Eastern Carolinas Broadcasting Co. v. F.C.C.

• Decision Date: 17 May 1985
• Docket Number: No. 84-1174,84-1174
• Citation: 762 F.2d 95
• Parties: EASTERN CAROLINAS BROADCASTING CO., Capital Communications, Inc., Columbia Television Broadcasters, Inc., and Cosmos Broadcasting Corporation, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Clay Broadcasting Company, First Charleston Corporation, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 95

762 F.2d 95

246 U.S.App.D.C. 1

EASTERN CAROLINAS BROADCASTING CO., Capital Communications Inc., Columbia Television Broadcasters, Inc., and Cosmos Broadcasting Corporation, Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Clay Broadcasting Company, First Charleston Corporation, et al., Intervenors.

No. 84-1174.

United States Court of Appeals District of Columbia Circuit.

Argued March 25, 1985.

Decided May 17, 1985.

Appeal from an Order of the Federal Communications Commission.

Kathryn R. Schmeltzer, Washington, D.C., with whom Jeffrey W. Malickson, Ben C. Fisher, Angela J. Campbell, Lee W. Shubert and John J. Duffy, Washington, D.C., were on the brief, for appellants.

David Silberman, Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on the brief, for appellee.

Robert A. Beizer, Washington, D.C., with whom Jane D. Woodfin, Washington, D.C., was on the brief, for intervenors First Charleston Corp., et al.

Frank U. Fletcher, Vincent J. Curtis, Jr. and David G. Rozzelle, Washington, D.C., were on the brief for intervenor Clay Broadcasting Co.

Before WALD, GINSBURG and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In 1983, this court affirmed in nearly all respects two separate orders of the Federal Communications Commission ("FCC" or "the Commission") authorizing the construction of two "tall tower" television transmitters near Florence, South Carolina. We agreed with appellant Eastern Carolinas Broadcasting Corporation (doing business as WPDE), however, that the Commission had not adequately explained why the alleged cumulative impact on WPDE of the otherwise separate proposals did not warrant a hearing under the Communications Act ("the Act"). See 47 U.S.C. Sec. 309(d), (e). After our remand, WPDE notified the Commission of its intent to submit supplemental materials concerning the cumulative impact issue. The FCC declined to consider those materials and again concluded that WPDE had failed to demonstrate any need for a hearing on the cumulative impact allegations. WPDE now argues that the FCC's refusal to consider its supplemental filing constituted an abuse of discretion and that its failure to hold a hearing on the cumulative impact issue was capricious. We uphold the Commission.

I. THE BACKGROUND

This is a tale of three cities--Florence and Charleston, South Carolina, and Wilmington, North Carolina. Florence, the home of appellant WPDE, is located between Charleston and Wilmington. In 1980, four Charleston VHF television stations applied to the FCC for permission to construct a common 2,000 foot tall tower transmission station northeast of Charleston in the direction of Florence. In 1981, a Wilmington VHF station applied for permission to build a tall tower west of Wilmington in the direction of Florence in order to replace its recently destroyed transmitter. The Wilmington station and one of the Charleston stations are affiliated with the American Broadcasting Corporation (ABC). WPDE, a Florence UHF station affiliated with ABC, opposed each separate application. In both proceedings, WPDE claimed that the adverse effects of allowing an ABC-affiliated VHF station to penetrate its service area required a public interest hearing under the Commission's UHF impact policy. ¹ See 47 U.S.C Sec. 309(e) (requiring the Commission to hold a hearing if an objector presents a "substantial and material question of fact" concerning an application's consistency with the public interest). WPDE, the only party affected by both proposals, also filed a timely motion to consolidate the two proceedings. In that motion, WPDE argued that the cumulative adverse impact of allowing two VHF ABC affiliates to penetrate its service area was greater than the impact of either proposal considered separately.

In 1982, the Commission granted both applications over WPDE's protests. The FCC first found that WPDE had not stated a prima facie case that the Wilmington proposal, considered separately, was inconsistent with the public interest. See Clay Broadcasting Corp., 50 Rad.Reg.2d (P&F) 1273, recon. denied, 51 Rad.Reg.2d (P&F) 916 (1982). On the same day that the FCC denied reconsideration of its Wilmington order, it granted the combined Charleston application, concluding that WPDE's allegations of competitive harm were speculative and could not outweigh the benefits of extended VHF service that would result from the Charleston proposal. See First Charleston Corp., 91 F.C.C.2d 388 (1982). ² The Commission's entire discussion of WPDE's cumulative impact claim, however, consisted of the following footnote to its Wilmington reconsideration order: "We note that [WPDE] made no prima facie showing that there would be a cumulative impact from our separate actions sufficient to warrant a different result." Clay Broadcasting, 51 Rad.Reg.2d (P&F) at 917 n. 1.

