Florida Institute of Technology v. F.C.C., s. 89-1187

• Decision Date: 10 January 1992
• Docket Number: 91-1167,Nos. 89-1187,s. 89-1187
• Citation: 952 F.2d 549
• Parties: The FLORIDA INSTITUTE OF TECHNOLOGY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. (Two Cases)
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 549

952 F.2d 549

293 U.S.App.D.C. 193

The FLORIDA INSTITUTE OF TECHNOLOGY, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. (Two Cases)

Nos. 89-1187, 91-1167.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 4, 1991.

Decided Jan. 10, 1992.

On Appeal from Orders of the Federal Communications commission.

John Joseph McVeigh, for appellant. Clifford M. Harrington, Washington, D.C., also entered an appearance, for appellant.

Sue Ann Kanter, Counsel, Federal Communications Com'n, with whom Robert L. Pettit, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, SILBERMAN and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The Florida Institute of Technology (the Institute) appeals from orders of the Federal Communications Commission rejecting as untimely the Institute's application for a construction permit for a new noncommercial educational FM (NCE FM) broadcast station and granting the mutually exclusive application of Palm Bay Public Radio, Inc. (Palm Bay). We affirm both orders.

I.

A.

In Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945) the Supreme Court held that the FCC must afford a comparative hearing to mutually exclusive applicants for a broadcast license. See id. at 333, 66 S.Ct. at 151; see also 47 U.S.C. § 309(e) (codifying Ashbacker 's hearing requirement). The Court implied, however, that the FCC might adopt administrative regulations such as filing deadlines to allow the orderly processing of such applications. See Ashbacker, 326 U.S. at 333 n. 9, 66 S.Ct. at 151 n. 9. The FCC, in response, has established various "cut-off" rules, so named because applicants filing before the deadlines are cut off from competition against late-filing parties.

The purpose of these rules is to attract all competitive applications for a particular broadcast channel within a fixed and reasonably short time frame, allowing the FCC to satisfy its Ashbacker obligations with a single, fairly prompt comparative hearing. See RKO General Inc. (WNAC-TV), 89 F.C.C.2d 297, 320 (1982), aff'd summarily sub nom. Atlantic Television Corp. v. FCC, No. 82-1263 (D.C.Cir. Oct. 21, 1982). To promote this purpose and to ensure consistent and impartial treatment of applicants, the FCC has insisted on strict enforcement of the rules, even when this causes harsh results in particular cases. See id. at 321 n. 96; Nazarene Theological Seminary Radio Corp. (KTSR), 52 Rad.Reg. (P & F) 559, 563 (Broadcast Bur.1982). We have consistently approved the FCC's hard-nosed rules, see City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 663 (D.C.Cir.1984), so long as "the quid pro quo for stringent acceptability criteria is explicit notice of all applicable requirements," Salzer v. FCC, 778 F.2d 869, 875 (D.C.Cir.1985). We therefore have held that the FCC was arbitrary and capricious when it rejected an application as untimely based on an ambiguous cut-off provision, not clarified by FCC interpretations, if the applicant made a reasonable effort to comply. See, e.g., id.; Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3-4 (D.C.Cir.1987).

The cut-off rules for NCE FM stations are quite straightforward. The FCC has reserved 21 radio channels for NCE FM broadcasting by qualified entities. See 47 C.F.R. §§ 73.501, 73.503. The allocation process begins when someone applies for a new or improved station whose specified signal contours will not conflict with existing NCE FM stations. See id. § 73.509. If this lead application is accepted for filing, the FCC issues a public notice that includes an "A" list and an "A" cut-off date. See id. § 73.3573(e). The "A" list identifies the lead application and any other applications that happen to have been filed by the notice date. The "A" cut-off date is the deadline (which cannot be less than 30 days after the notice) for the filing of any additional applications that are "mutually exclusive" with the "A" list applications, as well as any petitions to deny the "A" list applications. Id.

Under the FCC's longstanding interpretation of its cut-off rules, a potential applicant must file before the "A" cut-off date not only if its proposed signal directly conflicts with an "A" list applicant's signal, but also if its signal indirectly conflicts with an "A" list applicant's--that is, if it conflicts with some other new applicant's signal which in turn conflicts with an "A" list applicant's. See Kittyhawk Broadcasting Corp., 7 F.C.C.2d 153, 154-55 (1967), recon. denied, 10 F.C.C.2d 160 (1967), appeal dismissed sub nom. Cook, Inc. v. United States, 394 F.2d 84 (7th Cir.1968). The "Kittyhawk doctrine" is the Commission's answer to the prospect of what is called a "daisy chain," a series of applications linked one to the other, with only the final one directly linked to the "A" list application that triggered the cut-off process. If the filing deadline for each link of a daisy chain were based on the filing date of the previous link rather than that of the lead application, "[i]n theory, at least, the chain might never end, and any attempt to establish cut-off dates would be nugatory." Id. at 155.

