Chinese Voice of Golden City v. Fed. Commc'ns Comm'n

Decision Date30 November 2021
Docket Number20-1514
PartiesChinese Voice of Golden City, Appellant v. Federal Communications Commission, Appellee Silver State Broadcasting, LLC, Intervenor
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal of an Order of the Federal Communications Commission

Before: Tatel, Pillard and Wilkins, Circuit Judges.

JUDGMENT

PER CURIAM.

This appeal from an order of the Federal Communications Commission was considered on the basis of the appendix submitted by the parties and the presentations in the briefs. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j). The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated below, it is

ORDERED AND ADJUDGED that the petition for review be DENIED.

Appellant Chinese Voice of Golden City moved its radio broadcast tower to a site two miles away from where it was licensed to operate. The FCC held that Chinese Voice's failure to broadcast from its licensed site for twelve consecutive months terminated the license as a matter of law. Chinese Voice challenges the Commission's order as arbitrary and capricious. Because the decision is reasonable and reasonably explained, we deny the petition.

If a broadcast station "fails to transmit broadcast signals for any consecutive 12-month period," its license automatically expires at the end of the twelve months. 47 U.S.C. § 312(g). In Eagle Broadcasting Group v. FCC, 563 F.3d 543 (D.C Cir. 2009), we affirmed the FCC's longstanding rule that transmissions from an unauthorized location do not constitute "broadcast signals" for purposes of § 312(g)-indeed, although deference to the Commission sufficed to reject Eagle's challenge, we suggested the statute required the FCC's approach. Id. at 553 ("[I]t strains credulity to suggest that the reference to 'broadcast signals' in § 312(g) includes unauthorized and unlicensed transmissions.") (emphasis in original). We recently reaffirmed that analysis by judgment. See Kingdom of God Inc. v. FCC, 719 Fed.Appx. 19, 20 (D.C. Cir. 2018) (Mem.).

A straightforward application of Eagle Broadcasting resolves this appeal. Chinese Voice by its own admission broadcast from an unauthorized location more than two miles from its licensed site for about fifteen months, from January 2018 to May 2019. See J.A. 11, ¶¶ 8-10 (statement of Chinese Voice's President). Its transmissions during that time thus did not count as "broadcast signals" for purposes of § 312(g). Eagle Broadcasting, 563 F.3d at 552-53. Because Chinese Voice failed to transmit broadcast signals for a consecutive twelve-month period, it forfeited its license.

Chinese Voice offers no ground for distinguishing Eagle Broadcasting. Its principal argument is that Eagle Broadcasting was wrongly decided and we should reverse it. See Pet'r Br. at 26-32; Reply Br. at 1-17. But that decision binds us, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc), has been applied in other, similar circumstances, see Kingdom of God, 719 Fed.Appx. at 20, and appears to be correct.

Chinese Voice also focuses on a 256-foot gap between its licensed broadcast location and the location it used before December 2017 and again after May 2019, which it argues is de minimis. That focus is misplaced. As both the Media Bureau's January 15, 2020, Opinion and the Full Commission's November 25, 2020, Opinion observed, Chinese Voice's deliberate fifteen-month broadcast from a location two miles away required the FCC to terminate the license regardless of whether Chinese Voice's other violation was de minimis. See, e.g., J.A. 208 ("[T]he Station's license expired as a matter of law . . . because the station did not operate from an authorized facility from at least January 2018 until May 2019, the time it was operating at the East Charleston Boulevard Site [two miles away], regardless of its operations at the West Owens Avenue Site [256 feet away]."). Although the Media Bureau and Commission at times seem to have referenced a period of operation at the unauthorized site nearer the licensed location in calculating the expiration date, see J.A. 29, 59, 203, the reasoning and record establish that fifteen months of broadcasting from the site two miles away terminated the license by operation of law as of January 2019 at the latest, see J.A. 62, 208. In any event, Chinese Voice did not object to the Commission's specification of the date its license expired, but to the expiration holding itself. Chinese Voice's admitted and purposeful two-mile violation is a clear and sufficient basis on which to affirm the FCC's order.

Chinese Voice's other arguments also fail. First, we reject its claim that it should have been permitted to modify its license under 47 C.F.R. § 73.1690(c)(11). Chinese Voice argues that section 73.1690(c)(11), which allows de minimis license modification, applies here because it falls under Subpart H: Rules Applicable to All Broadcast Stations. When it denied the modification request, however, the FCC pointed to the provision identifying rules applicable to low power FM stations like Chinese...

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