Basic Media, Ltd. v. F. C. C.
| Decision Date | 08 June 1977 |
| Docket Number | 76-1513 and 76-1514,Nos. 76-1271,s. 76-1271 |
| Citation | 182 U.S.App.D.C. 209,559 F.2d 830 |
| Parties | BASIC MEDIA, LTD., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Gaffney Broadcasting Company, Intervenor. BASIC MEDIA, LTD., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. BASIC MEDIA, LTD., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Julian Rush, Counsel, F. C. C., Washington, D. C., for respondents.
Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Richard J. Bodorff, Counsel, F. C. C., and Edward E. Lawson, Atty., Dept. of Justice, Washington D. C., were on the brief, for respondents. Ashton R. Hardy, Gen. Counsel, F. C. C., Washington D. C., at the time the record was filed entered an appearance for respondents. Barry Grossman, Robert B. Nicholson, Samuel R. Simon and Carl D. Lawson, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondent United States of America.
Richard M. Riehl, Washington, D. C., with whom Michael H. Bader and Raymond C. Fay, Washington, D. C., were on the brief, for intervenor.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
Opinion for the court filed by MacKINNON, Circuit Judge.
The present appeal arises from three decisions of the Federal Communications Commission regarding FM radio licensing in and around Gaffney, South Carolina and Asheville, North Carolina. Basic Media, Ltd., appeals from the Commission's renewal of the FM-license of WAGI-FM (Gaffney, South Carolina, with broadcast tower in Forest City, North Carolina) (No. 76-1513), granting of an FM-license to a concern in Waynesville, North Carolina (No. 76-1514) (denial of reconsideration), and denial of Basic Media's request for an FM-license for Asheville, North Carolina (No. 76-1271) (denial of reconsideration). All three of these petitions revolve around the same issue: whether substantial evidence supported the Commission's decision to renew the existing FM-license for WAGI-FM, and, having granted the WAGI renewal to refuse to grant an exception to the 65-mile "short-spacing" rule so that Basic Media's proposed station could operate from Asheville, North Carolina, which is within 65 miles of WAGI's broadcast tower. This appeal is taken pursuant to 47 U.S.C. § 402(b) (1970). 1
WAGI-FM has been broadcasting since 1959 from its tower midway between Forest City, North Carolina, and Gaffney, South Carolina. In 1970, the FCC granted approval for WAGI-FM to relocate its city of identification from Forest City to Gaffney while leaving its transmitter in Forest City. In re Forest City, North Carolina, and Gaffney, South Carolina, 26 FCC 2d 601 (1970). Had the transmitting tower moved to Gaffney, Basic Media's proposed station in Asheville, North Carolina, would have been outside the 65-mile limit. Alternatively, had WAGI-FM's 1975 request to renew been denied entirely, Basic Media would not be faced with the short-spacing problem. These two issues are really aspects of the same question: whether the Commission's decision to continue WAGI-FM's broadcasting arrangement should be sustained.
Basic Media did not participate in the 1970 decision permitting WAGI-FM's bifurcated broadcasting situation. The only issue it can now raise is whether, given that situation, WAGI-FM's petition to renew its license should be granted. On the record before the Commission, there was substantial evidence to grant the renewal (J.A. 216). Basic Media proposed that its service out of Asheville, North Carolina, would better serve the listenership currently served by WAGI-FM.
From the outset, Basic Media has a difficult case to make out because of the listenership numbers. If the WAGI-FM broadcast antenna were moved to Gaffney, the Commission found there would be a decrease in North Carolina listeners from 715,082 to 152,607 (J.A. 124). The increase in South Carolina listenership would only be from 288,073 to 338,434 (id.). All Basic Media can assert in response is that it would provide a North Carolina listenership of 152,633 (J.A. 125), but that would overlap at least in part the North Carolina listenership remaining for WAGI-FM. Hence, granting the Basic Media request would decrease the public served by over half a million persons.
In an attempt to overcome the strong persuasiveness of the numbers argument, Basic Media tried to demonstrate that the programming quality of WAGI-FM did not adequately serve the North Carolina listeners. WAGI-FM admittedly directs its programming to the needs and interests of the people of Cherokee County, South Carolina, in which is located its city of license, Gaffney, South Carolina. That alone is not proof, however, that it has ignored the needs and interests of the North Carolina listeners. The Commission found that many North Carolina listeners had grown accustomed to WAGI-FM, and that serious disruption would result from its replacement (J.A. 125-26).
Most importantly, however, the Commission is itself the best judge of an issue so incapable of quantification as quality of service, and of compliance with its own guidelines (see Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971)). In the absence of documentation of some specific failure to serve the actual needs of North Carolina listeners, rather than a general allegation that a station with a South Carolina city of license cannot adequately serve North Carolinians, the judgment of the Commission (J.A. 216, 220) must be affirmed.
Basic Media argues in the alternative that, even if the WAGI-FM license remains unchanged, the Commission ought to dispense with the 65-mile rule in this case. If the Commission would consider such an exception, Basic Media contends that it could then argue for the desirability of its own licensing at Asheville, North Carolina, rather than the FM-station proposed for Waynesville, North Carolina. The Commission had excluded Basic Media from consideration in the Waynesville hearing because of the short-spacing problem.
Any rule of general applicability will involve particular cases of hardship for which an agency would be empowered to make individual dispensations. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). When an agency begins to grant exceptions in certain cases, however, interests represented in other cases can ask a court to review the denial of an exception as arbitrary in light of the agency's past practice. A different case is presented where an agency has made a general rule from which it has never deviated. Preserving the integrity of a general rule then takes on increased importance, if only because the certainty and administrative ease that accompany consistent application increase with each additional instance. "In this manner, one of the foremost advantages of rulemaking the formulation and effectuation of agency policy with a minimum expenditure of time and resources will not be undermined by the necessity for continuous case-by-case adjudication." Industrial Broadcasting Co....
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