Coalition for Preservation of Hispanic Broadcasting v. F.C.C.
| Decision Date | 14 May 1991 |
| Docket Number | 88-1588 and 88-1596,87-1299,88-1564,87-1287,Nos. 87-1285,s. 87-1285 |
| Citation | 931 F.2d 73 |
| Parties | , 59 USLW 2656 COALITION FOR THE PRESERVATION OF HISPANIC BROADCASTING, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Spanish International Communications Corp., Station Representatives Association, Inc., Fouce Amusement Enterprises, Inc., Univision, Inc., Intervenors. HISPANIC BROADCASTING SYSTEMS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Spanish International Communications Corp., Bahia de San Francisco Television Co., Seven Hills Television Co., Station Representatives Association, Inc., Fouce Amusement Enterprises, Inc., Univision, Inc., Intervenors. HISPANIC BROADCASTING LIMITED PARTNERSHIP, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Spanish International Communications Corp., Bahia de San Francisco Television Co., Seven Hills Television Co., Station Representatives Association, Inc., Univision, Inc., Intervenors. Susan M. JARAMILLO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Seven Hills Television Co., Univision Holdings, Inc., et al., Intervenors. TVL CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Univision Holdings, Inc., et al., Intervenor. The COALITION FOR the PRESERVATION OF HISPANIC BROADCASTING, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Univision Holdings, Inc., et al., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Notices of Appeals from an Order of the Federal Communications Commission.
Morton L. Berfield, with whom Lewis I. Cohen and Roy W. Boyce were on the brief, for appellant Hispanic Broadcasting Ltd. Partnership in No. 87-1299.
Stephen A. Sharp for appellant Hispanic Broadcasting System in No. 87-1287. Martin E. Firestone also entered an appearance for appellant.
Katrina Renouf, with whom Margot Polivy was on the brief for appellant Susan Jaramillo in No. 88-1564.
Bruce A. Eisen was on the brief for appellant Coalition for the Preservation of Hispanic Broadcasting in Nos. 87-1285 and 88-1596.
James P. Riley and Robert A. DePont were on the brief for appellant TVL Corp. in No. 88-1588.
Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel and Sue Ann Preskill, Counsel, F.C.C. were on the brief for appellee in Nos. 87-1285, 87-1287, 87-1299, 88-1564, 88-1588 and 88-1596.
Linda K. Smith and David H. Solomon entered appearances for intervenor Station Representatives Ass'n, Inc. in Nos. 87-1285, 87-1287 and 87-1289.
L. Andrew Tollin and Leon T. Knauer entered appearances for intervenor Seven Hills Television Co. in Nos. 87-1285, 87-1287, 87-1289, 88-1564 and 88-1588.
N. Frank Wiggins entered an appearance for intervenor Fouce Amusement Enterprises, Inc. in Nos. 87-1285, 87-1287 and 87-1289.
Richard E. Wiley, John C. Quale, James R. Bayes and Diane Z. Goldman entered appearances for intervenors Spanish Intern. Communications and Univision Holdings, Inc., et al. in Nos. 87-1285, 87-1287, 87-1289, 88-1588 and 88-1596.
John L. Tierney, Richard F. Swift and Ann Bavender entered appearances for intervenor Bahia de San Francisco Television Co. in No. 87-1287.
Before MIKVA, Chief Judge, WALD, EDWARDS, RUTH BADER GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
This is an appeal from a Federal Communications Commission decision granting a conditional renewal of several television licenses. We deny the challenges of two petitioners for failure to exhaust administrative remedies and those of two others for want of standing. 1
As the panel opinion presented the facts in detail, see Coalition for the Preservation of Hispanic Broadcasting v. FCC, 893 F.2d 1349 (D.C.Cir.1990), we provide only a summary. Spanish International Communications Corporation and Bahia de San Francisco (collectively "Spanish International") held six TV licenses, the first acquired by Spanish International's corporate predecessors in 1961. In January 1986 an administrative law judge found that Spanish International's relations with certain Mexican interests violated a Communications Act provision forbidding alien ownership of broadcasting stations. See 47 U.S.C. Sec. 310(b). Facing a risk that this issue would doom its efforts to secure license renewal, Spanish International negotiated a settlement agreement under which, immediately upon renewal, it would sell the stations to Hallmark Cards, Inc. In October 1986 the Commission's Review Board approved this settlement and conditionally renewed Spanish International's licenses.
