from the [statute’s]
text.” Eagle Pharms., Inc. v. Azar, 952 F.3d 323, 334 (D.C. Cir.
2020).
Thus, with no support in the LPPA for its position, RCC
turns to the separate but related Communications Act. RCC

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reads section 307(b) of the Act as mandating nationwide Class
A licensing. That provision, however, does not support RCC’s
reading. Section 307(b) generally “empowers the Commission
to allow licenses so as to provide a fair distribution among
communities.” FCC v. Allentown Broad. Corp., 349 U.S. 358,
362 (1955). It also directs the Commission to evaluate fair
distribution of broadcast resources in certain circumstances –
for example, “[w]hen multiple applicants seek mutually
exclusive licenses to operate a noncommercial educational . . .
radio station.” Mary V. Harris Found. v. FCC, 776 F.3d 21, 22
(D.C. Cir. 2015). Section 307(b) does not specifically address
LPTV stations, let alone guarantee Class A status to LPTV
stations on a nationwide basis. Rather, in pursuing section
307(b)’s general aims, the Commission is bound by the express
limitations set out in the LPPA: to restrict Class A eligibility
by the size of a station’s DMA, defined according to Nielsen’s
data. Nothing in the general language of section 307(b) requires
the Commission to override this clear instruction from
Congress.
RCC also argues that the Order “effectively reassigns . . .
LPTV licenses . . . from their small Section 307(b)
communities of license to much larger . . . DMAs.” Pet’r’s
Final Br. 10. This argument is without merit. As the FCC
explained, the use of DMAs to determine Class A eligibility is
wholly unrelated to the concept of communities of license
under section 307(b). See Order, 38 FCC Rcd. at 12649 ¶ 40
n.187 (rejecting RCC’s reassignment argument because “[the
Commission’s] decision . . . relates only to implementation of
the LPPA, and does not affect the communities LPTV stations
are licensed to serve”). In other words, how the Commission
defines a station’s DMA for the purpose of Class A eligibility
does not affect the station’s area of licensing or otherwise alter
its LPTV license. The two provisions and the two statutes are
distinct.

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RCC also challenges the FCC’s interpretation of the LPPA
as inadequately explained. This claim fails because the
interpretation is legally compelled: The challenged provisions
of the Order are a direct implementation of the statutory text.
Moreover, the Commission explained, by reference to the
statute, why it limited Class A eligibility to LPTV stations in
DMAs with no more than 95,000 TV households. See id. at
12643-44 ¶¶ 33-34. The Commission also considered
alternative systems for demarcating local markets and found
that they raised a variety of issues or were not equivalent to
Nielsen’s DMAs and, thus, could not be used. See id. at 12644-
49 ¶¶ 35-40. The Commission’s explanation of its decision-
making was thus more than adequate.
More generally, RCC suggests that the Commission failed
to respond to all of its arguments raised in comments. We
disagree. On the record before it, the Commission provided
ample substantive reasons for rejecting the principal arguments
that RCC raised. See, e.g., id. at 12647-49 ¶¶ 38-40. Any
“failure to respond to comments is significant only insofar as it
demonstrates that the agency’s decision was not based on a
consideration of the relevant factors.” Thompson v. Clark, 741
F.2d 401, 409 (D.C. Cir. 1984) (internal quotation marks and
citation omitted). No such concern exists in this case.
With respect to the constitutional issues raised by RCC,
those matters have been raised with this court and are addressed
in this opinion. See Loper Bright, 603 U.S. at 391 (emphasizing
that it is the role of “the reviewing court” to “interpret
constitutional . . . provisions”); Oestereich v. Selective Serv.
Sys. Local Bd. No. 11, 393 U.S. 233, 242 (1968) (Harlan, J.,
concurring in result) (“Adjudication of the constitutionality of
congressional enactments has generally been thought beyond
the jurisdiction of administrative agencies.”).

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Lastly, RCC raises a variety of concerns that ultimately
amount to policy disagreements. For example, RCC complains
that restricting eligibility based on DMAs would “deny Class
A licenses covering more than 98% of the Nation’s
population.” Pet’r’s Final Br. 38-39. However, as the agency
explained, “while 98 percent of television households may fall
outside eligible Designated Market Areas, 33 out of 210
Designated Market Areas fall within the statute’s 95,000
television household threshold.” Br. for Resp’ts 25. The LPPA
concerns LPTV stations that service small areas with low
populations and, thus, by its terms excludes huge swaths of this
nation’s population from its scope. Congress also further
limited upgrades under the LPPA to stations in certain areas
within that universe of small geographic regions, further
reducing the number of households affected. To the extent
RCC is dissatisfied with this arrangement, its concerns are
better levied at Congress, which set out the eligibility
requirements, than at the Commission, which faithfully
executed them.
D. Constitutional Challenges
RCC argues that the FCC interpreted the LPPA in an
unconstitutional manner as (1) regulating local economic
activity beyond the scope of the interstate commerce clause and
as (2) delegating legislative authority to a private, non-
governmental entity, Nielsen. Accordingly, RCC asks this
court to adopt its reading of the statute in order to avoid these
alleged constitutional issues. We decline to do so because the
agency’s reading of the statute is entirely consistent with the
statute, which raises no such constitutional concerns.
As discussed above, the plain language of the LPPA
compels the agency’s interpretation. RCC does not separately

