National Association v. FCC , 789 F.3d 165 ( 2015 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued March 12, 2015                 Decided June 12, 2015
    No. 14-1154
    NATIONAL ASSOCIATION OF BROADCASTERS,
    PETITIONER
    v.
    FEDERAL COMMUNICATIONS COMMISSION AND UNITED
    STATES OF AMERICA,
    RESPONDENTS
    CTIA - THE WIRELESS ASSOCIATION, ET AL.,
    INTERVENORS
    Consolidated with 14-1179, 14-1218
    On Petitions for Review of Orders of
    the Federal Communications Commission
    Miguel A. Estrada argued the cause for petitioner
    National Association of Broadcasters. John K. Hane argued
    the cause for petitioner Sinclair Broadcast Group, Inc. With
    them on the joint briefs were Lucas C. Townsend, Ashley S.
    Boizelle, Rick Kaplan, Jerianne Timmerman, Jeetander T.
    Dulani, and Cynthia Cook Robertson.             Clifford M.
    Harrington, Thomas G. Allen, and Jane E. Mago entered
    appearances.
    2
    Jacob M. Lewis, Associate General Counsel, Federal
    Communications Commission, argued the cause for
    respondents. With him on the brief were William J. Baer,
    Assistant Attorney General, U.S. Department of Justice,
    Robert J. Wiggers and Kristen C. Limarzi, Attorneys,
    Jonathan    B.    Sallet,   General     Counsel,   Federal
    Communications Commission, David M. Gossett, Deputy
    General Counsel, and C. Grey Pash Jr., Counsel. Richard K.
    Welch, Deputy Associate General Counsel, Federal
    Communications Commission, entered an appearance.
    Dominic F. Perella argued the cause for intervenors
    CTIA - The Wireless Association, et al. in support of
    respondents. With him on the brief were Michael K. Kellogg,
    Scott H. Angstreich, Catherine E. Stetson, Elizabeth Austin
    Bonner, Michael Altschul, Rebecca M. Thompson, and Julie
    M. Kearney.
    Preston R. Padden and Daniel M. Armstrong were on the
    brief for intervenor Expanding Opportunities for Broadcasters
    Coalition in support of respondents.
    Before: HENDERSON and SRINIVASAN, Circuit Judges,
    and SENTELLE, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge SRINIVASAN.
    SRINIVASAN, Circuit Judge: This case arises out of the
    Federal Communications Commission’s rulemaking under
    Title VI of the Middle Class Tax Relief and Job Creation Act
    of 2012, Pub. L. No. 112-96, 126 Stat. 156, known as the
    Spectrum Act. In recognition of the changing needs of
    American consumers, the Spectrum Act authorizes the FCC to
    shift a portion of the licensed airwaves from over-the-air
    television broadcasters to mobile broadband providers. The
    3
    Act directs the Commission to carry out the objective of
    repurposing spectrum through three interdependent initiatives:
    (i) a reverse auction to determine the prices at which
    broadcasters would voluntarily sell their spectrum rights; (ii) a
    reassignment of broadcasters who wish to retain their rights to
    new channels in a smaller band of spectrum; and (iii) a
    forward auction to sell the blocks of newly available spectrum
    to wireless providers, with the proceeds used to compensate
    broadcasters who voluntarily relinquished their spectrum
    rights and to pay the relocation expenses of broadcasters
    reassigned to new channels.
    After the FCC adopted rules setting forth its framework
    for the incentive auction and channel-reassignment process,
    members of the television broadcast industry filed petitions
    for review of the Commission’s orders in this court.
    Petitioners argue that certain Commission decisions
    announced in the orders conflict with the Spectrum Act or are
    otherwise arbitrary and capricious. We deny the petitions for
    review and sustain the Commission’s orders.
    I.
    Nearly two-thirds of American adults now own a
    smartphone. Aaron Smith et al., Pew Research Ctr., U.S.
    Smartphone Use in 2015, at 2 (2015), available at
    http://www.pewinternet.org/files/2015/03/PI_Smartphones_0
    401151.pdf. For that and related reasons, the use of wireless
    networks in the United States is “skyrocketing, dramatically
    increasing demands on both licensed and unlicensed
    spectrum—the invisible infrastructure on which all wireless
    networks depend.” In the Matter of Expanding the Economic
    & Innovation Opportunities of Spectrum Through Incentive
    Auctions, 27 FCC Rcd. 12,357, ¶ 1 (2012) (NPRM). The FCC
    warns that the country “faces a major challenge to ensure that
    4
    the speed, capacity, and accessibility of our wireless networks
    keeps pace with these demands in the years ahead.” 
    Id. Broadcast television
    currently occupies an important
    portion of radiofrequency spectrum. Resp’ts’ Br. 5; see
    NPRM, ¶ 12 & n.12.           Approximately 8,400 broadcast
    television stations provide service in the very-high frequency
    (VHF) and ultra-high frequency (UHF) bands, with each
    station allotted a channel covering a particular geographic
    area. Resp’ts’ Br. 5. Broadcast television stations supply free
    over-the-air programming “that is often highly responsive to
    the needs and interests of the communities they serve,”
    including local news, educational programming, and
    emergency information. NPRM, ¶ 13.
    “Although broadcast television continues to be a vital
    source of local news and information for most Americans, the
    other offerings in the video programming marketplace have
    diverted much of broadcast television’s over-the-air viewing
    audience over the years.” 
    Id. ¶ 14.
    At one time, “virtually
    all” television households received programming through an
    over-the-air signal. 
    Id. During the
    2011-2012 television
    season, however, only about 10 percent of television
    households relied solely on broadcast television for
    programming. 
    Id. In 2009,
    the broadcast television industry completed a
    congressionally mandated transition from analog to digital
    transmission (“the DTV transition”). 
    Id. ¶ 15.
    Currently,
    however, “[n]ot all broadcasters are in a position to take
    advantage of the opportunities created by the digital
    transition,” and the Commission anticipates that a significant
    number of broadcasters will struggle financially and
    eventually exit the business. 
    Id. ¶ 16.
                                   5
    In light of the state of the broadcast television industry,
    and in response to the nation’s growing need for spectrum,
    Congress, in the Spectrum Act, authorized the FCC to hold an
    incentive auction to encourage broadcasters to relinquish their
    spectrum rights in exchange for incentive payments. Middle
    Class Tax Relief and Job Creation Act, Title VI; see NPRM,
    ¶ 3. For broadcasters who decline to give up their spectrum
    rights in the reverse auction, the Act authorizes the FCC to
    undertake a “repacking” process under which it will reassign
    those broadcasters to new channels in a different (and
    smaller) band of spectrum. See NPRM, ¶ 7. Those measures
    will enable the Commission to recover a portion of the UHF
    spectrum, see 
    id. ¶ 5,
    which possesses propagation and
    penetration characteristics “especially well-suited for mobile
    broadband use,” Resp’ts’ Br. 5. The agency will then conduct
    a forward auction to offer the recovered spectrum to wireless
    carriers. See NPRM, ¶ 5.
