ECI License Co., L.P. v. F.C.C.

• Citation: 106 F.3d 442
• Decision Date: 26 December 1996
• Docket Number: No. 96-1122,96-1122
• Parties: NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant. ECI LICENSE COMPANY, L.P., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 442

106 F.3d 442

323 U.S.App.D.C. 173

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.

ECI LICENSE COMPANY, L.P., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

No. 96-1122.

United States Court of Appeals, District of Columbia Circuit.

Dec. 26, 1996.

Before EDWARDS, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

JUDGMENT

This case was heard on the petition for review of an order of the Federal Communications Commission. The court has determined that the issues presented occasion no need for a published opinion. See D.C.Cir.Rule 36(b). For the reasons set out in the accompanying memorandum, it is

ORDERED that the petition for review is hereby denied.

The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 41.

MEMORANDUM

Entertainment Communications Inc. ("ECI") appeals from the denial of a request by the Federal Communications Commission ("FCC") for a waiver of regulations specifying the minimum permissible distances between FM radio station transmitters. ECI contends that the FCC acted arbitrarily and capriciously in not reviewing ECI's waiver application under a prior, more lenient rule, in denying ECI's application when it had granted waivers to certain applicants similarly situated to ECI that submitted their applications during the pendency of an filing freeze observed by ECI, and in failing to give ECI's application the "hard look" mandated by circuit precedents. We deny the petition.

I.

ECI is the owner of WYUU, an FM radio station that broadcasts to Safety Harbor, Florida, its community of license, and the surrounding greater Tampa area. In 1987 WYUU received an upgrade from the FCC allowing it to expand its area and population of service. Shortly after upgrading, WYUU began to experience severe reception problems in its service area. After study, WYUU concluded that the problem was caused by the atmospheric consequences of temperature inversions. WYUU then began searching for a new site to relocate its antenna.

Under § 307(b) of the Communications Act of 1934, 47 U.S.C. § 307(b), the FCC has established rules for the required distances between FM stations with particular antenna heights and power levels in order to prevent stations from causing one another signal interference. ¹ In 1963 the FCC promulgated a nationwide table of commercial FM channel allotments, ² requiring all stations to be located at specified minimum distances from other stations depending on their respective frequencies and classes. ³

During the 1980s, the FCC liberalized its rules to enable the licensing, under certain circumstances, of transmitter sites that were "short-spaced," i.e., the distance to the next transmitter site was less than normally required under the allotment tables. ⁴ Under the amended rule, the FCC would license the use of short-spaced transmitter sites where licensees proposed to "directionalize" their antennas so as to protect the signal contours of nearby stations. However, the FCC limited the amount of permissible short-spacing between even those classes of stations that used contour protection. With respect to stations in the same classification as WYUU, as initially promulgated in 1989, 47 C.F.R. 73.215(e) required a minimum distance of 169 kilometers between two stations. ⁵ In 1991, the rule was amended to impose a minimum required distance of 176 kilometers. ⁶ When it initially enacted the 1989 more lenient rule, the FCC anticipated receiving a large number of applications for short-spaced station sites. Concerned about the strain on its administrative resources, the FCC imposed a temporary freeze on applications for sites where the short spacing would be greater than 8 kilometers. ⁷ By the time the temporary freeze was lifted on November 9, 1992, ⁸ the increase in the minimum required distance from 169 kilometers to 176 kilometers had already taken place.

In 1989, ECI determined that its reception problems could be alleviated by relocating its antenna to the "Lodestar site," which was located 170.9 kilometers from the transmitter site of the nearest adjacent channel and which, although "short-spaced" by approximately 18 kilometers, was in compliance with the 169 kilometer minimum distance imposed by § 73.215. According to ECI officials, ECI was prepared to file an application with the FCC to use the Lodestar site in 1989, but did not do so because of the temporary freeze. ECI contends that, were it not for the freeze, WYUU's application would otherwise have met the specifications in § 73.215. ECI asserts that upon inquiring about a waiver of the temporary freeze, it was told by FCC staff that no waivers would be granted. ECI later learned that one waiver to the temporary freeze was, in fact, given to the Lebanon Broadcasting Company. ⁹ By the time the freeze was lifted, § 73.215 as amended necessitated that ECI apply for a waiver because its application to use the Lodestar site no longer met FCC specifications. In its waiver application, ECI argued that because it would have filed earlier absent the freeze, its application to use the Lodestar site should be evaluated as if it had been submitted under the more lenient 1989 version of § 73.215, which would have permitted a separation distance of 170.6 kilometers. The Mass Media Bureau denied the application, and the FCC denied rehearing. ¹⁰

ECI contends that the FCC's denial of its application for a waiver was arbitrary, capricious, and an abuse of discretion in that, through the temporary freeze, the FCC kept ECI from submitting its application at a time when it would have met all the requirements under § 73.215. ECI also contends that in granting a waiver of the 8 kilometer restriction to Lebanon Broadcasting despite having told ECI that no such waivers would be available, the FCC violated the Administrative Procedure Act, which requires publication of rules and regulations. ¹¹ Lastly, ECI contends that the FCC failed to give the requisite "hard look" to its waiver application and that the denial issued by the FCC was improper because it was not based upon a finding that the waiver would not be in the public interest. We find no abuse of discretion by the FCC in denying the waiver application. Red Rock Broadcasting, Inc. v. FCC, 94 F.3d 698, 707 (D.C.Cir.1996).

Contrary to ECI's contention, that WYUU may have been ready and willing to file its application when the 169 kilometer limit under the 1989 version of § 73.215 was in place, but was barred from doing so by the temporary freeze, does not mean that ECI was permanently entitled to have its application reviewed under the more lenient short-spacing rule rather than the more stringent version adopted in 1991. See Ass'n of Accredited Cosmetology Schools v. Alexander, 979 F.2d 859, 864 (D.C.Cir.1992). The amendment stiffening the distance regulations was enacted through a rule making proceeding; ECI could have participated in that proceeding, but chose not to. Nor did it challenge the FCC's temporary freeze. ECI's reliance on staff statements is misplaced, given that the FCC's rules allowed applications for waivers to be filed. See 47 C.F.R. § 1.3; Malken FM Associates v. FCC, 935 F.2d 1313, 1319 (D.C.Cir.1991). In addition, because ECI failed to apply for a waiver under FCC rules, ECI cannot show that the FCC acted in a discriminatory manner by granting waivers to others while the freeze was in place. Had ECI filed for a waiver and been denied, its discovery that Lebanon Broadcasting Co. was granted a waiver during the freeze period would have presented the court with a far different case, potentially falling within the strictures of WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C.Cir.1969), on which ECI relies. But having failed to apply for a waiver, ECI cannot now demonstrate that it was the victim of a discriminatory denial by the FCC.

Finally, because the FCC stated its reasons for denying the application, ECI's contention that the FCC failed to give ECI's application the required "hard look" review is meritless. As the court noted in Red Rock Broadcasting, " '[t]he Commission need not grant a waiver of its Rules unless an application therefor sets out adequate reasons why the Rules should be waived....' " 94 F.3d at 702 (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C.Cir.1968)). Further, "[t...