The National Association of Broadcasters has withdrawn its 2009 lawsuit challenging a plan by the Federal Communications Commission for the use of "white spaces" - the vacant spectrum between television channels.
The broadcast group "determined that it is no longer necessary for it to pursue this petition for review" after the FCC last month revised the order, wrote in-house counsel Jane Mago and Jerianne Timmerman, and outside counsel Robert Long Jr. and Mark Mosier of Covington & Burling in papers filed May 3 at the U.S. Court of Appeals for the District of Columbia.
The court granted the motion to dismiss today.
Broadcasters feared that allowing unlicensed devices to use spectrum in between TV channels could cause interference. The court held the case in abeyance while the FCC considered petitions for reconsideration.
On April 4, the FCC adopted its Third Memorandum Opinion and Order fine-tuning technical specifications like maximum permissible power spectral density and adjacent channel emission limits — sufficient, apparently, to assuage NAB’s concerns.
“We commend NAB for filing to dismiss its court challenge to the FCC’s white spaces order,” said Harold Feld, legal director of Public Knowledge, in a news release. “The last potential legal obstacle to the use of this valuable unlicensed spectrum will be removed and the innovations that are just beginning can continue to proceed with new confidence.”
Public Knowledge intervened in the case in support of the FCC, as did Media Access Project, represented by Parul Desai and Andrew Jay Schwartzman.
Also backing the FCC: Dell Inc. and Microsoft Corp., which were represented by Christopher Wright and Timothy Simeone of Wiltshire & Grannis. Google Inc. turned to Emmett Ashton Johnston, Donna Lampert and Mark O’Connor of Lampert, O’Connor & Johnston. Motorola Solutions Inc. tapped in-house lawyer Catherine Seidel.
On the broadcasters’ side, the ABC Television Affiliates retained Wade Hampton Hargrove, Jr. and Mark Jay Park of Brooks, Pierce, McLendon, Humphrey & Leonard. NBC Universal Inc. and Fox Entertainment Group were represented by in-house lawyers.
Audio products maker Shure Inc. hired Joshua Bobeck of Bingham McCutchen, and the Alliance of Resident Theatres/New York, Inc., et al. retained Antoinette Cook Bush, David William Foster and Clifford Sloan of Skadden, Arps, Slate, Meagher & Flom.
FCC lawyers included Richard Welch and Joel Marcus of the FCC general counsel’s office.