    Those three initiatives—the reverse auction, the
    repacking process, and the forward auction—work together.
    
    Id. As the
    FCC explains in its brief, the “reverse auction
    depends on forward auction bidders’ willingness to pay and
    the forward auction depends on reverse auction bidders’
    willingness to relinquish spectrum rights in exchange for
    payments, and each of these depend on an efficient repacking
    of the spectrum used by the broadcasters that remain to clear a
    portion of the UHF band for new uses.” Resp’ts’ Br. 9.
    In October 2012, the Commission issued a Notice of
    Proposed Rulemaking to implement the measures authorized
    by the Spectrum Act. NPRM, 27 FCC Rcd. 12,357. On June
    2, 2014, after receiving extensive comments on its proposals,
    the Commission issued a 329-page Report and Order. In the
    Matter of Expanding the Economic and Innovation
    Opportunities of Spectrum Through Incentive Auctions, 29
    6
    FCC Rcd. 6567 (2014) (Order). The Order adopted rules for
    the reverse and forward auctions. The Commission also
    explained its planned implementation of the repacking
    process, including how it intended to fulfill the Spectrum
    Act’s requirement to undertake “all reasonable efforts” to
    preserve “the coverage area and population served” of
    broadcasters reassigned to new channels.           47 U.S.C.
    § 1452(b)(2). The Commission stated that it would aim to
    assure that each repacked station “serves essentially the same
    viewers that it served before the incentive auction.” Order,
    ¶ 7. Two commissioners issued statements dissenting from
    various aspects of the Commission’s Order. 
    Id. at 7038
    (dissenting statement of Commissioner Pai); 
    id. at 7048
    (dissenting statement of Commissioner O’Rielly).
    In August and September 2014, respectively, the National
    Association of Broadcasters (NAB) and Sinclair Broadcast
    Group, Inc. each filed a petition for review of the
    Commission’s Order with our court. See 47 U.S.C. § 402(a);
    28 U.S.C. §§ 2342(1), 2344. We consolidated the petitions
    and set an expedited briefing schedule pursuant to petitioners’
    request. On September 30, 2014, the Commission issued a
    Declaratory Ruling to “clarify” how it “intend[ed] to preserve
    the ‘coverage area’ as well as the ‘population served’ of
    eligible broadcasters in the repacking process,” in an effort to
    “remove any uncertainty” about its planned approach. In the
    Matter of Expanding the Economic and Innovation
    Opportunities of Spectrum Through Incentive Auctions, 29
    FCC Rcd. 12,240, ¶ 1 (2014) (Declaratory Ruling). NAB
    filed a petition for review of the Declaratory Ruling, which
    we consolidated with NAB’s and Sinclair’s original petitions.
    7
    II.
    Petitioners press a series of arguments challenging the
    Commission’s implementation of the Spectrum Act’s mandate
    to expend “all reasonable efforts” to preserve “the coverage
    area and population served” of broadcasters reassigned to new
    channels in the repacking process. 47 U.S.C. § 1452(b)(2).
    We reject petitioners’ arguments.
    A.
    Petitioners’   principal   challenge     concerns      the
    Commission’s approach for determining the geographic area
    and customer base served by each broadcast licensee. The
    Spectrum Act grants the Commission authority to “make such
    reassignments of television channels as the Commission
    considers appropriate” when reallocating broadcast spectrum
    to other uses. 
    Id. § 1452(b)(1).
    The statute instructs that, in
    doing so, the Commission “shall make all reasonable efforts
    to preserve, as of February 22, 2012, the coverage area and
    population served of each broadcast television licensee, as
    determined using the methodology described in OET Bulletin
    69 of the Office of Engineering and Technology of the
    Commission.” 
    Id. § 1452(b)(2).
    Petitioners seize upon the statutory instruction to use “the
    methodology described in OET Bulletin 69” when
    determining the coverage area and population served of each
    broadcast licensee. In petitioners’ view, that language means
    that the Commission must apply not just the general approach
    set out in OET Bulletin 69 for determining a broadcaster’s
    population served and coverage area as of February 22, 2012,
    but also the specific computer software and data inputs the
    Commission would have used to make those determinations
    on that date. The Commission, by contrast, interprets the
    phrase “methodology described in OET Bulletin 69” to refer
    8
    to the “procedures for evaluating television coverage and
    interference that are provided for in that bulletin, not the
    computer software or input values” that may have been “used
    to apply that methodology in any given case.” Order, ¶ 134.
    We review the Commission’s interpretation of the
    Spectrum Act pursuant to the two-step Chevron framework.
    Northpoint Tech., Ltd. v. FCC, 
    412 F.3d 145
    , 151 (D.C. Cir.
    2005); see Chevron U.S.A. Inc. v. Natural Res. Def. Council,
    Inc., 
    467 U.S. 837
    (1984). We first ask whether Congress
    “has directly spoken to the precise question at issue.”
    
    Chevron, 467 U.S. at 842
    . If so, then “the court, as well as
    the agency, must give effect to the unambiguously expressed
    intent of Congress.” 
    Id. at 842-43.
    But “if the statute is silent
    or ambiguous with respect to the specific issue,” we proceed
    to Chevron step two and ask whether the Commission’s
    resolution is “based on a permissible construction of the
    statute.” 
    Id. at 843.
    “A ‘reasonable’ explanation of how an
    agency’s interpretation serves the statute’s objectives is the
    stuff of which a ‘permissible’ construction is made,” but “an
    explanation that is ‘arbitrary, capricious, or manifestly
    contrary to the statute’ . . . is not.” Northpoint 
    Tech., 412 F.3d at 151
    (quoting 
    Chevron, 467 U.S. at 843-44
    ). In that
    sense, a Chevron step-two argument and a claim that the
    agency has acted arbitrarily and capriciously (which
    petitioners also assert here) overlap. Gen. Instrument Corp. v.
    FCC, 
    213 F.3d 724
    , 732 (D.C. Cir. 2000).
    1. The pertinent statutory language calls for the
    Commission to “make all reasonable efforts to preserve, as of
    February 22, 2012, the coverage area and population served
    of each broadcast television licensee, as determined using the
    methodology described in OET Bulletin 69.” 47 U.S.C.
    § 1452(b)(2). An understanding of petitioners’ and the
    Commission’s competing interpretations of that provision
    9
    requires a bit of background on the statute’s reference to “the
    methodology described in OET Bulletin 69.”
    That reference concerns a document, Bulletin No. 69,
    originally issued in 1977 by the FCC’s Office of Engineering
    and Technology (OET) and updated in 2004. Office of Eng’g
    & Tech., Fed. Commc’ns Comm’n, OET Bulletin No. 69,
    Longley-Rice Methodology for Evaluating TV Coverage and
    Interference (2004) (OET-69) (J.A. 490). OET-69 uses the
    Longley-Rice methodology, which “make[s] predictions of
    radio field strength at specific geographic points based on the
    elevation profile of terrain between the transmitter and each
    specific reception point,” to evaluate service coverage and
    interference between stations. 
