National Ass'n of Broadcasters v. F.C.C.

• Decision Date: 05 June 2009
• Docket Number: No. 08-1117.,08-1117.
• Citation: 569 F.3d 416
• Parties: NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Prometheus Radio Project, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

569 F.3d 416

NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Prometheus Radio Project, Intervenor.

No. 08-1117.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 2009.

Decided June 5, 2009.

On Petition for Review of an Order of the Federal Communications Commission.

Jack N. Goodman argued the cause for petitioner. With him on the briefs were Samir C. Jain, Dileep S. Srihari, Marsha J. MacBride, Jane E. Mago, Jerianne Timmerman, and Ann West Bobeck.

C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Matthew L. Berry, General Counsel, and Jacob M. Lewis and Daniel M. Armstrong, Associate General Counsel. Nickolai G. Levin, Robert B. Nicholson, and Robert J. Wiggers, Attorneys, entered appearances.

Andrew J. Schwartzman and Parul P. Desai were on the brief for intervenor in support of respondent.

Before: ROGERS, GARLAND and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

As part of its continuing effort to promote low power FM ("LPFM") radio service, the Federal Communications Commission in 2007 amended its LPFM rules, including announcing standards for waivers of certain protections against interference with full-power FM stations. Creation of a Low Power Radio Service, Third Report and Order and Second Further Notice of Proposed Rulemaking, 22 F.C.C. Rcd. 21,912 (Dec. 11, 2007) ("2007 Order"). In so doing, the Commission purported not to harm the interests of full-power FM stations or other Commission licensees. Id. at 21,913 ¶ 1. The National Association of Broadcasters ("NAB") petitions for review of three changes, each of which it contends either reduced the protections afforded to full-power FM stations against signal interference from LPFM stations or gave LPFM stations primary status over full-power FM stations in particular circumstances. In adopting these changes, the NAB contends, the Commission violated the Radio Broadcasting Preservation Act of 2000, Pub.L. No. 106-553, § 632, 114 Stat. 2762, 2762A-111 (2000) ("the Preservation Act"), and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"). We hold that the Preservation Act did not bar the Commission from reducing or eliminating interference protections other than third-adjacent channel minimum distance separation requirements, and that the NAB's challenges under the APA are either unripe or unpersuasive. Accordingly, we deny the petition in part and dismiss it in part.

I.

In January 2000, the Commission adopted rules authorizing LPFM radio service in order to "provide opportunities for new voices to be heard." See Creation of Low Power Radio Service, Report and Order, 15 F.C.C. Rcd. 2,205, 2,206 ¶ 1 (Jan. 27, 2000) ("2000 Order"). The LPFM stations were to be "operated on a noncommercial educational basis," id., with a maximum of 10 or 100 watts of power, compared to full-power stations that operate with minimum power of 6,000 to 100,000 watts. To prevent interference between LPFM stations and full-power stations near each other on the FM dial, minimum distance requirements were established for co-channel and first and second-adjacent channel LPFM stations but not for third-adjacent channels. Id. at 2,206-07; see also 47 C.F.R. § 73.807 (2007).¹ The Commission found that third-adjacent channel LPFM stations would not cause "significant new interference to the service of existing FM stations," and that "any small amount of interference that may occur in individual cases would be outweighed by the benefits of new low power FM stations." 2000 Order at 2,246 ¶ 104. The Commission imposed minimum distance requirements for second-adjacent channels because it concluded "that the risk of interference from LPFM signals ... may be somewhat higher" than the risk from third-adjacent channels. Id. The Commission also required any LPFM station causing actual interference to a subsequently authorized new or modified full-power station to modify its facilities and to cease operations if modifications could not prevent interference. Id. at 2,231-32; see also 47 C.F.R § 73.809. On reconsideration it established complaint and license modification procedures designed to expedite the resolution of problems associated with "any unexpected, significant 3rd adjacent channel interference problems" caused by an LPFM station. Creation of Low Power Radio Service, Memorandum Opinion and Order on Reconsideration, 15 F.C.C. Rcd. 19,208, 19,210 ¶ 4 (Sept. 28, 2000); see also 47 C.F.R. § 73.810.

