Garrett v. F. C. C., No. 73-1840

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore McGOWAN and ROBINSON; SPOTTSWOOD W. ROBINSON, III
Citation168 U.S.App.D.C. 266,513 F.2d 1056
PartiesLeroy GARRETT, trading as Garrett Broadcasting Service (WEUP), Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
Docket NumberNo. 73-1840
Decision Date02 June 1975

Page 1056

513 F.2d 1056
168 U.S.App.D.C. 266
Leroy GARRETT, trading as Garrett Broadcasting Service
(WEUP), Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION, Appellee.
No. 73-1840.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 28, 1974.
Decided June 2, 1975.

Nathaniel F. Emmons, Washington, D. C., with whom Eugene F. Mullin, Washington, D. C., was on the brief, for appellant.

Daniel M. Armstrong, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, at the time the brief was filed, and Joseph A. Marino, Associate Gen. Counsel, F. C. C., Washington, D. C., were on the brief for appellee.

Before McGOWAN and ROBINSON, Circuit Judges, and WEIGEL, * United States District Judge for the Northern District of California.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal emanates from the Federal Communications Commission's denial of an application seeking authority to construct facilities enabling a radio station to change from daytime-only to unlimited-time broadcasting. The reason for the denial was the Commission's view that the applicant was unable to fully comply with the Commission's rule prescribing the minimum coverage of the city of license which the service applied for must provide. Among the questions tendered for our decision are whether, in holding that the rules intercepted the applicant, the Commission remained faithful to relevant but unmentioned precedents, and whether, in denying the applicant a waiver of the rules, the Commission gave proper weight to the fact of black ownership and operation of the applicant's station. Answering both questions in the negative and reaching no other issue, we remand the case to the Commission for further consideration.

I

Radio Station WEUP, licensed to Garrett Broadcasting Service, 1 transmits from Huntsville, Alabama, on 1600 kHz with 5-kilowatt power on a daytime-only basis. Station WRBN, licensed to WRBN, Inc., broadcasts daytime-only on 1600 kHz with 1-kilowatt power from Warner Robins, Georgia, 220 miles southeast of Huntsville. Each licensee applied to the Commission for a permit authorizing construction of a 500-watt directional facility for nighttime use.

The Commission consolidated the two applications for comparative hearing, 2 following completion of which an administrative law judge concluded that WEUP's proposed nighttime service would not meet the Commission's coverage rules 3 and that the attendant circumstances did not warrant a waiver of their demands. 4 Although WRBN's project likewise fell short on coverage, the judge deemed its showing on that

Page 1058

score substantial enough to justify waiver of the deficiency. 5 On administrative appeal the Commission's Review Board sustained these positions, 6 and the Commission, one member dissenting, declined further review. 7 The appeal to this court 8 followed, presenting solely the question whether the rulings on coverage and waiver were free from error.

When WEUP filed its application, the Commission required "(t)he transmitter

Page 1059

of each standard broadcast station (to) be so located that primary service is delivered to the borough or city, in which the main studio is located in accordance with the (Commission's) rules and regulations. . . ." 9 The Commission also required, as it does now, that as an element of transmitter site "(a) minimum field intensity of 5 to 10 mv/m shall be obtained over the most distant residential section." 10 The administrative law judge found, and the Review Board agreed, that WEUP's projected 5 mv/m nighttime contour would include only 73.4% of Huntsville's total population and 49% of its total area. 11 Neither the judge 12 nor the Board 13 considered WEUP's grounds sufficiently impressive to warrant a waiver of the city coverage requirements.

In this court, the parties have engaged in extensive debate on a number of points and subpoints, some of which we need not consider. For we find that in two broad respects the Review Board 14 erred to the extent that the case must be given further attention administratively on both the coverage and waiver issues. We discuss the difficulties making that necessary 15 and, without intimating a view on any other claim, we remand the case to the Commission for additional proceedings.