    Id. at 1
    (J.A. 492). OET-69
    notes the need for a computer program to make those
    calculations. 
    Id. The computer
    program “takes certain inputs,
    including population data, geographical terrain data, and data
    about stations’ transmission facilities,” and applies the
    Longley-Rice model “to generate a station’s predicted
    coverage area and population served.” Order, ¶ 127.
    In the course of the Spectrum Act rulemaking, OET
    published a Public Notice announcing its development of a
    new computer program, called TVStudy, to perform
    interference analyses for broadcast stations in the reverse
    auction and the repacking process called for by the Spectrum
    Act. Office of Engineering and Technology Releases and
    Seeks Comment on Updated OET-69 Software, 28 FCC Rcd.
    950 (2013) (TVStudy PN). OET explained that the TVStudy
    software would calculate television stations’ coverage areas
    and populations served using the methodology described in
    OET-69. 
    Id. at 950.
    The Public Notice, along with OET’s
    corresponding notice in the Federal Register, see Office of
    Engineering and Technology Seeks Comment on Updated
    OET-69 Software, 78 Fed. Reg. 11,129 (Feb. 15, 2013),
    10
    sought comments on the new software program and also on
    proposals to update certain data inputs or to use new
    databases. Those improvements, OET explained, would serve
    “an important objective” by creating “software with improved
    accuracy . . . that makes use of the best available data to
    compute estimates of the coverage area and population served
    of each broadcast television licensee.” TVStudy PN, 28 FCC
    Rcd. at 952.
    The Commission subsequently announced in its Order
    that it would use TVStudy for the reverse auction and
    repacking process. Order, ¶ 130. The Commission also
    announced that it would rely on population data from the
    2010 U.S. Census to determine the population served by each
    broadcast station as of February 22, 2012. 
    Id. ¶ 148.
    And the
    Commission decided to adopt most of the other updates and
    improvements proposed in OET’s Public Notice, including:
    using a new terrain elevation database maintained by the U.S.
    Geological Survey (rather than the previous, and no-longer-
    maintained, terrain database discussed in OET-69), 
    id. ¶ 150;
    inputting actual antenna beam tilt data from each station
    (instead of applying a standard antenna tilt figure for all
    stations, as the computer program referred to in OET-69 had
    done), 
    id. ¶ 153;
    and increasing the precision of the model’s
    geographic coordinates (rather than rounding those
    coordinates to the nearest second, as the computer program
    referred to in OET-69 had done), 
    id. ¶ 155.
    The Commission explained that its decision to “update
    the computer software and input values used to implement the
    OET-69 methodology” accorded with the Spectrum Act’s
    “ambiguous” instruction to use “the methodology described in
    OET Bulletin 69” in determining a broadcast licensee’s
    coverage area and population served. Order, ¶¶ 133-34. The
    Order defines the “OET-69 methodology” as comprising:
    11
    “(1) a specification for determining a contour that defines the
    boundaries of a station’s coverage area, and (2) an algorithm
    for evaluating the availability of service within that contour,
    including the effects of interference from neighboring
    stations.” 
    Id. ¶ 134
    n.435. Or, as the Commission’s counsel
    described the methodology at oral argument: first, “you
    identify the signal contour”—that is, “the area that a
    [broadcast] signal of a particular strength covers”—next, “you
    chop that up into a grid” containing “a number of cells,” and
    then “you use the Longley-Rice propagation model to
    evaluate whether or not you actually get a viewable signal in
    those cells.” Oral Arg. Tr. 31. That “methodology” does not,
    in the Commission’s view, encompass the specific computer
    software (e.g., TVStudy) or input values (e.g., updated Census
    figures) used to “implement” it in any given instance. Order,
    ¶ 134.
    Petitioners read the statute differently. The relevant
    provision, as noted, calls for the Commission to undertake
    “all reasonable efforts” to “preserve, as of February 22, 2012,
    the coverage area and population served of each broadcast
    television licensee, as determined using the methodology
    described in OET Bulletin 69.” 47 U.S.C. § 1452(b)(2).
    Petitioners interpret that language to mean that the
    Commission must endeavor to preserve a broadcaster’s
    coverage area and population served as they would have been
    calculated in implementing the OET-69 methodology on
    February 22, 2012. Petitioners submit that the OET-69
    “methodology” is a “fixed suite of software and procedures
    that existed on February 22, 2012” and that the Commission
    must therefore apply OET-69 just as it would have been
    applied on that date. Pet’rs’ Br. 23. Petitioners therefore
    argue that the Commission is barred from making use of
    software improvements or alternate data inputs that the
    Commission was not using as of that date.
    12
    2. We first consider petitioners’ argument that the statute
    unambiguously compels that conclusion at Chevron step one.
    We agree with the Commission that the statutory text does not
    preclude the Commission’s decision to use the improved
    TVStudy software and more accurate and current data when
    determining a broadcast licensee’s coverage area and
    population served.
    The statutory term “methodology” is wholly consistent
    with the Commission’s understanding. That term is defined
    as “a body of methods, procedures, working concepts, rules,
    and postulates employed by a science, art, or discipline,” and
    “the processes, techniques, or approaches employed in the
    solution of a problem or in doing something.” Webster’s
    Third New International Dictionary, Unabridged (online ed.
    2015).      As the Commission explained in its Order,
    “[d]istinguishing between a ‘methodology’ and the ‘software’
    and ‘inputs’ used for applying that methodology” is
    “consistent with the ordinary meaning” of each of those
    terms. Order, ¶ 134. And as the Commission further
    observed, while “the methodology described in OET-69
    requires a computer program and data inputs,” those are
    “tools for applying” the methodology, not the methodology
    itself. 
    Id. Petitioners contend
    that “the methodology described in
    OET Bulletin 69” is a regulatory term of art through which
    Congress unambiguously incorporated the precise software
    program and data inputs the Commission would have used to
    calculate a broadcast station’s coverage as of February 22,
    2012.      They maintain, for instance, that Congress
    unequivocally barred the FCC from using 2010 Census data
    when assessing a broadcaster’s population served. In other
    words, Congress, in petitioners’ understanding, compelled the
    Commission to calculate a broadcaster’s population coverage
    13
    based on obsolete figures from the 2000 Census rather than on
    up-to-date figures from 2010.
    Nothing in the statutory text requires us to attribute that
    counterintuitive intention to Congress. While the statute
    references OET-69, that bulletin contains no specification
    about which Census data to use. Petitioners point to a
    separate regulation, 47 C.F.R. § 73.616(e)(1), in which the
    Commission as of 2008 prescribed use of 2000 Census data—
    the most recent Census then available—for post-DTV-
    transition station applications. That regulation, however, has
    no necessary bearing on the incentive auction and repacking
    processes subsequently called for by the Spectrum Act, which
    had yet to be enacted at the time of the regulation’s
    promulgation.