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challenge the LPPA itself as unconstitutional. However,
because the statute and the agency’s interpretation are
effectively indistinguishable, RCC’s constitutional challenges
are ultimately about the statute and whether its regulatory
scheme runs afoul of the commerce clause or nondelegation
doctrine. We find that it does not.
First, in enacting the LPPA, Congress acted well within its
power to regulate commerce. The Supreme Court “ha[s] long
recognized that Congress, acting pursuant to the Commerce
Clause, has power to regulate the use of” broadcast
communications, including television broadcasting. FCC v.
League of Women Voters of Cal., 468 U.S. 364, 376 (1984). A
feature of broadcasting is that it crosses state lines, and in
approving specific local stations for status upgrades, Congress
is acting to regulate the interstate broadcast market more
broadly, not just local activity. Moreover, Congress has the
power to regulate local activity that, when aggregated with
similar activities of others, has a substantial effect on interstate
commerce. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 549 (2012); United States v. Sullivan, 451 F.3d 884, 888
(D.C. Cir. 2006). The local activity at issue in this case belongs
to an economic class of activities – television broadcasting –
that has a substantial effect on interstate commerce, making it
wholly within the scope of Congress’s legislative power.
Second, RCC’s argument that the “DMA market structure
. . . is unconstitutional” because it “improperly delegates
legislative authority to a private, non-governmental entity” is
without merit. Pet’r’s Final Br. 42. Neither Congress nor the
FCC delegated legislative authority to Nielsen by defining the
phrase “Designated Market Area” by reference to that private
company’s system of designating television markets. The
LPPA and the Order merely refer to and incorporate Nielsen’s
data for the limited purpose of determining a Class A license

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applicant’s DMA at a single moment in time. Our case law
suggests that agencies are free to rely on private entities to
provide factual information. See U.S. Telecom Ass’n v. FCC,
359 F.3d 554, 567 (D.C. Cir. 2004) (“[A] federal agency may
use an outside entity, such as a . . . private contractor, to provide
the agency with factual information.”); see also Am. Soc’y for
Testing & Materials v. Public.Resource.Org, Inc., 82 F.4th
1262, 1265 (D.C. Cir. 2023) (recognizing that “agencies may
incorporate privately developed standards into law by
referencing them in agency rulemaking”). And the
Commission has “long relied on Nielsen DMA data to define
television markets,” Order, 38 FCC Rcd. at 12644 ¶ 35, in part
because Nielsen’s market assignments “provide the most
accurate method for determining the areas served by local
stations,” In the Matter of Definition of Markets for Purposes
of the Cable Television Mandatory Television Broadcast
Signal Carriage Rules, 11 FCC Rcd. 6201, 6220 ¶ 39 (1996).
Doing so here at Congress’s direction violated no constitutional
principle.
To conclude, we find no daylight between the agency’s
Order and the text of the statute. Thus, by challenging the
agency’s interpretation of the statute as unconstitutional, RCC
is effectively challenging the constitutionality of the statute.
We find these challenges to be without merit.
E. Final Considerations
Because RCC is ineligible for a Class A license based on
the DMA size requirement, we need not consider RCC’s
separate argument regarding the constitutionality of the FCC’s
local programming requirements, nor RCC’s argument that the
FCC improperly denied must carry rights to Class A licensees.

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First, the local programming requirements present a
separate and additional hurdle to a Class A license upgrade.
RCC’s station has already failed at the first hurdle – the DMA
size requirement – and, thus, we have no need to rule on the
next hurdle, particularly when it raises a constitutional
question. See Syracuse Peace Council v. FCC, 867 F.2d 654,
657 (D.C. Cir. 1989) (“[I]t is an elementary canon that
American courts are not to ‘pass upon a constitutional question
. . . if there is also present some other ground upon which the
case may be disposed of.’” (alteration in original) (citation
omitted)); see also Saga Broad. Corp. v. FCC, 38 F. App’x 8,
11 (D.C. Cir. 2002) (“[I]f the Maryland stations are ineligible
for Class A status regardless [of] whether the challenged
requirements are vacated, then a decision in [petitioner’s] favor
will not redress the harm of which he complains.”).
Second, even if we were to require the FCC to extend must
carry rights to Class A licensees, RCC’s station would be
ineligible to receive such rights because it is ineligible for a
Class A license. RCC thus lacks standing to bring a challenge
to the agency’s position on must carry rights.
III. CONCLUSION
For the foregoing reasons, we deny the petition for review.
So ordered.

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