At about the time the Review Board acted, petitioners Hispanic Broadcasting Systems, Inc. ("HBS") and Hispanic Broadcasting Limited Partnership filed applications for the licenses and asked the Commission to reverse the Review Board. As the filings came years after the relevant FCC "windows" had closed, the Commission rejected the applications as untimely. Nonetheless, it permitted petitioners to appear before it as amici and considered their argument that the renewal and transfer of Spanish International's licenses violated the FCC's "Jefferson Radio " policy, which prohibits any licensee from transferring a broadcast station at full value while a proceeding that might lead to license forfeiture is pending. See Jefferson Radio Co. v. FCC, 340 F.2d 781, 783 (D.C.Cir.1964). The Commission rejected this argument and affirmed the Review Board's approval of the transfer agreement and license renewal.
Two of the challengers are prospective applicants, HBS and the Partnership, and three, the Partnership (in a second capacity), Susan Jaramillo and the Coalition for the Preservation of Hispanic Broadcasting, are purportedly dissatisfied viewers. We hold that (1) HBS and the Partnership may not obtain judicial review because they did not timely invoke the administrative procedures required of prospective applicants; and (2) the viewers do not have standing to sue because they do not fall within the zone of interests contemplated by Sec. 310(b).
HBS and the Partnership seek two kinds of relief. First, they ask us to overturn the FCC's decision to reject their applications as untimely. We deny this relief for the reasons stated by the panel opinion. 893 F.2d at 1357-59. That resolved, we turn to whether such untimely applicants may now, in the hope of vacant channels and new filing opportunities, ask this court to overturn the FCC's approval of the renewal and transfer agreement.
Both panel opinions and, upon rehearing, the litigants themselves treated this issue as a matter of Article III standing: Are the prospects of these latecomers' winning the licenses (if they were vacant) serious enough that they were truly harmed by the Commission's rejection of claims that might have led to nonrenewal and vacancy? See generally Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Yet, partly because the applicant petitioners' untimeliness foreclosed a Commission assessment of their qualifications, the question cannot be answered without guesswork. As petitioners' tardiness also entailed a failure to exhaust administrative remedies, however, we can resolve the case on non-constitutional grounds. See Coker v. Sullivan, 902 F.2d 84, 88 (D.C.Cir.1990) (); Moore v. United States House of Representatives, 733 F.2d 946, 954 n. 39 (D.C.Cir.1984) () (internal quotes omitted). While the government did not specifically raise the exhaustion issue, the doctrine concerns economy not only of agency but also of judicial resources, see Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466-67, 45 L.Ed.2d 522 (1975), and accordingly this court may in its discretion raise the issue on its own. See, e.g., Dettmann v. United States Dep't of Justice, 802 F.2d 1472, 1476-77 & n. 8 (D.C.Cir.1986); Power Plant Division, Brown & Root, Inc. v. OSHRC, 673 F.2d 111 (5th Cir.1982); Brown v. Fauver, 819 F.2d 395, 398-99 (3d Cir.1987).
The judicial review provision of the Communications Act, 47 U.S.C. Sec. 402(b), authorizes disappointed "applicant[s]" and, more generally, "any ... person who is aggrieved or whose interests are adversely affected" by a Commission licensing order to sue for relief in this court. Yet even "aggrieved" persons must comply with prescribed administrative procedures. See Spanish International Broadcasting Co. v. FCC, 385 F.2d 615 (D.C.Cir.1967); Red River Broadcasting Co. v. FCC, 98 F.2d 282 (D.C.Cir.1938); see also Valley Telecasting Co. v. FCC, 336 F.2d 914 (D.C.Cir.1964); Springfield Television Broadcasting Corp. v. FCC, 328 F.2d 186 (D.C.Cir.1964). Indeed, Sec. 405 of the statute itself requires aggrieved persons who were not parties to the agency proceedings, as one prerequisite to judicial review, to petition the Commission for reconsideration of disputed orders. 2 In general, failure to exhaust administrative remedies bars judicial review of FCC orders.
Spanish International illustrates the exhaustion principle at work in the licensing context. International Panorama TV sought a license to construct a new television station. A competitor, Spanish International (apparently the same company as the beneficiary of today's ruling), twice submitted petitions attacking International Panorama's application, invoking the grounds it afterwards raised on appeal. 3 Because both petitions were untimely, the FCC refused to admit Spanish International as a party to the proceedings....
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