    Petitioners’ argument asserts not only that Congress
    inexplicably foreclosed the use of up-to-date Census figures
    to assess a broadcaster’s population served, but also that
    Congress, for some reason, precluded the development of
    improved software tailored to implement OET-69 for
    purposes of the Spectrum Act. Again, nothing in the statute
    or in OET-69 itself compels that conclusion. OET-69 states
    only that “[a] computer is needed to make” the Longley-Rice
    radio propagation model’s “predictions,” OET-69, at 1 (J.A.
    492), suggesting that, while a computer is necessary to
    implement the methodology, no particular software program
    inheres in the methodology. And although OET-69 explains
    that there is a “computer program now used by the [FCC]
    Media Bureau” to evaluate applications for new and modified
    broadcast stations, 
    id. at 8
    n.1 (J.A. 499), it contemplates that
    others “desiring to implement the Longley-Rice model” may
    use “their own computer program,” 
    id. at 5
    (J.A. 496).
    14
    Additionally, as the Commission explained in the Order,
    “[t]he Commission’s bureaus have used different software
    programs to implement OET-69” for different purposes.
    Order, ¶ 146. “Each type of software provides a different
    utility that serves the purposes for which it is used (i.e.,
    licensing, interference and international coordination).” 
    Id. Especially in
    that light, there is no reason to conclude that,
    merely by referencing “the methodology described in OET
    Bulletin 69,” Congress sought to foreclose the Commission’s
    development of software designed to best implement the
    incentive auction and repacking process newly called for by
    the Spectrum Act. At the very least, the statute does not
    unambiguously compel that surprising reading.
    We are unpersuaded by petitioners’ identification of two
    prior instances in which the Commission arguably used the
    word “methodology” to refer both to OET-69’s general
    approach and to particular data inputs. Petitioners point to no
    instance in which Congress applied the term in that fashion.
    Nor can petitioners identify anything that supports their
    reading in OET-69 itself—the document contains no
    definition of the word “methodology.” Further, the two prior
    instances of Commission usage arose in contexts unrelated to
    the Spectrum Act. Those instances identified by petitioners
    thus fall well short of establishing that Congress
    unequivocally barred the Commission from using improved
    software and updated data inputs when applying OET-69
    under that Act.
    In addition, the two instances noted by petitioners are not
    models of clarity. The first concerns the Commission’s
    adjustments in 2008 to the rules governing the then-ongoing
    DTV transition.       See Third Periodic Review of the
    Commission’s Rules and Policies Affecting the Conversion to
    Digital Television, 73 Fed. Reg. 5634 (Jan. 30, 2008). There,
    15
    the Commission stated that it was “revis[ing] the OET 69
    interference analysis methodology to make the results more
    accurate,” including by using 2000 Census data in evaluating
    station applications.       
    Id. at 5668;
    see 47 C.F.R.
    § 73.616(e)(1). Although the Commission observed that it
    was revising “the OET 69 interference analysis
    methodology,” it may have been using shorthand to describe a
    revision to its particular application of the methodology in
    connection with the DTV transition. And notably, whereas
    the Commission sought to make its application of OET-69
    “more accurate” by using the most current Census data,
    petitioners’ reading of the Spectrum Act would have the
    opposite effect here, precluding the use of up-to-date Census
    data. The second instance identified by petitioners concerns
    an FCC ruling (also related to the DTV transition) referring to
    “the default vertical antenna patterns inherent in the OET-69
    methodology.” In the Matter of Qualcomm Inc. Petition for
    Declaratory Ruling, 21 FCC Rcd. 11,683, ¶ 14 (2006). That
    oblique statement again may be a shorthand reference to the
    Commission’s application of OET-69’s methodology in that
    context. But even if otherwise, it fails to establish a broader
    understanding under which any reference to that methodology
    necessarily incorporates the particular computer software and
    data inputs in use at any particular time.
    For those reasons, we reject petitioners’ contention at
    Chevron step one that the statute unambiguously forecloses
    the Commission’s use of the improved TVStudy program
    along with updated data inputs when applying OET-69 to
    determine a broadcaster’s coverage area and population
    served.
    3. Proceeding to Chevron step two, we ask whether the
    Commission offered a “reasonable explanation of how [its]
    interpretation serves the statute’s objectives.” Northpoint
    16
    
    Tech., 412 F.3d at 151
    (internal quotation marks omitted).
    The Commission’s Order readily met that standard.
    The Commission persuasively explained why the
    TVStudy software is both more user-friendly and better
    adapted to handle the kinds of computations the Commission
    will need to conduct in the reverse auction and repacking
    process called for by the Spectrum Act. See Order, ¶¶ 130-
    32. The repacking, the Commission observed, “presents a
    complex engineering problem that must be solved repeatedly
    during the course of the reverse auction bidding process:
    namely, how to determine which channels to assign to stations
    that will stay on the air, consistent with statutory
    requirements, as well as . . . technical requirements.” 
    Id. ¶ 6.
    That requires a computer program capable of “undertak[ing],
    in a timely fashion, the volume of interference calculations
    necessary to ensure that all stations that will remain on the air
    following the auction are assigned channels in accordance
    with the provisions of the Spectrum Act.” 
    Id. ¶ 130;
    see 
    id. ¶ 19.
    The Commission’s engineering experts tell us that
    TVStudy is up to the task: for instance, unlike the
    Commission’s prior software, TVStudy can “create and use a
    uniform nationwide grid for analysis of coverage area and
    population served” and “undertake pairwise interference
    analyses of every station that will remain on the air after the
    incentive auction and generate data that identify combinations
    of stations that can (or cannot) co-exist on the same channel
    or adjacent channels.” 
    Id. ¶¶ 130,
    132 (internal footnote
    omitted). And it can perform that analysis much more
    quickly than the prior software could. 
    Id. ¶ 132.
    The Commission also explained that its use of updated
    and more precise data inputs advanced its statutory mandate
    to use “all reasonable efforts” to preserve each station’s
    coverage area and population served as of February 22, 2012.
    17
    
    Id. ¶ 130.
    It is self-evident that the accuracy of the
    Commission’s determinations would be improved by its use
    of more recent population data, more precise terrain
    calculations, and more exact technical information. Indeed,
    the terrain database mentioned in the 2004 version of OET-69
    has become “obsolete” and is no longer distributed or
    maintained by the U.S. Geological Survey. 
    Id. ¶ 150.
    Moreover, while petitioners believe that the Commission paid
    insufficient attention to the interests of broadcasters
    accustomed to the old program, the Commission explained
    that its engineers had taken care in designing and developing
    TVStudy “to ensure that it faithfully implements the OET-69
    methodology, provides results that closely match those of the
    earlier computer software (notwithstanding updates that
    improve accuracy), and avoids bias that would systematically
    reduce broadcast stations’ coverage areas and populations
    served.” 
    Id. ¶ 140.
