Crawford v. FCC
| Decision Date | 05 August 2005 |
| Docket Number | No. 04-1031.,04-1031. |
| Citation | 417 F.3d 1289 |
| Parties | Charles CRAWFORD, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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Gene A. Bechtel argued the cause and filed the briefs for petitioner.
Stanley R. Scheiner, Attorney, Federal Communications Commission, argued the cause for respondents. With him on the brief were Robert H. Pate, Assistant Attorney General, Catherine G. O'Sullivan and Andrea Limmer, Attorneys, John A. Rogovin, General Counsel, Austin C. Schlick, Deputy General Counsel, and Daniel M. Armstrong, Associate General Counsel. Gregory M. Christopher, Counsel, entered an appearance.
Before: RANDOLPH, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Charles Crawford petitions for review of the Federal Communications Commission's dismissal of two proposals he filed to amend the Commission's Table of Allotments for FM radio channels. Crawford's principal contention is that he lacked notice that his proposals could be precluded by another applicant's earlier-filed submission. With respect to one of Crawford's proposals, we dismiss his petition as moot. With respect to the other, we conclude that Crawford received adequate notice and therefore deny the petition.
The Federal Communications Commission (FCC) uses a two-stage process to allocate commercial FM radio frequencies to broadcasters. First, a frequency must be allocated to a particular community in the FM Table of Allotments. Second, a prospective broadcaster may then apply for a license or construction permit for that frequency in that community.
The Table of Allotments can be amended only by rule. See Amendment of Part 1, Subpart C (Rulemaking Proceedings), Rules of Practice and Procedure, 39 Fed. Reg. 44,020, 44,020 (Dec. 20, 1974); see also 47 C.F.R. § 1.420. The process begins with an FCC notice of proposed rulemaking (NPRM), often in response to a broadcaster's petition. The notice sets forth the proposed change — for instance, "allot channel 229C at Houston" — and announces periods for initial comments and reply comments.1 During the initial comment period, the FCC accepts comments on the initial proposal. It also accepts counterproposals that are "mutually exclusive" with the initial proposal.2 See 47 C.F.R. § 1.420(d); see also, e.g., Implementation of BC Docket No. 80-90 to Increase the Availability of FM Broadcast Assignments, 5 F.C.C.R. 931, ¶ 4 n. 5 (1990) ("Implementation of BC Docket No. 80-90").
Because one amendment to the Table of Allotments may be possible only if another amendment is made, broadcasters commonly submit proposals or counterproposals that include multiple amendments. In a given docket, the FCC considers the initial proposal and any counterproposals that are filed during the initial comment period. Also treated as counterproposals are any ostensibly freestanding proposals that conflict with the initial proposal or with other counterproposals — as long as they are filed before the end of the initial comment period. See, e.g., Notice of Proposed Rule Making, Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations, 17 F.C.C.R. 5944, 5948 (2002); Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations, 16 F.C.C.R. 14,085, 14,085-86 (2001); see also 47 C.F.R. § 1.420(d).
After the initial comment period, any proposals that are mutually exclusive with those considered in the proceeding are "cut off" from consideration pursuant to 47 C.F.R. § 1.420(d), which states: "Counterproposals shall be advanced in initial comments only and will not be considered if they are advanced in reply comments." This means that during the reply comment period, comments can be filed on counterproposals submitted during the initial comment period — but further counterproposals cannot be filed. See id.
The impetus for this kind of cutoff rule derives from Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), which held that mutually exclusive broadcast applications must receive a comparative hearing. See id. at 330-31, 66 S.Ct. 148. As this Circuit explained in Ranger v. FCC, 294 F.2d 240 (D.C.Cir. 1961):
Obviously, if all valid conflicting pending applications must receive a comparative hearing, late filings create procedural difficulties. Particularly is this so in view of what is described in this litigation as a chain reaction. Let us assume three towns, A, B and C, fifty miles apart in a straight geographical line. Application for a broadcast station at A is made. Grant of that application would preclude a station at B on the same or an adjacent channel; it would not affect the possibility of a station at C. Before the application for A has been acted upon, an applicant files for a license at B and asks for a comparative hearing with A. A grant in B would preclude a station at C. Therefore potential applicants for C must file in the A-B case in order to protect their rights. Theoretically this reaction could go on indefinitely and could eventually involve every potential broadcast-station situs in the United States.
