Committee for Open Media v. F. C. C., 73-2068
| Decision Date | 22 January 1976 |
| Docket Number | No. 73-2068,73-2068 |
| Citation | 177 U.S.App.D.C. 376,543 F.2d 861 |
| Parties | COMMITTEE FOR OPEN MEDIA, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Chronicle Broadcasting Company, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Charles M. Firestone, Washington, D. C., with whom Ellen S. Agress, New York City, was on the brief, for appellant.
Joseph A. Marino, Associate Gen. Counsel, F. C. C., Washington, D. C., with whom Daniel R. Ohlbaum, Acting Gen. Counsel, and Louise A. Sunderland, Counsel, F. C. C., Washington, D. C., were on the brief, for appellee. John W. Pettit, Gen. Counsel, F. C. C., Washington, D. C., at the time the record was filed, Ashton R. Hardy, Gen. Counsel, F. C. C., and R. Michael Senkowski, Counsel, F. C. C., Washington, D. C., also entered appearances for appellee.
Robert L. Heald, Edward F. Kenehan and Marjorie S. Reed, Washington, D. C., were on the brief for intervenor.
John B. Summers, Washington, D. C., lodged a brief on behalf of National Association of Broadcasters as amicus curiae.
Before LUMBARD, * Senior Circuit Judge for the Second Circuit, and McGOWAN and ROBINSON, Circuit Judges.
The Communications Act of 1934 1 empowers the Federal Communications Commission to grant licenses for operation of broadcasting stations 2 for maximum terms of three years only. 3 Ordinarily, then, licensees must apply for renewal not less frequently than every third year as existing licenses are about to expire. When a substantial question about renewal arises, however, the Commission designates the application for an evidentiary hearing 4 and, as a result, the matter may not be resolved within the three-year period following the terminal date of the license. In the latter event, the Commission does not require the licensee to submit another application on or before expiration of that period. Rather, the Commission continues the license in effect until the renewal proceeding has run its course, 5 and renews the license, if at all, for some ensuing period not exceeding three years.
On this appeal, the Committee for Open Media (COM) challenges the legality of the Commission's dispensation of a second renewal application in those circumstances. Finding no error in adherence to the practice in the proceeding under review, we affirm the orders from which the appeal emanates.
On September 1, 1968, Chronicle Broadcasting Company filed an application with the Commission for renewal of its license, expiring December 1, 1968, for operation of Station KRON-TV in San Francisco, California. 6 On March 20, 1969, the Commission designated the application for an evidentiary hearing; 7 on March 1, 1971, the hearing examiner 8 issued an initial decision in favor of the application; 9 and on May 9, 1973, the Commission rendered its decision renewing Chronicle's license through December 1, 1974. 10
That the renewal was not granted for a full three-year term through May, 1976 is the consequence of Commission policy by which all licenses in a particular geographical area are made to expire at the same time. 11 To preserve this uniformity when the Commission gives the application more than summary consideration, renewal typically is for a period of less than three years; it extends just to the point at which licenses in the applicant's geographical area will next terminate. Accordingly, Chronicle's application was approved only through December 1, 1974, the date on which all California licenses were to come to an end. 12
Earlier during the proceeding, on November 1, 1971 more than three years after Chronicle's renewal application was filed, and while it was pending in hearing status COM had filed a petition to deny the application. 13 On May 23, 1973, two weeks after Chronicle won renewal, the Commission dismissed COM's petition "because of its lack of specificity and the absence of supporting affidavits." 14
COM petitioned for reconsideration, reminding the Commission that Chronicle did not file a fresh renewal application at the end of the three-year period following expiration of its license in 1968, 15 and arguing that the Commission had violated Section 307(d) of the Act 16 because it had granted a license for more than three years, 17 and for the period subsequent to 1971 without a written application therefor. 18 COM also argued that the absence of a second application had prevented particularized objections to renewal, and had effectively immunized Chronicle from scrutiny and competition. These contentions were rejected by the Commission. 19
COM now appeals. 20 Its major claims here are those urged upon the Commission on rehearing. Chronicle has intervened to join the Commission in defense of its orders. 21 We affirm.
