Coalition for Noncommercial Media v. Fed Commun. Comm'n, 00-1253

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation249 F.3d 1005
Docket NumberNo. 00-1253,00-1253
Parties(D.C. Cir. 2001) Coalition for Noncommercial Media, Petitioner v. Federal Communications Commission and United States of America, Respondents Western New York Public Broadcasting Association, Intervenor
Decision Date01 June 2001

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

Jared S. Sher argued the cause for petitioner. On the briefs were David E. Honig, John C. Quale and Mark C. Del Bianco.

James M. Carr, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, A. Douglas Melamed, Acting Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson and Adam D. Hirsh, Attorneys. Catherine G. O'Sullivan, Attorney, entered an appearance.

Robert A. Woods and Malcolm G. Stevenson were on the brief for intervenor Western New York Public Broadcasting Association. Lawrence M. Miller entered an appearance.

Before: Edwards, Chief Judge, Williams and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge:

The Coalition for Noncommercial Media, a nonprofit organization, challenges a Federal Communications Commission order swapping the status of two television channels licensed to the Western New York Public Broadcasting Association ("the Association"). As a result of the swap, Channel 17, previously unreserved, became reserved for non-commercial use and Channel 23, previously reserved, ceased to be. (The Commission allots a digital channel to accompany each analog channel,1 and its order effected similar switches for the Association's digital channels.) Pinning standing to the status of its members as viewers of these channels, the Coalition raises a host of claims. We find the appeal timely: The Coalition's appeal properly falls under 47 U.S.C. 402(a) and its 60-day limit (see 28 U.S.C. 2344), rather than under 402(b) and its 30day limit (see 402(c)), as the Commission urges. But because the issues that the Coalition preserved for review lack merit, we affirm.

* * *

The Commission began assigning television channels to geographic regions almost fifty years ago. To encourage the development of educational programming, the Commission reserved some channels for noncommercial use, identifying such channels with an asterisk in what is now called the Table of Allotments. See In re Amendment of Section 3.606 of the Commission's Rules and Regulations, 41 F.C.C. Reports 148, 158-64, 228 & n.60 p p 33-49, 253(a) (1952); see also 47 CFR 73.606.

To modify a channel assignment, a broadcast licensee must apply to the Commission normally thereby exposing itself to competing license applications. In the case of some relatively simple exchanges, however, the Commission has taken the view that the application of this general precept might unjustifiably discourage beneficial exchanges. To address this concern, it adopted in 1986 a rule expressly permitting a commercial and a noncommercial broadcaster to petition to exchange channels without facing competing applications for the licenses. See In re Amendments to the Television Table of Assignments to Change Noncommercial Educational Reservations, 59 Rad. Reg. 2d (P & F) 1455 (1986); see also 47 CFR 1.420(h).

The Association operates two noncommercial television stations in Buffalo, New York--WNEQ-TV on Channel 23, which was reserved for noncommercial educational use, and WNED-TV on Channel 17, which was unreserved. In May 1998, the Association petitioned for a rulemaking to amend the Table of Allotments to switch the two channels' status. See Petition for Rule Making, Joint Appendix ("J.A.") at 1. The Association stated that it would provide "a significantly enhanced programming operation at Station WNED-TV", which it claimed was "the more powerful of the two stations", and would "derive substantial new and necessary financial support for an endowment fund for its Station WNED-TV operations through assignment of its facility on unreserved Channel 23 to a commercial entrepreneur." Id. at 3-4. The Commission's Mass Media Bureau issued a Notice of Proposed Rule Making on the Association's proposal and received comments from the Coalition, among others. Finding that the proposed change in reservation status would improve noncommercial service in Buffalo and would not eliminate any noncommercial channel reservations, the Bureau granted the petition and modified the television licenses under 316(a) of the 1934 Communications Act to reflect the change in July 1999. See In re Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations and Section 73.622(b), Table of Allotments, Digital Television Broadcast Stations (Buffalo, New York), 14 F.C.C.R. 11,856, 11,859, 11,861-62, 11,863 p p 9, 15, 19 (Mass Media Bur. 1999) ("Bureau Order"). The Commission denied the Coalition's application for review. See In re Amendment of Section 73.606(b), Table of Allotments, Television Broadcast Stations and Section 73.622(b), Table of Allotments, Digital Television Broadcast Stations (Buffalo, New York), FCC 00-130 (Memorandum Opinion and Order April 19, 2000), J.A. at 188 ("Order"). The Coalition now seeks judicial review.

