Rainbow/Push Coalition v. F.C.C.

• Decision Date: 04 February 2005
• Docket Number: No. 01-1072.,No. 04-1084.,01-1072.,04-1084.
• Citation: 396 F.3d 1235
• Parties: RAINBOW/PUSH COALITION, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Curators of the University of Missouri, Intervenor Rainbow/PUSH Coalition, Appellant v. Federal Communications Commission, Appellee Curators of the University of Missouri, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

396 F.3d 1235

RAINBOW/PUSH COALITION, Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Curators of the University of Missouri, Intervenor Rainbow/PUSH Coalition, Appellant v. Federal Communications Commission, Appellee

Curators of the University of Missouri, Intervenor

No. 01-1072.

No. 04-1084.

United States Court of Appeals, District of Columbia Circuit.

Argued December 2, 2004.

Decided February 4, 2005.

COPYRIGHT MATERIAL OMITTED

Appeals of Orders of the Federal Communications Commission.

William L. Lowery argued the cause for the appellant. Holly L. Saurer and David E. Honig were on brief.

Jacob M. Lewis, Attorney, Federal Communications Commission, argued the cause for the appellee. John A. Rogovin, General Counsel, Richard K. Welch and Daniel M. Armstrong, Associate General Counsel, and Lisa E. Boehley, Counsel, Federal Communications Commission, were on brief. Jane E. Mago, Assistant General Counsel, and C. Grey Pash, Jr., Counsel, Federal Communications Commission, entered appearances.

Kathryn R. Schmeltzer argued the cause for the intervenor. Barry H. Gottfried was on brief.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Dissenting Opinion filed by Circuit Judge ROGERS.

KAREN LECRAFT HENDERSON, Circuit Judge.

Appellant Rainbow/PUSH Coalition (Coalition) appeals two decisions of the Federal Communications Commission (FCC, Commission) which granted the application of the Curators of the University of Missouri (University) to renew a license to operate radio station KWMU-FM in St. Louis, Missouri. In the first decision the FCC granted the application subject to a Notice of Apparent Liability (NAL) against the University in the amount of $8,000, denying the Coalition's petition to deny renewal based on allegations of discriminatory employment practices, Curators of Univ. of Mo., No. 00-445, 16 F.C.C.R. 1174, 2001 WL 40737 (2001); in the second the Commission granted the University's petition to reconsider and rescinded the NAL, Curators of Univ. of Mo., No. 03-303, 19 F.C.C.R. 3030, 2004 WL 291989 (2004). In each decision the Commission rejected the Coalition's request to designate the application for hearing pursuant to 47 U.S.C. § 309(e) and on appeal the Coalition asks that we remand for just such a hearing. Without reaching the merits of the Commission's decisions, we dismiss both of the appeals because the Coalition has failed to establish it has constitutional standing to bring them.

I.

The University filed its license renewal application in September 1996. In January 1997 Rainbow filed a petition to deny the application under 47 U.S.C. § 309(d)(1), asserting that the University had violated the FCC's Equal Employment Opportunity (EEO) rule, 47 C.F.R. § 73.2080, by discriminating on the basis of race in its employment decisions. Appended to the petition to deny were declarations by one former part-time employee, Winnie Sullivan, who had filed a discrimination complaint against the University with the Equal Employment Opportunity Commission (EEOC) and, subsequently, an unsuccessful suit for discriminatory termination in the Eastern District of Missouri, and by two other former employees and two unsuccessful job applicants who claimed to have been subjected to discriminatory treatment.¹ In the petition, the Coalition pointed out that the University's renewal application made no mention of Sullivan's discrimination suit. In its opposition to the Coalition's petition to deny, the University responded that it did not believe disclosure of Sullivan's complaint was required because her discrimination suit resulted in a verdict in the University's favor.

In May 1997 the FCC sent the University a letter asking the University to explain why it had failed to disclose the Sullivan discrimination complaint in its EEO report (Form 396), which the University submitted with its renewal application and which expressly directed the applicant to set out "a brief description of any complaint which has been filed before any body having competent jurisdiction under Federal, State, territorial or local law, alleging unlawful discrimination in the employment practices of the station," JA 30. The letter further directed the University to "identify any other employment discrimination complaint(s) filed against KWMU-FM during the current license term." JA 241. On July 11, 1997 the University submitted an amendment to its EEO report describing the Sullivan litigation.

