Link: GAO Opinion
Agency: Department of Justice
Disposition: Protests denied.
Protests that agency improperly rejected protesters’ proposals for satellite television service are denied where agency solicited basic cable service.
General Counsel P.C. Highlight:
OLCR and Revolutionize, which provide satellite television service, argue that the RFP did not require the contractor be a cable service provider. GAO states that the Communications Act of 1934, as amended, separately defines the terms “basic cable service,” and “direct-to-home satellite services.” That Act also distinguishes cable and satellite television providers. Statutes governing copyright also distinguish cable and satellite television providers. Further, FCC’s regulations define television programming delivered without a wire via satellite or other facilities to not be “cable television.” Satellite and cable television are subject to different requirements under FCC regulations. Also, cable providers must obtain franchising licenses from local governments because cable service uses public rights-of-way to transmit multichannel video programming (MVP) signals; satellite providers are not required to obtain franchise agreements. Moreover, cable and satellite providers are subject to different requirements for the transmission of local commercial and non-commercial television broadcast signals.
GAO concludes that the protesters knew, or should have known, that satellite service would not be permitted under this RFP for basic cable service. In this regard, GAO does not agree with the protesters that the inclusion of NAICS code 517110 indicated that satellite service providers would be permitted to compete under this RFP. Although the NAICS code does include both cable and satellite television services, it also includes other types of services such as telephone, broadband Internet, and Voice over Internet Protocol services that are not being solicited here. As the agency explains, the RFP did not solicit proposals for a wired telecommunications carrier generally, which could include any number of the services listed under the code, but specifically solicits cable video programming. Apart from the reference to satellite service in the NAICS code, the RFP, read as a whole, reasonably informed vendors that the agency was seeking basic cable service, not service from satellite providers. The protests are denied.