If the FCC receives no filings before the "A" cut-off date, the "A" list applicants are immune from additional competition, and the FCC can act on their proposals. When other applications are filed before the "A" cut-off date, however, they are placed on a "B" list announced in a second public notice that sets a "B" cut-off date, which is the deadline for filing of all petitions to deny the "B" list applications as well as any minor amendments to either "A" or "B" list applications. See 47 C.F.R. § 73.3522(a)(2). Applications surviving this entire process are designated for a comparative hearing; if only one application survives, there is (obviously) no need for such a hearing.

B.

On August 17, 1984, Central Florida Educational Network (Central Florida) applied for a new NCE FM station on Channel 212A in Melbourne, Florida. In accordance with the cut-off rules just described, the FCC issued a public notice on October 12 placing Central Florida on an "A" list and setting November 14 as the "A" cut-off date. One day before that deadline, Palm Bay filed an application that was mutually exclusive with Central Florida's. The Institute was apparently unaware of the public notice and so did nothing during this period. ¹

The normal next step for the FCC was to issue a "B" list naming Palm Bay, and if the "B" cut-off date passed uneventfully, to designate Palm Bay and Central Florida for a comparative hearing. This step was delayed, however, perhaps because the Commission was concluding its extensive proceedings concerning interference between NCE FM radio and Channel 6 television operations. In June 1985, the Commission finally released its Channel 6 Order, which among other things directed that all pending NCE FM applications be amended to conform to the new interference standards by October 1, 1985. See Changes in the Rules Relating To Noncommercial, Educational FM Broadcast Stations, 58 Rad.Reg.2d (P & F) 629, 639 [p 54] (1985). The order was careful to note, however, that "[a]pplications will not be returned to the beginning of the processing line due to the filing of these amendments." Channel 6 Order p 54. Palm Bay amended its application on September 27, 1985, but Central Florida never responded to the order and its application was consequently dismissed for failure to prosecute on March 20, 1986. See 47 C.F.R. §§ 73.3566(b), 73.3568(b). As of early 1986, then, only Palm Bay remained as an applicant for the new NCE FM station; the Institute remained silently on the sidelines.

The FCC still had to issue a "B" list naming Palm Bay and establishing a period for the filing of petitions to deny Palm Bay's application. Instead, on September 22, 1986, the FCC staff mistakenly issued a new "A" list naming Palm Bay and setting October 23, 1986, as an "A" cut-off date for the filing of applications competitive with Palm Bay's. It was at this point that the Institute entered the picture, filing an application that was mutually exclusive with Palm Bay's one day before the new "A" cut-off date. A few months later, in January 1987, the FCC staff realized that it had made a mistake and returned the Institute's application as untimely, explaining that under Kittyhawk, because the Institute's proposal was indirectly linked (by Palm Bay's) to Central Florida's, it should have been filed before Central Florida's cut-off date of November 14, 1984. The Commission denied the Institute's application for review on February 14, 1989. See Florida Inst. of Technology, Inc., 4 F.C.C.Rcd. 1549 (1989).

Two weeks later, the FCC staff finally issued a "B" list naming Palm Bay and setting a "B" cut-off date of April 4, 1989. Before that deadline, the Institute filed a petition to deny Palm Bay's application, attempting to clear the field and thus permit the whole process to begin again--with the Institute as a participant. The Institute contended that Palm Bay's amendment in response to the Channel 6 Order had destroyed Palm Bay's cut-off status and that in any event Palm Bay was not qualified for an NCE FM license. The Commission denied the Institute's petition and granted Palm Bay's application. See Palm Bay Public Radio, Inc., 6 F.C.C.Rcd. 1772 (1991). The Institute appeals both of the Commission's orders.

II.

The Institute wishes to compete for the new NCE FM station that the Commission granted to Palm Bay. It is undisputed, however, that the Institute's application for that station was mutually exclusive with Palm Bay's and thus indirectly with Central Florida's. It is also undisputed that the Institute did not file its application until almost two years after November 14, 1984, the cut-off date for Central Florida and ...