II

During the last quarter-century, Huntsville has experienced a tremendous geographical expansion. From aerospace industry and the resultant annexation of contiguous areas, 16 it had grown nearly 25-fold to 105.6 square miles in 1970. 17 In the process, the city has become very irregular in shape, stretching to a maximum of about 20 miles from north to south and about 15 miles from east to west. 18 Over the years from 1958, when WEUP commenced operation, its ability to cope with these changing conditions has gradually diminished. Not surprisingly, in 1969 when WEUP sought inauguration of a nighttime service, it was unable to satisfy the coverage rules.

Though conceding this inability, WEUP asserts that the refusal to waive the rules is markedly inconsistent with the Commission's disposition of cognate problems in earlier cases. In Great Southern Broadcasting Company, 19 the Commission dealt with an application for a permit to construct a new AM broadcasting station in Donelson, Tennessee, a small unincorporated community in Davidson County six miles east of Nashville. Nashville and Davidson County had recently merged to become a governmental complex of approximately 625 square miles, within the corporate limits of which were numerous communities, some with assigned radio stations, as well as rural areas. The Commission announced that "(s)ince the new municipality is so large and since it encompasses urban areas, small towns and farmland all with diverse needs and interests . . . in allocating stations, (it would) continue to recognize the former town and city limits as they existed prior to the merger." 20

Even earlier, in KDEF Broadcasting Company, 21 the Commission had adopted much the same approach. An Albuquerque,

Page 1060

New Mexico, station broadcasting daytime-only was authorized to do so unlimitedly despite nonconformity with the 5 mv/m minimum field intensity rule. The station's 5 mv/m coverage extended to only 67.8% of the area within the city limits of Albuquerque, though to 90.6% of its population, because large unserved areas within these boundaries were underpopulated. The Commission, concluding that waiver of the rule was called for, declared that "(i)t would be unduly harsh to require an applicant to render 'principal city' service to vacant acreage merely because the city even though with an eye toward future development has laid out its boundaries so as to encompass such acreage." 22

Hitherto, we have had occasion to deal with claims of disparate decisional treatment accorded parties by administrative bodies. Speaking of one agency, we have twice said that it "cannot act arbitrarily nor can it treat similar situations in dissimilar ways," 23 and we remanded litigation to the agency when it did not take pains to reconcile an apparent difference in the treatment accorded litigants circumstanced alike. 24 We have pursued the same course with respect to the agency now before us where "the differences (were) not so 'obvious' as to remove the need for explanation." 25 These rulings vividly reflect the underlying principle that agency action cannot stand when it is "so inconsistent with its precedents as to constitute arbitrary treatment amounting to an abuse of discretion." 26

The Commission's counsel argue that there was no deviation from precedent in the case at bar, and they endeavor to distinguish the earlier decisions to which we have adverted. It is clear, however, not only that "(m)ore than enumeration of factual differences between cases is required," but also that "the Commission must explain their relevance to the purposes of the" legislation it administers. 27 Only recently we admonished that "(t)he premises upon which the validity of an administrative order is to be decided are only those upon which the agency predicated its action," 28 for "(i)t is 'a simple but fundamental rule of administrative law . . . that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must adjudge the propriety of such action solely by the grounds invoked by the agency.' " 29

Here the Review Board did not attempt to reconcile its disposition of WEUP's application with past decisional practice; although the problem was evident,

Page 1061

the Board did not address it at all. 30 We cannot accept rationalizations offered by counsel as an adequate substitute for a response due the Commission itself. It is neither for counsel nor for us, but for the Commission itself, to explain any distinguishing characteristics it finds appealing, and to do so on a basis demonstrative of their pertinence to its statutory responsibilities.
III

WEUP'S licensee, Garrett Broadcasting Service, is solely owned by appellant Leroy Garrett, who is black. The record indicates that, at least when the case was before the Commission, WEUP's staff with minor exceptions was also black. WEUP was and is one of the infinitesimal number of black-owned and -operated broadcasting stations to be found anywhere in the United States. 31

Beyond that, 16,729 of Huntsville's total population of 137,802 are black citizens, to whom WEUP can and does cater in its programing. 32 WEUP claims that its proposed nighttime service area would have embraced 111,812, of whom 15,394 are black, that it would also have brought primary AM service to 53,296, including 4,494 blacks, who receive such service from but one AM station, and to an additional 12,689, including 1,525 blacks, who have no AM service at all. 33

At the administrative level, WEUP urged that its black ownership and black...