    The Spectrum Act aims to enhance the technological
    capacity of the United States by requiring the Commission to
    conduct an incentive auction that is “the first such auction
    ever attempted worldwide.” NPRM, ¶ 4. The Commission
    understandably declined to fulfill that forward-looking
    mandate by using obsolete software and inaccurate data.
    Petitioners’ insistence that the Commission do so runs counter
    to the statute’s basic objectives.
    We thus reject petitioners’ argument that the
    Commission’s decision to use TVStudy and updated inputs
    amounts to an unreasonable interpretation of the Spectrum
    Act at Chevron step two. Our analysis also suffices to
    dispense of petitioners’ arbitrary-and-capricious arguments to
    the same effect. See Gen. 
    Instrument, 213 F.3d at 732
    .
    18
    B.
    Petitioners also lodge a procedural challenge to the
    Commission’s decision to use TVStudy. Petitioners argue that
    the Commission’s decision was flawed because the
    Commission’s Notice of Proposed Rulemaking for the
    Spectrum Act failed to include a proposal to use a new
    computer program or updated data inputs. The only notice
    regarding the Commission’s planned use of TVStudy, they
    maintain, came from OET, a staff-level Commission Office,
    and not from the full Commission. Petitioners invoke our
    court’s decision in Sprint Corp. v. FCC, in which we found
    that the FCC failed to comply with the Administrative
    Procedure Act’s notice-and-comment requirements when the
    only public notice regarding the Commission’s rule change
    came from the FCC’s Common Carrier Bureau. 
    315 F.3d 369
    , 376-77 (D.C. Cir. 2003); see 5 U.S.C. § 553(b).
    We need not examine in detail the interplay between
    § 553(b)’s requirements and the Commission’s actions here,
    however, because any error in OET’s (rather than the
    Commission’s) issuing the Public Notice was certainly
    harmless. See 5 U.S.C. § 706 (courts shall take “due account”
    of “the rule of prejudicial error” in reviewing agency action);
    U.S. Telecom Ass’n v. FCC, 
    400 F.3d 29
    , 41 (D.C. Cir. 2005).
    In this regard, Sprint, on which petitioners rely, materially
    differs from this case. In Sprint, the Common Carrier Bureau
    did not publish its notice in the Federal 
    Register. 315 F.3d at 374
    . Additionally, the Bureau’s notice in Sprint—which
    sought comment on a party’s petition for clarification—
    “described a proposal completely different from that which
    the FCC ultimately adopted,” U.S. 
    Telecom, 400 F.3d at 41
    n.25 (describing Sprint), such that “the parties did not
    appreciate that the Commission was contemplating” the rule it
    ultimately issued, 
    Sprint, 315 F.3d at 376
    .
    19
    Here, OET published its notice in the Federal Register as
    a “proposed rule” of the Commission. See Office of
    Engineering and Technology Seeks Comment on Updated
    OET-69 Software, 78 Fed. Reg. 11,129. The notice stated
    unequivocally that “[t]he Commission plans to use this new
    software in connection with the proposed broadcast television
    spectrum incentive auction,” 
    id. at 11,129,
    and it asked for
    comment both on the software generally and on all of the
    various data inputs the Commission was considering
    changing, see 
    id. at 11,131-32.
    The notice therefore “made
    the issue under consideration crystal clear.” U.S. 
    Telecom, 400 F.3d at 41
    . Petitioners make no suggestion that the
    Commission’s decision to use TVStudy and the updated data
    sets departed in any significant way from OET’s account of
    its proposals in the Federal Register. In fact, petitioners
    acknowledge that the Commission more or less adopted
    OET’s proposals wholesale. Moreover, NAB and other
    industry members articulated their opposition to the use of
    TVStudy and the proposed data sets in written submissions
    and ex parte meetings with Commission staff. And the
    Commission acknowledged and responded to their concerns
    throughout its Order. See, e.g., Order, ¶¶ 129, 147.
    Consequently, this is not a case in which the petitioner
    has made a “colorable claim that it would have more
    thoroughly presented its arguments had it known that the
    Commission was contemplating a rulemaking,” such that the
    effect of any procedural error is “uncertain.” 
    Sprint, 315 F.3d at 377
    . Rather, this is a case in which it is apparent that any
    procedural error was non-prejudicial. See U.S. 
    Telecom, 400 F.3d at 41
    ; City of Arlington v. FCC, 
    668 F.3d 229
    , 244-45
    (5th Cir. 2012).
    20
    C.
    Aside from their unsuccessful challenge to the
    Commission’s use of TVStudy, petitioners press two
    additional arguments concerning the Commission’s statutory
    obligation to “make all reasonable efforts to preserve, as of
    February 22, 2012, the coverage area and population served
    of each broadcast television licensee.”          47 U.S.C.
    § 1452(b)(2). Neither argument persuades us.
    1. Petitioners argue that the Commission failed to make
    reasonable efforts to preserve the “population served” by a
    station when it declined to protect repacked stations against
    so-called “terrain loss” occasioned by reassignment to a new
    channel. The Commission interpreted “population served” to
    mean those persons who reside in a station’s “coverage area”
    in locations at which the station’s signal avoids interference
    from other stations. Order, ¶ 179. The Commission
    explained that it intended to “preserve” that coverage area in
    the repacking process by replicating the station’s existing
    signal contour on its new channel, including by allowing
    power adjustments necessary to enable the signal to continue
    to reach the same geographic area. 
    Id. ¶ 166.
    But because
    “radio signals propagate differently on different frequencies,”
    a station’s reassignment to a different channel means that “its
    technical facilities (transmit power and antenna pattern) must
    be modified to preserve its coverage area.” 
    Id. ¶ 163.
    “With
    such modifications,” in turn, “there may be some small
    differences in the specific geographic areas served within the
    station’s . . . contour, even though the total geographic area
    within the station’s contour remains the same.” 
    Id. That is
    called terrain loss, i.e., loss of coverage because the station’s
    new frequency interacts in new ways with the terrain in the
    station’s geographic contour. See Pet’rs’ Br. 49; Order,
    ¶ 163.
    21
    The Commission described the possibility of terrain loss
    as “unavoidable,” explaining that “exact replication of
    coverage within a station’s contour is not always attainable
    under the laws of physics.” Order, ¶ 170. During the
    comment period, commenters suggested that the Commission
    should make up for terrain loss by expanding a repacked
    station’s signal contour. See 
    id. ¶ 172.
    The Commission
    declined to do so because “[a]llowing contour extensions
    during the repacking process [would] make it more difficult to
    repack stations efficiently.” 
    Id. ¶ 173.
    The Commission
    similarly declined to withhold consideration of any post-
    auction channel reassignment that would result in anything
    greater than a de minimis change in coverage. 
    Id. According to
    the Commission, “[r]educing the number of potential
    channels significantly limits [its] flexibility to assign channels
    in the repacking process, increasing the potential costs of
    clearing the spectrum and decreasing the likelihood of a
    successful auction outcome.” 