COM seeks support for its principal position in Section 307(d) of the Act, providing in relevant part that
(n)o license granted for the operation of a broadcasting station shall be for a longer term than three years . . . . Upon the expiration of any license, upon application therefor, a renewal of such license may be granted from time to time for a term of not to exceed three years . . . . Pending any hearing and final decision on such an application and the disposition of any petition for rehearing pursuant to (42 U.S.C. § 405 (1970)), the Commission shall continue such license in effect. . . . 22
COM correctly observes that this provision limits the Commission's license grants to terms of three years. From this, COM asserts that the 1968 application was alive only from 1968 until 1971, and that Chronicle's license could not be extended beyond 1971 without another application. We think this argument distorts the plain language of the section.
The only time restriction which Section 307(d) imposes is upon the period for which the Commission itself may confer a license. The Commission may not grant an original license "for a longer term than three years," 23 and it must confine any renewal to "a term of not to exceed three years." 24 It is evident, however, that these are proscriptions on Commission awards of licenses, and not inexorable limitations on the duration of the licenses themselves, for "(p)ending any hearing and final decision on" a renewal application "and the disposition of any petition for rehearing . . . the Commission shall continue such license in effect" 25 obviously, beyond the maximum three-year term for which the Commission could award it, if necessary. Thus Congress made specific provision for licenses involved in the renewal process, and unambiguously decreed that they be maintained in operation until "final decision" 26 on the question of renewal. Translating these mandates to the situation at bar, it is seen that, far from the consequences asserted by COM, an extension of Chronicle's license to the point of Commission renewal in 1973 was literally compelled by the language of Section 307(d).
Moreover, that section requires licensees to file renewal applications only "(u)pon the expiration of (a) license." 27 Chronicle filed, in 1968, a timely application for a renewal of its expiring license. Chronicle did not file another application in 1971, but none was required. Chronicle's license did not run out in 1971; Chronicle was still operating the station by virtue of the extension consequent upon the pendency of its renewal application. 28 That extension was conferred by the statute, not by choice of the Commission; the statute is unyielding in its specification that the Commission "shall continue (the) license in effect." 29 Accordingly, we cannot read Section 307(d) as a call for a renewal application by Chronicle in 1971.
In view of the unmistakable import of Section 307(d), resort to its legislative history is hardly necessary. But lest there be some lingering doubt on this score, we summarize the history to show that it comports with our conclusion. Prior to 1946, there was no statutory extension of licenses pending resolution of renewal applications, but the Commission supplied such an extension by regulation. 30 Section 9(b) of the Administrative Procedure Act, enacted in 1946, provided the same kind of extension for licenses generally 31 in order to protect licensees from harm associated with delays in agency action on requests for license renewals. 32
The sentence of Section 307(d) by which Chronicle's license was automatically extended first appeared in the 1952 amendments to the Communications Act. 33 The committee reports and debates are silent as to this provision, but Commission Chairman Coy made a highly significant comment during the hearings: 34
(The bill) provides that pending the conclusion of any hearing and a final determination on an application for renewal . . . and pending the disposition of any petition for rehearing thereon, the Commission shall continue such license in effect. There is no necessity for the addition of this language to the present provisions of section 307(d) since Section 9(d) (sic) of the Administrative Procedure Act already requires just such a continuation of the license pending completion of the renewal proceedings. 35
The ineluctable conclusion from this observation is that Sections 9(b) and 307(d) share an identical purpose protection of licensees from the uncertainties stemming from protracted administrative consideration of applications for license renewals. Indeed, even without Chairman Coy's remark one is led to that conclusion when the texts of the two provisions are compared. And there is no indication in the language or history of either provision that this safeguard is to subsist only for a limited interval. 36
In addition to the unambiguous statutory language and its enlightening legislative history. we are mindful that "(t)he interpretation expressly placed on a statute by those charged with its administration must be given...
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