JEM Broadcasting Co., Inc. v. F.C.C.
| Decision Date | 16 June 1994 |
| Docket Number | No. 93-1099,93-1099 |
| Citation | 22 F.3d 320 |
| Parties | JEM BROADCASTING COMPANY, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Gayla Joy Hendren, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Appeal from Orders of the Federal Communications Commission.
Roy F. Perkins, Jr., Washington, DC, argued the cause and filed the briefs for appellant.
Sue Ann Kanter, Counsel, Federal Communications Commission, Washington, DC, argued the cause for appellee. With her on the brief were Renee Licht, Acting Gen. Counsel, Federal Communications Commission, and Daniel M. Armstrong, Associate Gen. Counsel, Federal Communications Commission, Washington, DC.
On the brief for intervenor Gayla Joy Hendren was Julian P. Freret, Washington, DC.
Before: MIKVA, Chief Judge, EDWARDS and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In July 1988, appellant JEM Broadcasting Company, Inc. ("JEM") submitted a license application for a new FM station in Bella Vista, Arkansas. The Federal Communications Commission ("FCC" or "Commission") accepted JEM's application for filing, but determined upon further review that JEM had provided inconsistent geographic coordinates for its proposed transmitter site. Unable to resolve the inconsistency from the application papers, the FCC, acting pursuant to its "hard look" processing rules, dismissed JEM's application without providing JEM an opportunity to correct its error.
JEM challenges the Commission's summary dismissal of its application on several grounds. First, JEM contends that the so-called "hard look" rules cannot be applied against it because the rules were promulgated without notice and comment in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 553 (1988) ("APA"). This claim is meritless for two reasons: JEM's challenge is untimely, and, in any event, notice and comment rulemaking was not required. Second, JEM asserts that it was entitled to a hearing on its application under the Communications Act of 1934, 47 U.S.C. Secs. 309(d)-(e) (1988), and that the summary dismissal deprived it of due process under the Fifth Amendment. Because we find that these contentions also lack merit, we affirm.
The FCC allotted 689 new commercial FM channels in early 1985. Anticipating a flood of license applications in response to the allotments, the Commission promulgated stringent application processing rules designed to streamline the agency's review process and to weed out hastily prepared, incomplete applications. See Processing of FM and TV Broadcast Applications, Report & Order, 50 Fed.Reg. 19936 (May 13, 1985) ("FM Processing Rules "). The "hard look" rules established a fixed filing period--known as a "window"--for all applications requesting use of a particular channel. See id. at 19940-41. Applications filed within the window period would be evaluated for "substantial completeness"; those meeting this standard would be accepted for tender and placed on publicly released Notices of Tenderability. Following release of the public notice, applicants were allowed thirty days in which to amend or perfect their applications "at will and as a matter of right." Id. at 19941.
Applications that did not include the prescribed information by the close of the window were considered "unacceptable for tender" and were returned without opportunity for filing a curative amendment. See id. at 19946 (Appendix D). Moreover, if any data were incorrect or inconsistent, and the "the critical data [could not] be derived or the inconsistency resolved within the confines of the application and with a high degree of confidence," the application was deemed unacceptable for tender and would be dismissed with no opportunity to cure the defect. Id. The Commission clearly warned future applicants of the consequences of failing to provide the prescribed information:
If the application is returned during the initial check as not sufficient for tender, we will not permit the applicant to remedy the defect and have its resubmitted application accepted nunc pro tunc in order to be grouped with other applications filed by a window closing date....
Id. The Commission also warned that "if an incomplete application has been inadvertently accepted for tender, it will be stripped of its file number and returned; it may not be perfected to pass tender review." Id. at 19941. JEM's application met this latter fate.