    Id. And the
    Commission
    interpreted the Act’s preservation mandate “to require that we
    make all reasonable efforts to preserve each station’s
    coverage area and population served without sacrificing the
    goal of a successful incentive auction.” 
    Id. (emphasis added).
    Petitioners argue that, in electing to proceed with channel
    reassignments notwithstanding the possibility of terrain loss,
    the Commission failed to satisfy its duty to make reasonable
    efforts to preserve a station’s pre-auction customer base. We
    disagree. As an initial matter, the Commission explained that
    “the majority” of UHF broadcast stations would be reassigned
    to channels lower in the UHF band whose “superior
    propagation characteristics” could be expected to decrease
    terrain loss. 
    Id. ¶ 174.
    With respect to those circumstances in
    which some terrain loss could occur, the Commission’s
    decision to live with that possibility lay well within its latitude
    under § 1452(b)(2).
    22
    Congress’s instruction to make “all reasonable efforts” to
    preserve the service of existing stations did not constrain the
    Commission to accept nothing more than a de minimis change
    in coverage area or population served in the repacking
    process. See 
    id. ¶¶ 123,
    173. In deciding which preservation
    efforts would be “reasonable,” it was entirely permissible for
    the Commission to take into account the Spectrum Act’s
    overarching objective of repurposing broadcast spectrum.
    The term “reasonable,” we have explained, “opens a rather
    large area for the free play of agency discretion.” Orloff v.
    FCC, 
    352 F.3d 415
    , 420 (D.C. Cir. 2003); see Capital
    Network Sys., Inc. v. FCC, 
    28 F.3d 201
    , 204 (D.C. Cir. 1994)
    (“Because ‘just,’ ‘unjust,’ ‘reasonable,’ and ‘unreasonable’
    are ambiguous statutory terms, this court owes substantial
    deference to the interpretation the Commission accords
    them.”). The Commission reasonably exercised its discretion
    in concluding that a prohibition against any reassignments
    carrying a risk of terrain loss would unduly limit its flexibility
    in connection with the reverse auction and repacking process.
    2. Petitioners contend that the Commission contravened
    its duty to preserve repacked stations’ coverage areas by
    failing adequately to account for unpopulated areas within a
    station’s geographic contour. The Commission explained
    that, for each station potentially subject to the repacking
    process, it will create an “interference-paired file” that lists all
    the other stations that could not be assigned to operate on the
    same channel or an adjacent channel due to concerns about
    signal interference. Order, ¶ 114. In a footnote, the
    Commission noted that the “interference-paired file will
    match the coverage area of a station to the degree that the
    area is populated.” 
    Id. ¶ 114
    n.372 (emphasis added).
    Petitioners argue that the footnote amounts to an
    announcement that the Commission intends to preserve a
    station’s geographic coverage area only to the extent it is
    23
    populated, in derogation of the obligation to make all
    reasonable efforts to preserve coverage area.
    As Commission counsel clarified during oral argument,
    however, when the Commission replicates a station’s
    preexisting signal contour on its new channel as part of the
    repacking process, unpopulated areas will remain within the
    protected contour when there is no signal interference to those
    areas. Oral Arg. Tr. 40; see Declaratory Ruling, ¶ 8. Insofar
    as a possibility of signal interference exists, the Commission
    reasonably decided against insulating an area from
    interference if it is unpopulated—i.e., if there are no viewers
    affected by the interference. As the Commission explained,
    the term coverage area “defines the geographic region within
    which a signal is predicted to have a specified field strength.”
    Declaratory Ruling, ¶ 8. And the Commission “fulfill[s] the
    statutory obligation to ‘preserve’ a station’s coverage area . . .
    by ensuring that [it] can continue to operate at technical
    parameters sufficient to maintain [its] coverage area[] as of
    February 22, 2012.” 
    Id. Protecting an
    area from signal
    interference even if it is unpopulated, the Commission
    reasoned, “would significantly constrain [its] flexibility in the
    repacking process and impair the efficiency of the final
    television channel assignment scheme,” perhaps to no great
    purpose—for instance, a station’s unpopulated coverage areas
    may be uninhabitable. 
    Id. ¶ 10.
    Again, we find that the
    Commission permissibly considered the Spectrum Act’s
    overall goals in deciding how to exercise its “reasonable
    efforts” mandate.
    D.
    In their final joint argument, petitioners attack one of the
    Commission’s determinations concerning which kinds of
    broadcast stations it will protect in the repacking process.
    24
    Petitioners take issue with the Commission’s decision to
    disregard service provided by “fill-in translators” (also called
    “digital replacement translators,” “DRTs,” or “digital low
    power TV translators”) in determining a broadcast licensee’s
    coverage area. See Order, ¶¶ 237-43. A fill-in translator is a
    low-power station that receives the broadcast signal of a full-
    power station and simultaneously retransmits that signal on
    another channel. In the Matter of Amendment of Parts 73 and
    74 of the Commission’s Rules to Establish Rules for Digital
    Low Power Television, Television Translator, and Television
    Booster Stations and to Amend Rules for Digital Class A
    Television Stations, 19 FCC Rcd. 19,331, ¶ 5 (2004). A
    broadcaster can use such stations to “fill in” service to terrain-
    obstructed areas within the primary station’s coverage
    contour. 
    Id. The Commission
    created that class of stations in
    2009 to enable full-power stations to restore service to areas
    that lost coverage as a result of the digital transition. In the
    Matter of Amendment of Parts 73 and 74 of the Commission’s
    Rules to Establish Rules for Replacement Digital Low Power
    Television Translator Stations, 24 FCC Rcd. 5931, ¶ 1 (2009)
    (DRT Order).
    Petitioners argue that the decision to leave fill-in
    translators unprotected contravenes the Spectrum Act’s
    preservation mandate and is otherwise arbitrary and
    capricious.     Once again, however, we defer to the
    Commission’s reasonable implementation of the mandate.
    The provision calls for efforts to preserve the coverage area
    and population served “of each broadcast television licensee.”
    47 U.S.C. § 1452(b)(2). The Act, in turn, defines “broadcast
    television licensee” as “the licensee of . . . a full-power
    television station; or . . . a low-power television station that
    has been accorded primary status as a Class A television
    licensee” under the Commission’s rules. 
    Id. § 1401(6).
    As
    the Commission explained, fill-in translators fall outside that
    25
    definition: they are not full-power television stations, and they
    do not qualify as Class A stations. The preservation
    mandate’s terms therefore do not extend to fill-in translators.
    See Order, ¶ 238.