On December 21, 2000, Congress enacted the Preservation Act, which did three things of relevance to this appeal. Section 632(a)(1)(A) directed the Commission to amend the LPFM rules to "prescribe minimum distance separations for third-adjacent channels (as well as for co-channels and first and second-adjacent channels)" (emphasis added). Section 632(a)(2)(A) barred the Commission from "eliminat[ing] or reduc[ing] the minimum distance separations for third-adjacent channels required by paragraph (1)(A)" (emphasis added). And, § 632(b)(1) and (b)(2) required the Commission to engage an independent testing entity to study whether harmful interference would result if LPFM stations were not subject to third-adjacent channel minimum distance separation requirements, and to file a report with Congress. The Commission amended the LPFM rules accordingly in 2001, Creation of a Low Power Radio Service, Second Report and Order, 16 F.C.C. Rcd. 8,026 (Apr. 2, 2001), and forwarded the independent study to Congress in 2004, with a recommendation that Congress "modify the statute to eliminate the third-adjacent channel distance separation requirements for LPFM stations," FEDERAL COMMUNICATIONS COMMISSION, REPORT TO THE CONGRESS ON THE LOW POWER INTERFERENCE TESTING PROGRAM, PUB.L. NO. 106-553 (2004). To date, Congress has not acted on that recommendation.

In December 2007, the Commission amended the LPFM rules, pointing to "considerably" changed circumstances arising from both "the January 2007 lifting of the freeze on the filing of FM community of license modification proposals, and the implementation of streamlined licensing procedures [that] resulted in a one-time flurry of filing activity...." 2007 Order at 21,938 ¶ 63. The amendments were designed to minimize the loss of LPFM stations and increase the number of LPFM stations on the air without causing interference to existing full-power service. The Commission explained that over the seven years since it had established the LPFM service, the service had "flourished for the most part," but had also "encountered unique obstacles." Id. at 21,917 ¶ 10. Only approximately one third of LPFM applications had been granted and although 809 stations were operating at the time of the 2007 Order, 17 station licenses and 95 construction permits had been cancelled due to noncompliance with technical or procedural requirements. Id.

The NAB challenges three provisions of the amended rules, the first two involving second-adjacent channel protections, the third involving displacement protection for LPFM stations:

(1) The modification of the cease-operations requirement in 47 C.F.R. § 73.809, where an LPFM station is causing interference to a subsequently authorized new or modified full-power FM station, to apply only to co-channels and first-adjacent channels, not second-adjacent channels. Id. at 21,938 ¶ 63.

(2) The interim standards for waiving minimum distance requirements where a subsequently authorized new or modified full-power FM station would be short-spaced to the LPFM station and thus cause the LPFM station to be displaced where an alternate, fully-spaced and rule-compliant channel was unavailable to the LPFM station. Id. at 21,939-40 ¶¶ 66-67.

(3) A rebuttable non-binding presumption favoring LPFM stations deemed to be appropriate by the Commission because "the public interest would be better served by a waiver of the Commission Rule making LPFM stations secondary to subsequently authorized full-[power FM] stations and the dismissal of an `encroaching' community of license reallotment application when the threatened LPFM station can demonstrate it has regularly provided at least eight hours per day of locally originated programming." Id. at 21,940-41 ¶¶ 68-69.

The Commission invited comment on whether to codify the second and third changes. Id. at 21,942-46.

II.

The NAB challenges the Commission's statutory interpretation and also raises objections under the APA. Upon reviewing an agency's interpretation of a statute it administers, the court applies the familiar two-step analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under step one, where a statute "has directly spoken to the precise question at issue," id. at 842, 104 S.Ct. 2778, the court and the agency "must give effect to the unambiguously expressed intent of Congress," id. at 843, 104 S.Ct. 2778. Under step two, when the statute is silent or ambiguous regarding the specific question, the court asks "whether the agency's answer is based on a permissible construction of the statute." Id. Regarding the APA challenges, the court will reverse only if the agency's action is arbitrary or capricious or manifestly contrary to the statute. See FCC v. Fox Television Stations, Inc., ___ U.S. ___, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). We conclude that the NAB has read into the Preservation Act words Congress did not enact and that its efforts to avoid the plain text are unavailing, and further that its APA challenges are unpersuasive or unripe.

A.

Section 632(a)(1)(A) of the Preservation Act requires the Commission to "prescribe minimum distance separation for...