In Appendix D to the FM Processing Rules, the Commission specified the indispensable components of a "substantially complete" license application. As relevant here, Appendix D required all applications to include the location of the proposed transmitter, specified by geographic coordinates in the applicant's engineering exhibit, and identified on a map as well. See id. at 19945 (Appendix D). The Commission explained that the coordinates were needed "to determine the distances from the proposed site to other proposed or existing broadcast facilities and to the community of license, ... [to] determin[e] whether protection must be afforded to Commission monitoring facilities and to radio quiet zones, [to] mark the center of the 'blanketing' area, and ... [to analyze] environmental effects and electromagnetic effects on other, nearby communications facilities." Id. (citations omitted). The map showing the transmitter site would enable the staff "to verify the coordinates of the proposed site, the presence of other, nearby communications facilities and of obstructing terrain features, and the ground elevation of the transmitter site." Id. (citation omitted).
JEM filed its application for the Bella Vista, Arkansas station on July 14, 1988. After initially accepting JEM's application for filing, the staff of the Mass Media Bureau discovered that the coordinates provided for JEM's proposed transmitter site, 36? 13' 10", were inconsistent with the site marked on JEM's map, which, the staff determined, was 36? 15' 10". The Bureau was unable to resolve the inconsistency from the face of JEM's application, and concluded that the discrepancy made it "impossible to determine the veracity of the site availability certification, the environmental impact statement, or the information supplied for FAA approval." In re Gayla Joy Hendren, 5 FCC Rcd 5440, 5440 p 5 (M.M.B.1990). In accordance with the "hard look" rules, the Bureau dismissed JEM's application as having been "inadvertently accepted for filing." Id.
JEM petitioned for reconsideration, acknowledging that it had provided incorrect coordinates, but contending that other information in its application allowed the staff to determine the correct site. The Commission denied the petition, finding that the engineering exhibits and FAA approval to which JEM referred did not resolve the discrepancy because the wrong coordinates might have been used to generate those exhibits and to obtain FAA approval. See In re JEM Broadcasting Company, Inc., 7 FCC Rcd 4324, 4325-26 pp 8-10 (1992). The FCC further explained that it would only look to information outside an application to resolve a conflict in coordinates when an applicant intended to use an existing licensed tower; in such cases, the Commission could take official notice of the information in its records to verify the coordinates for the tower and thus resolve the inconsistency. See id. at 4326 p 14.
JEM petitioned for reconsideration, briefly raising the three arguments advanced in this petition for review. The Commission again denied reconsideration, finding all of JEM's arguments to be without merit. With respect to the promulgation of the "hard look" rules, the Commission observed both that it had "provided adequate notice that the scope of the rulemaking contemplated possible changes to the cut-off rule for amendments to applications," and that the limit on curative amendments was a procedural rule exempt from the APA's notice and comment requirements. In re JEM Broadcasting Company, Inc., 8 FCC Rcd 77, 77 p 3 (1992). Next, the FCC ruled that "Section 309 of the Communications Act does not prevent the Commission from adopting measures to provide for orderly processing, nor does it require the Commission to hold a hearing on an application which does not comply with the Commission's rules." Id. at 77 p 4. Finally, the agency concluded that its dismissal of JEM's application "complied with all due process requirements" and did not "amoun[t] to a governmental taking of its valuable property." Id. (citations omitted).
In this appeal, JEM renews the contentions advanced in its petition for reconsideration, namely, that the "hard look" rules were promulgated without notice and comment, in violation of the APA; that the Communications Act entitled JEM to a hearing before dismissal of its application; and that the summary dismissal violated JEM's due process rights. We address these arguments in turn, pausing first to consider the Commission's claim that the notice and comment challenge is untimely.
Section 2344 of the Hobbs Act provides that any party "aggrieved" by a "final [agency] order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies." 28 U.S.C. Sec. 2344 (1988). JEM attempts to avoid the stricture of the limitations period on two grounds. First, while conceding that direct petitions for review of an agency order are governed by the 60-day limitations period, it claims that indirect attacks on a rule's validity in the context of an adjudicatory proceeding are not so governed. Second, JEM urges that it could not have petitioned for direct review of the "hard look" rules within the statutory period because it...
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