    Petitioners argue that the Commission nonetheless had an
    obligation to protect fill-in translators because a broadcast
    licensee’s “coverage area and population served” may come
    in part from retransmission via a fill-in translator. While the
    Commission perhaps could have elected to protect fill-in
    translators for that reason, the statute does not mandate their
    protection. Fill-in translators possess a separate license from
    the station whose programming they retransmit (though the
    translator license is “associated with” the main station’s
    license). See DRT Order, ¶ 23; Order, ¶ 243. And the two
    stations often operate on different channels. See DRT Order,
    ¶ 4; Order, ¶ 242. A full-power station’s license thus need
    not be considered to encompass fill-in service provided by
    another station under a separate license. The Commission’s
    determination is all the more reasonable in light of the distinct
    and secondary status the Commission has generally afforded
    to translator stations, see Order, ¶¶ 239 & n.741, 244, and the
    Commission’s assessment of the significant practical
    difficulties that would attend protection of fill-in translators,
    see 
    id. ¶ 242
    & n.747. In particular, the Commission would
    need to “protect a separate channel facility for each DRT
    operated by a full power station, significantly affecting
    repacking flexibility in markets where they are licensed.” 
    Id. We defer
    to the Commission’s reasonable judgment about the
    treatment of fill-in translator stations.
    III.
    Petitioner Sinclair Broadcast Group, not joined by NAB,
    raises two additional challenges to the Commission’s Order.
    26
    First, Sinclair takes issue with the Commission’s
    establishment of a 39-month construction period within which
    reassigned broadcasters are expected to transition their
    services to their new channels. The 39-month period has
    come to be known as the “go-dark” deadline because
    broadcasters must cease operations on their pre-auction
    stations within that time. Second, Sinclair attacks the
    Commission’s interpretation of the Spectrum Act’s
    requirement that “at least two competing licensees participate
    in the reverse auction” before the Commission accepts a
    broadcaster’s relinquished spectrum.               47 U.S.C.
    § 309(j)(8)(G)(ii). We reject both of Sinclair’s challenges.
    A.
    We initially address the Commission’s argument that
    Sinclair lacks Article III standing to pursue its two arguments
    in our court. To establish its standing, Sinclair must show:
    (1) “an ‘injury in fact’ that is (a) concrete and particularized
    and (b) actual or imminent, not conjectural or hypothetical;
    (2) [that] the injury is fairly traceable to the challenged action
    of the defendant; and (3) [that] it is likely, as opposed to
    merely speculative, that the injury will be redressed by a
    favorable decision.” Friends of the Earth, Inc. v. Laidlaw
    Envtl. Servs. (TOC), Inc., 
    528 U.S. 167
    , 180-81 (2000).
    When a party claims a future harm, as Sinclair does here, it
    must show a “substantial probability of injury,” Sierra Club v.
    Jewell, 
    764 F.3d 1
    , 7 (D.C. Cir. 2014), or a “substantial risk
    that the harm will occur,” Susan B. Anthony List v. Driehaus,
    
    134 S. Ct. 2334
    , 2341 (2014) (internal quotation marks
    omitted). Sinclair has made that showing with respect to both
    of its challenges.
    1.    With regard to the 39-month deadline, the
    Commission argues that Sinclair’s claim of future injury is
    27
    unduly speculative because it is unknown whether any
    Sinclair station will in fact be subject to repacking. But
    Sinclair submitted a declaration from its Vice President of
    Advanced Technology asserting that the company owns “at
    least 27 stations in the portion of the television broadcast band
    that is most likely to be cleared and repacked in the auction.”
    Decl. of Mark A. Aitken ¶ 19 (Aitken Decl.) (Pet’rs’ Add.
    46). That assertion draws support from Sinclair’s reasoned
    predictions about which channels the Commission will clear
    upon reaching certain “clearing targets”—i.e., amounts of
    spectrum obtained and sold—during the incentive auction.
    See 
    id. ¶¶ 17-19
    (Pet’rs’ Add. 45-46). In the Commission’s
    view, even if certain of Sinclair’s stations are repacked,
    Sinclair likely would be able to construct the necessary
    facilities before the go-dark deadline. That, however, is the
    very issue in dispute on the merits: Sinclair asserts that 39
    months is insufficient time, see 
    id. ¶¶ 7-15
    (Pet’rs’ Add. 40-
    45), and the Commission disagrees, see Order, ¶¶ 569-71.
    For purposes of the threshold standing stage, we need not
    (and should not) assume the accuracy of the Commission’s
    position. See In re Navy Chaplaincy, 
    697 F.3d 1171
    , 1178
    (D.C. Cir. 2012); City of Waukesha v. EPA, 
    320 F.3d 228
    , 235
    (D.C. Cir. 2003). Rather, based on its description of the
    “inescapable challenges” facing broadcasters in the repacking
    process, Aitken Decl. ¶ 12 (Pet’rs’ Add. 43), Sinclair offers
    enough to show a “substantial risk” that one of its stations
    will miss the go-dark deadline.
    2. Sinclair also has standing to raise its second challenge.
    As discussed below, the Commission interprets the
    requirement that “at least two competing licensees participate
    in the reverse auction” to be satisfied as long as two licensees
    anywhere in the country submit a valid application to take
    part in the auction and the two licensees are not commonly
    controlled. Order, ¶¶ 413-14. The Commission contends that
    28
    its interpretation cannot injure Sinclair because “a single
    licensee in any specific market (as opposed to in the auction
    as a whole) can only benefit from the absence of a directly
    competing bidder, as that absence will reduce downward
    pressure on reverse auction payments.” Resp’ts’ Br. 65.
    Sinclair, for that reason, might well lack standing if it claimed
    injury only as a future auction participant. But Sinclair also
    attests that certain of its stations will not participate in the
    reverse auction, which leaves those stations vulnerable to
    repacking and its attendant risks. Aitken Decl. ¶ 17 (Pet’rs’
    Add. 45). Sinclair further explains that, if the Commission is
    able to acquire more relinquished spectrum in the reverse
    auction (as the Commission’s broad interpretation of the two-
    participant requirement would serve to enable), the
    Commission then would repack more stations against their
    will. 
    Id. The Commission
    does not counter Sinclair’s
    articulation of the link between the Commission’s reverse-
    auction clearing targets and the amount of spectrum it will
    subsequently repack. We therefore find that Sinclair has
    shown a substantial risk that the Commission’s interpretation
    of the two-participant restriction will ultimately work to
    Sinclair’s detriment.
    B.
    Although Sinclair has standing to press its two
    challenges, we find in favor of the Commission on the merits
    of both.
    1. With respect to the Commission’s decision to
    establish a 39-month go-dark period, we perceive nothing
    arbitrary or capricious about the Commission’s choice of that
    cut-off point. The Commission chose a 39-month period
    based on the combination of a three-month period within
    which to apply for a construction permit and a 36-month
    29
    period within which to transfer facilities to the new channel.
    Although Sinclair submits that the period is unduly brief, a
    number of commenters on the broadcaster side, including
    NAB, pushed for a still shorter period of less than 36 months.
    Order, ¶ 568 n.1604. Moreover, the Commission’s choice
    accords with FCC rules requiring licensees constructing
    entirely new facilities to do so within three years. 
    Id. ¶ 568;
    see 47 C.F.R. § 73.3598(a). And the transition period also
    coheres with the Spectrum Act’s requirement that the
    Commission reimburse reassigned broadcasters for their
    relocation expenses within three years of the forward auction.