On appeal, this court upheld the Commission's separate conclusions concerning the Charleston and Wilmington applications. See Capital Communications, Inc. v. FCC, Nos. 82-1730, 82-1750 & 82-1755 (D.C.Cir. May 5, 1983) (upholding the Charleston order); Eastern Carolinas Broadcasting Co. v. FCC, No. 82-1749 (D.C.Cir. May 5, 1983) (upholding the Wilmington order). We concluded, however, that the FCC had inadequately explained its dismissal of WPDE's cumulative impact claim.

We agree that the Commission's consideration of WPDE's cumulative impact allegations was inadequate and conclusory. We therefore reverse the Commission's order with respect to WPDE and remand [the Charleston order] with instructions that it be consolidated with [the Wilmington order] for an explanation from the Commission of the reasons supporting any ruling on appellant's cumulative impact claims.

Capital Communications, mem. op. at 3. We therefore directed the Commission to make a reasoned analysis of WPDE's cumulative impact claim.

[T]he Commission should provide a sufficient decisional explanation with respect to its conclusions concerning cumulative impact issues.... [T]his explanation should include an analysis of the cumulative effect of the applications for change in VHF transmitter sites on the economic security and viability of WPDE. Just as the Commission balanced the extension of VHF television service against the speculative losses in UHF public interest programming in order to ascertain the consequences to the public interest in [the Charleston case], so the Commission should ascertain whether, despite any injury to WPDE, the public interest is served by granting the two VHF applications in the instant case. If, in the course of its deliberations, the Commission discovers that it is unable to offer a satisfactory justification for its finding of no cumulative impact or to make a reasoned finding concerning where the public interest lies in this case, it should order a hearing on the UHF impact issue.

Id. at 4-5 (emphasis added); see also Eastern Carolinas, mem. op. at 1 ("On remand, this case shall be consolidated with [Capital Communications ] so that the Commission may provide an adequate explanation of its consideration of the cumulative impact of the Wilmington and Charleston applications on WPDE. We express no opinion on the need for a hearing.") (emphasis added).

Shortly after our ruling, the appellant notified the Commission of its intent to file supplemental information concerning the cumulative impact of the two proposals by September 2, 1983. The supplement, WPDE stated, would synthesize the projections presented in its earlier filings and would offer new evidence concerning the actual effect of the Wilmington order on WPDE. See Notification of Intent to Supplement the Record on Remand, Joint Appendix ("J.A.") at 18 (June 16, 1983). ³ Both the Wilmington and the Charleston stations opposed the proposed supplemental filing. On September 2, the day WPDE tendered its supplement, the Commission adopted an order rejecting the cumulative impact claim. The FCC first concluded that it could provide a rational analysis of the cumulative impact claim on the basis of the existing record and that section 402(h) of the Act, 47 U.S.C. Sec. 402(h), required it to resolve the narrow remanded issue on the basis of the existing record. See First Charleston Corp., FCC 83-386, slip op. at 3-4 (Sept. 8, 1983) [hereinafter cited as Order ]. The Commission then ruled that WPDE's cumulative impact arguments, as submitted in the earlier motion to consolidate, did not require a public interest hearing. See id. at 5-9. In response to WPDE's petition for reconsideration, the Commission reiterated its position that this court had not directed it to reopen the record and that the record in the original Wilmington and Charleston proceedings provided a sufficient basis for a reasoned analysis of the cumulative impact claim. See First Charleston Corp., 97 F.C.C.2d 271, 274-78 (1984) [hereinafter cited as Reconsideration Order ]. The Commission also concluded that WPDE's supplemental comments on the existing record were not necessary to the resolution of this case and that the Act prohibited it from considering the new evidence contained in WPDE's supplement. See id. at 278 & n. 12.

On appeal, WPDE argues that the Commission's refusal to consider its supplemental filing constituted an abuse of both agency discretion and this court's mandate, and that the Commission's analysis of the cumulative impact claim was again inadequate and conclusory. Although we agree that the Commission unreasonably relied on section 402(h) in refusing to consider the evidentiary portions of WPDE's supplement, we conclude that its failure to accept WPDE's updated evidence was harmless error in light of its ultimate rationale. We also conclude that the FCC acted within its discretion in declining to address WPDE's additional comments on the existing record and in...