Id. at 243. And as we further noted in Florida Institute of Technology v. FCC, "if the filing deadline for each link of a daisy chain" of applications like that described above "were based on the filing date of the previous link rather than that of the lead application, `in theory, at least the chain might never end.'" 952 F.2d 549, 550 (D.C.Cir.1992) (quoting Kittyhawk Broadcasting Corp., 7 F.C.C.2d 153, 155 (1967)) (second alteration in original).
By setting a firm deadline for the filing of conflicting proposals, the FCC's cutoff rule prevents this kind of daisy chain of applications from going on indefinitely. This circuit has repeatedly invoked the daisy-chain rationale in upholding the FCC's application of cutoff rules in different broadcast contexts. See, e.g., Florida Inst. of Technology, 952 F.2d at 549-52; Ranger, 294 F.2d at 243-44. We have not, however, previously addressed such rules in the context of an FM allotment rulemaking proceeding.
On July 13, 2000, NationWide Radio Stations petitioned the FCC to allot FM channel 233C3 at Quanah, Texas. On August 18, the FCC issued an NPRM proposing this change and setting October 10, 2000 as the deadline for initial comments and October 25, 2000 as the reply comment deadline. See Notice of Proposed Rule Making, Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations, 15 F.C.C.R. 15,809, 15,812-13 (2000) ("Quanah NPRM"). It also set out the FCC's rules for counterproposals, including the cutoff rule. Id. at 15,813.
On October 10, 2000, the last day of the initial comment period and thus the last day to submit a counterproposal, a group of broadcasters (the "Joint Parties") filed a counterproposal that included twenty-two changes to the Table of Allotments. This counterproposal conflicted with NationWide's proposal for Quanah because it proposed allotting the same channel at a nearby location. Due to a clerical error, the FCC did not place the Joint Parties' counterproposal in its database or otherwise make it public.3
On May 18, 2001, Charles Crawford — the petitioner in this case — asked the FCC to allot channel 257C2 at Benjamin, Texas. One week later, Crawford filed a second proposal, seeking to allot channel 249C3 at Mason, Texas. Each of these proposals conflicted with a piece of the Joint Parties' counterproposal in the Quanah proceeding, and so should have been precluded under the FCC's cutoff rule. The FCC, however, mistakenly docketed Crawford's proposals and issued an NPRM for each.
During the initial comment period for Crawford's proposals, the FCC realized that it had not given notice of the Joint Parties' counterproposal. Thereafter, it issued such notice. The notice stated that the FCC would consider the counterproposal as part of the Quanah proceeding, and it set a deadline for reply comments.
On June 14, 2002, the FCC Media Bureau's Audio Division dismissed both of Crawford's petitions as precluded by the Joint Parties' counterproposal. The Bureau explained that even though the counterproposal had not been publicized immediately, it had been submitted before the end of the initial comment period for the Quanah proposal, and it therefore precluded late-filed conflicting proposals. Crawford petitioned for reconsideration, claiming principally that the Quanah NPRM provided him with insufficient notice that his proposals could be precluded by a proposal as complex as that of the Joint Parties. After this petition was denied, Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations, 18 F.C.C.R. 103, 106 (2003) ( ), Crawford submitted an application for review by the full Commission. The FCC denied that petition, Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations, 19 F.C.C.R. 470, 470-71 (2004) ("Commission Mem. Op. & Order"), and Crawford petitioned for review in this court.
Before confronting the merits of Crawford's petition for review, we must consider whether this case is moot. As Crawford notes, the Joint Parties have withdrawn the piece of their proposal that conflicts with his proposed Benjamin allotment. See Pet'r Reply Br. at 7-8. For this reason, Crawford's brief acknowledged that "there is no longer an active controversy" with respect to the Benjamin proposal. Id. at 8; see also id. at 8-9 (). Although Crawford sought to resurrect his Benjamin claim at oral argument, his initial position was correct.
Crawford's claim regarding the Mason proposal may also soon become moot. For reasons unrelated to the issues before this court, the Media Bureau has dismissed the Joint Parties'...
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