* * *

The Commission published its order on May 4, 2000. See 65 Fed. Reg. 25,865 (2000). The Coalition filed its petition for review on June 15, 2000. Thus the Coalition's petition was timely if it belongs under 402(a)'s 60-day deadline but not if it belongs under 402(b)'s 30-day limit. The Coalition's opening brief oddly asserted that our jurisdiction depended on 402(b)(6), a point on which the Commission pounced. But we decide for ourselves how the petition should be characterized. See Freeman Engineering Associates, Inc. v. FCC, 103 F.3d 169, 177 (D.C. Cir. 1997).

For 402(b)(6) to apply, the Coalition must show that it "is aggrieved or [its] interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1) to (4) and (9) of this subsection." 47 U.S.C. 402(b)(6) (emphasis added); see also Waterway Communications Systems, Inc. v. FCC, 851 F.2d 401, 403 (D.C. Cir. 1988). The Commission's order, however, neither grants nor denies any application because the Association did not submit one; the Association petitioned for a rulemaking to modify the relevant tables reflecting channel assignments. It did not seek a modification of its licenses.

The matter is complicated by the fact that, even without a request, the Commission did modify the licenses. Had the Association sought the modification, the case would presumably fall under 402(b)(6), because that subsection crossreferences 402(b)(2), involving applications to modify an "authorization" specified in subsection (1), which includes "station license[s]." This would be true even if the Association did not identify its request as an "application." In fact it made no such request in any form.

But we are still not out of the woods. In Tomah-Mauston Broadcasting Co. v. FCC, 306 F.2d 811 (D.C. Cir. 1962), we held that a Commission order denying a petition to stay and revoke a party's construction permit to build a radio broadcast station before it went on the air was reviewable under 47 U.S.C. 402(b)(6) as an order "ancillary" to the grant of the construction permit. Id. at 812. In effect the petitioner was directly seeking to reverse the grant. See also id. (observing that Commission order was "in substance a re-affirmation of its earlier grant"). But we have never extended TomahMauston. In Freeman Engineering Associates, Inc. v. FCC, 103 F.3d 169 (D.C. Cir. 1997), because grant of a "pioneer's preference" came close to assuring the grantee a license, the Commission claimed that appeal from such a grant belonged under 402(b). Distinguishing Tomah-Mauston, we held "that the Commission's denial of a pioneer's preference is neither a denial of a license nor is it ancillary to such," stressing that to actually receive the grant the pioneer must also be "otherwise qualified." Id. at 177-78. Thus even an application that strongly foreshadows the grant of a 402(b) application is not enough. But see WHDH, Inc. v. United States, 457 F.2d 559, 561 (1st Cir. 1972) (finding 402(b) applicable under Tomah-Mauston to appeal attacking grant of "program test authority," which "is a step short of the granting of a station license"). That the Commission leapt forward and on its own hook eliminated the need for such an application does not create an application where none was made. We thus find the Coalition's appeal proper under 402(a) and timely under the 60-day limit.

* * *

The Coalition makes several arguments before us that it did not raise with the Commission. See 47 U.S.C. 405. Section 405(a) generally dispenses with any need for a petition for reconsideration with the Commission, but not where the party seeking review raises a claim "upon which the Commission ... has been afforded no opportunity to pass." Although this exhaustion provision does not require that the "opportunity be afforded in any particular manner, or by any particular party," Office of Communication of the United Church of Christ v. FCC, 465 F.2d 519, 523 (D.C. Cir. 1972), the argument does have to have been meaningfully raised by someone. See Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 681 (D.C. Cir. 1983); Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 739 (D.C. Cir. 1976).

We find that three of the Coalition's claims have been waived under 47 U.S.C. 405. First, the Coalition argues that when the Commission swapped the channel reservations in the relevant Tables of Allotments and modified the Association's licenses in the same proceeding, it deviated without explanation from past practice. See Greater Boston...

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