    Order, ¶ 568; see 47 U.S.C. § 1452(b)(4)(D).
    Sinclair argues that the Commission failed to account for
    significant resource and labor shortages in the supply of
    broadcast-television construction services, which it predicts
    will only grow during the repacking process under the
    pressure of increased demand. The Commission specifically
    noted those concerns, however, and explained that the
    transition would proceed in phases to “eliminat[e] the need
    for all stations to obtain their equipment or schedule a tower
    crew at the same time.” Order, ¶ 571. In addition, the
    Commission expects service providers to respond to the surge
    in demand, 
    id., a predictive
    judgment about a matter within its
    expertise to which we accord “substantial deference.” See
    Nuvio Corp. v. FCC, 
    473 F.3d 302
    , 306-07 (D.C. Cir. 2006).
    To be sure, the Commission, while expecting the vast
    majority of relocated broadcasters to meet the 39-month
    deadline, acknowledged that some stations might face
    challenges in doing so. Order, ¶ 569. But the Commission
    determined that extending the go-dark deadline beyond 39
    months “could depress forward-auction participation or the
    value of investments made by forward auction winners,”
    some of whom would already have to wait three years before
    30
    enjoying the fruits of their investments. 
    Id. ¶ 572
    & n.1613.
    We find that the Commission reasonably balanced the
    Spectrum Act’s competing imperatives. Cf. Fresno Mobile
    Radio, Inc. v. FCC, 
    165 F.3d 965
    , 971 (D.C. Cir. 1999).
    2. Sinclair fares no better with respect to its challenge
    concerning the requirement that “at least two competing
    licensees participate in the reverse auction” before the
    Commission accepts and transfers a broadcaster’s
    relinquished spectrum. 47 U.S.C. § 309(j)(8)(G)(ii). The
    Commission interpreted the requirement to be met if two
    broadcast licensees who lack common control successfully
    submit applications to take part in the reverse auction. Order,
    ¶¶ 413-14. According to that interpretation, as long as a
    broadcaster presents a complete application and complies
    with the auction rules, it need not actually tender a bid to be
    considered an auction “participant.” 
    Id. ¶ 413.
    Moreover, the
    two broadcasters need not operate in a common geographic
    market or channel location to be considered “competing.” 
    Id. ¶ 414.
    The statutory language does not foreclose the
    Commission’s interpretation at Chevron step one. Sinclair
    maintains that a broadcaster only can be said to “participate”
    in the auction if the broadcaster accepts the Commission’s
    offer for its license.        But the ordinary meaning of
    “participate” is to “take part in something (as an enterprise or
    activity) usually in common with others.” Webster’s Third
    New International Dictionary, Unabridged (online ed. 2015).
    Just as one could be said to “take part” in an ordinary auction
    by arriving at the auction house and considering whether to
    bid on the offerings, a broadcaster could be said to “take part”
    in the reverse auction by demonstrating eligibility and
    considering the Commission’s opening price. The statute’s
    use of the participial adjective “competing” is likewise
    31
    ambiguous. To “compete” is to “seek or strive for something
    (as a position, possession, reward) for which others are also
    contending,” or to “vie with another or others for or as if for a
    prize.” Webster’s Third New International Dictionary,
    Unabridged (online ed. 2015). But the statute does not say
    what the broadcasters must compete for. See 47 U.S.C.
    § 309(j)(8)(G)(ii).
    The Commission resolved those ambiguities by adopting
    a sensible interpretation in the context of the reverse auction’s
    design. With regard to “participate,” the Commission
    reasoned that “the knowledge that another [licensee] might
    bid will create competitive pressure for a second bidder to
    accept lower incentive payments than it would absent any
    competition,” even if the other licensee does not in fact
    submit a bid. Order, ¶ 413 (emphasis added). And with
    regard to “competing,” the Commission explained that, under
    its auction design framework, “regardless of their pre-auction
    geographic or channel location, all participants in the reverse
    auction will compete to receive incentive payments from the
    same limited source—the aggregate proceeds of the forward
    auction.” 
    Id. ¶ 414.
    The Commission, as Sinclair argues,
    adopted a broad understanding of the two-participant
    requirement: theoretically, the Commission’s rule would be
    met if any two broadcasters anywhere in the country submit
    compliant applications and one of them accepts the
    Commission’s opening offer for its license. Congress,
    however, enacted no specification that the two licensees must
    occupy the same geographic market or possess licenses
    covering substantially the same contour. Congress instead
    granted the Commission definitional discretion to be
    exercised in the context of the particular incentive auction the
    Commission ultimately designed.
    32
    Sinclair does not purport to offer a better interpretation of
    “competing” in the context of the reverse auction for
    broadcast spectrum. And we are hard-pressed to come up
    with one. That two broadcasters may compete in the
    provision of television service in a particular geographic
    market fails to determine the broadcasters’ relationship in
    connection with the reverse auction. The Commission will
    offer buy-out prices in that auction on a station-by-station
    basis, with the prices getting lower in each round. 
    Id. ¶¶ 450,
    453. The prices will take into account not only the station’s
    geographic location but also its potential to cause interference
    to other stations, because the latter could affect the
    Commission’s flexibility in making reassignments during the
    repacking process. 
    Id. ¶ 450.
    As the Commission explained,
    “the interdependent nature of the repacking process, where
    repacking one station may have widespread effects across
    geographic areas with possible nationwide band plan
    implications, means that participants will be affecting, and
    competing with, licensees far beyond their contour, DMA
    [Designated Market Area], or channel.” 
    Id. ¶ 414.
    Given the
    myriad ways in which one broadcaster’s spectrum offerings
    could be said to be “competing” with the offerings of another,
    the Commission reasonably settled on a definition focused on
    the one way in which all broadcasters unquestionably interact
    with one another in the reverse auction: they all vie for the
    same limited pool of forward-auction proceeds.
    The Commission, moreover, persuasively explained why
    it rejected a geography-based definition of “competing.”
    Such a rule “could mean that an otherwise willing and eligible
    broadcast television licensee would not be allowed to bid in
    the reverse auction if it is the only participant in its DMA.”
    
    Id. ¶ 415.
    We agree with the Commission that if a wireless
    provider stands willing to pay enough in the forward auction
    to cover the broadcast licensee’s buy-out price and other
    33
    associated expenses, there is no apparent reason to deny the
    Commission the ability to accept the broadcaster’s bid to
    relinquish that spectrum. To require the Commission to forgo
    the spectrum merely because no other broadcaster in the same
    geographic market wishes to sell “would limit the
    Commission’s ability to allow market forces to determine the
    highest and best use of spectrum” and prevent acquisition of
    adequate spectrum to allow the auction to close. 
    Id. We are
    unable to conclude that Congress intended to bring about such
    a result.
    *   *   *    *   *
    We have considered petitioners’ other arguments and
    concluded that none has merit. Accordingly, we deny the
    petitions for review.
    So ordered.