On September 5, 1997 Rainbow wrote a letter to the FCC alleging the University had deliberately misrepresented its discrimination record by failing to disclose not only Sullivan's complaint and lawsuit but also two other EEOC complaints filed against the University: one by John Schieszer, a former part-time KWMU news reporter who claimed he suffered unlawful retaliation, and one by Tessa Abrams (now Marshall), a black interviewee who claimed the University failed to hire her on account of her race. On October 2, 1997 the University submitted a second amendment acknowledging the unsuccessful EEOC complaint filed by Schieszer but denying any record or knowledge of a complaint by Abrams.²

In a decision released January 17, 2001 the FCC denied the Coalition's petition and approved renewal of the KWMU license. With regard to the alleged discrimination, the Commission concluded Rainbow had not established a prima facie case justifying a hearing because its petition did not "contain specific allegations of fact sufficient to show ... that a grant of the application would be prima facie inconsistent with" the statute's requirement that "the public interest, convenience, and necessity will be served" by granting a license application. 16 F.C.C.R. at 1175 (citing 47 U.S.C. § 309(d)(1)). The Commission explained that Sullivan's complaint had been finally adjudicated — in the University's favor — and that, with regard to the other alleged discriminatees, consistent with longstanding policy and a Memorandum of Understanding between the FCC and the EEOC, the FCC did not adjudicate their claims but instead referred them first to the EEOC. The Commission advised that, "[i]f the individual allegations of employment discrimination in Rainbow's petition continue to be actionable, the Commission will take cognizance of any final determination of employment discrimination." 16 F.C.C.R. at 1179 (citing Pac. & So. Co., 11 F.C.C.R. 8503, 8505 1996 WL 382396 (1996); WNBC-TV, 5 F.C.C.R. 2049, 1990 WL 603196 (1990); KSDK, Inc., 85 F.C.C.2d 797, 1981 WL 158621 (1981), reconsideration denied, 88 F.C.C.2d 1443, 1982 WL 190537 (1982); Wash. Radio, Inc., 88 F.C.C.2d 1200, 1982 WL 190527 (1982)).

With regard to the misrepresentation charge, the FCC found that the University's initial application and the first amendment thereto omitted material facts — respectively, the Sullivan litigation and Schieszer's EEOC complaint³ — but found "no evidence of an intent to deceive that would support a finding of misrepresentation or lack of candor." 16 F.C.C.R. at 1180. The Commission nonetheless made license renewal subject to an NAL of $8,000 "for willfully omitting material facts in its Form 396 in violation of [47 C.F.R. § 73.1015]." 16 F.C.C.R. at 1181.⁴ Rainbow filed a timely notice of appeal of the decision.

The University moved for reconsideration and in an order released February 17, 2004, the FCC (with two commissioners dissenting) rescinded the NAL because the University's "omissions were not of sufficient gravity to warrant the assessment of a forfeiture under all of the circumstances." 19 F.C.C.R. at 3032. Rainbow filed a timely notice of appeal of this decision as well.

II.

This court has directed that "a petitioner whose standing is not selfevident [sic] should establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding" — either "in response to a motion to dismiss for want of standing" or, in the absence of such motion, "with the petitioner's opening brief." Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002). At this procedural stage, a petitioner "must demonstrate," not merely allege, "that there is a `substantial probability'" it will suffer injury if the court does not grant relief. Id."The petitioner may carry its burden of production by citing any record evidence relevant to its claim of standing and, if necessary, appending to its filing additional affidavits or other evidence sufficient to support its claim." Id. at 900-01. Having reviewed the materials the Coalition has submitted, we conclude that it has not met its burden because it has not demonstrated the threshold requirement for associational standing that "at least one of its members would have standing to sue in his own right." Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 542 (D.C.Cir.2003) (citing Hunt v Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).⁵

To meet this burden the Coalition appended to its opening brief the affidavit of the Reverend Dr. Sammie Earl Jones, a Coalition member who for twenty-five years has resided in St. Louis and been a "regular listener" to KWMU. That Jones is a member of the station's listening audience, however, does not grant "automatic audience standing" to Jones, or through him to the Coalition, to challenge a license renewal even when it is alleged the licensee will operate contrary to the public interest. Rainbow/PUSH Coalition, 330 F.3d at 542. Instead, the Coalition must demonstrate that it satisfies each of the three prongs of the well-established test for standing.

"The `irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). That is, "`"to...