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35 practice notes
  • Harper v. Levi, Nos. 73-1766
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 24 Julio 1975
    ...he gave. SEC v. Chenery Corp., 318 U.S. 80, 92, 63 S.Ct. 454, 461, 87 L.Ed. 626, 635 (1943); Garrett v. FCC, 168 U.S.App.D.C. ---, ---, 513 F.2d 1056, 1060 (1975). 103 Cf. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 146, 64 S.Ct. 474, 481, 88 L.Ed. 635, 644 (1944); March v. United States,......
  • Anderson v. U.S. Sec'Y of Agriculture, Slip Op 06-161. Court No. 05-00329.
    • United States
    • U.S. Court of International Trade
    • 1 Noviembre 2006
    ...purpose underlying their actions. Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1029 n. 5 (D.C.Cir.1981) (citing Garrett v. FCC, 513 F.2d 1056, 1060 (D.C.Cir.1975)). This is because regulations inevitably discriminate to some extent, and "[s]ome over and under-inclusiveness would not be ......
  • Jones v. Califano, No. 268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 14 Abril 1978
    ...F.2d 981, 987 (2d Cir. 1973), and have held that agencies may not "treat similar situations in dissimilar ways," Garrett v. F. C. C., 168 U.S.App.D.C. 266, 270, 513 F.2d 1056, 1060 (1975), quoting Burinskas v. N. L. R. B., 123 U.S.App.D.C. 143, 148, 357 F.2d 822, 827 (1966). See Davis, Admi......
  • Fidelity Television, Inc. v. F. C. C., No. 73-2213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 30 Junio 1975
    ...71, 237 F.2d 552 (1956). 21 Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351, 357 (1949). 22 See Garrett v. FCC, 168 U.S.App.D.C. 266, 513 F.2d 1056 (1975); Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 454 F.2d 1018, 1026 (1971); see also Local 814, Tea......
  • Request a trial to view additional results
35 cases
  • Harper v. Levi, Nos. 73-1766
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 24 Julio 1975
    ...he gave. SEC v. Chenery Corp., 318 U.S. 80, 92, 63 S.Ct. 454, 461, 87 L.Ed. 626, 635 (1943); Garrett v. FCC, 168 U.S.App.D.C. ---, ---, 513 F.2d 1056, 1060 (1975). 103 Cf. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 146, 64 S.Ct. 474, 481, 88 L.Ed. 635, 644 (1944); March v. United States,......
  • Anderson v. U.S. Sec'Y of Agriculture, Slip Op 06-161. Court No. 05-00329.
    • United States
    • U.S. Court of International Trade
    • 1 Noviembre 2006
    ...purpose underlying their actions. Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1029 n. 5 (D.C.Cir.1981) (citing Garrett v. FCC, 513 F.2d 1056, 1060 (D.C.Cir.1975)). This is because regulations inevitably discriminate to some extent, and "[s]ome over and under-inclusiveness would not be ......
  • Jones v. Califano, No. 268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 14 Abril 1978
    ...F.2d 981, 987 (2d Cir. 1973), and have held that agencies may not "treat similar situations in dissimilar ways," Garrett v. F. C. C., 168 U.S.App.D.C. 266, 270, 513 F.2d 1056, 1060 (1975), quoting Burinskas v. N. L. R. B., 123 U.S.App.D.C. 143, 148, 357 F.2d 822, 827 (1966). See Davis, Admi......
  • Fidelity Television, Inc. v. F. C. C., No. 73-2213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 30 Junio 1975
    ...71, 237 F.2d 552 (1956). 21 Johnston Broadcasting Co. v. FCC, 85 U.S.App.D.C. 40, 175 F.2d 351, 357 (1949). 22 See Garrett v. FCC, 168 U.S.App.D.C. 266, 513 F.2d 1056 (1975); Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 454 F.2d 1018, 1026 (1971); see also Local 814, Tea......
  • Request a trial to view additional results

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