ECI License Co., L.P. v. F.C.C., No. 96-1122

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore EDWARDS, Chief Judge, HENDERSON and ROGERS
Citation106 F.3d 442
Decision Date26 December 1996
Docket NumberNo. 96-1122
PartiesNOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.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.

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NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.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

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