Glaser v. F.C.C., 92-1515
| Decision Date | 15 April 1994 |
| Docket Number | No. 92-1515,92-1515 |
| Parties | Michael L. GLASER d/b/a St. Vrain Communications Co., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Longmont Broadcasting Corporation, Amador S. Bustos, Western Cities Broadcasting, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from a Decision of the Federal Communications Commission.
Michael L. Glaser, pro se.
John P. Greenspan, Counsel, F.C.C., argued the cause for appellee. With him on the brief were Renee Licht, Acting Gen. Counsel, FCC, at the time the brief was filed, Daniel M. Armstrong, Associate General Counsel, FCC, and David Silberman, Counsel, FCC. Sue Ann Kanter, Counsel, FCC, entered an appearance.
On the joint brief for intervenors Longmont Broadcasting Corp. and Amador S. Bustos were Dennis J. Kelly, Lewis I. Cohen, and John J. Schauble.
Andrew Kersting, Harry C. Martin, and Matthew H. McCormick entered an appearance for intervenor Western Cities Broadcasting, Inc.
Before GINSBURG and RANDOLPH, Circuit Judges, and WILL, Senior District Judge. *
Opinion for the Court filed by Circuit Judge GINSBURG.
St. Vrain Communications Co. appeals from a decision of the Federal Communications Commission denying its application for an FM station license, which it filed in competition with a license renewal application. The FCC rejected St. Vrain's application because it lacked a site certification, in violation of the tender review requirements of the agency's "hard look" policy. Because the FCC did not give adequate notice that it would apply the "hard look" policy in comparative renewal proceedings, we reverse the agency's decision.
Western Cities Broadcasting, Inc. applied to renew its license for radio station KQKS-FM in Longmont, Colorado. One day before the filing window closed, St. Vrain filed a mutually exclusive application to construct a new radio station in Longmont. A few days later, when St. Vrain realized that it had inadvertently left out the page on which it showed that it had reasonable assurance that a transmitter site for its proposed station was available, it attempted to file a corrective amendment. The Mass Media Bureau, however, disregarded the amendment as untimely and, pursuant to the agency's "hard look" processing standards for FM applications, returned St. Vrain's application as "unacceptable for tender" because not "substantially complete."
St. Vrain petitioned the Bureau for reconsideration and reinstatement of its application nunc pro tunc on the grounds, among others, that the "hard look" policy is not applicable to an FM application that is competitive, i.e., mutually exclusive, with a renewal application, and that it would violate Sec. 553 of the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq., for the FCC to apply the policy to such an application without prior notice. The Bureau denied reconsideration, stating that the FCC had never suggested that the "hard look" policy would not apply to an application filed in a comparative renewal proceeding, and that application of the "hard look" policy "to all commercial FM applications--including those filed in comparative renewal proceedings--is entirely consistent with and furthers the Commission's stated goals." In re Applications of Western Cities Broadcasting, Inc., et al., 5 FCC Rcd. 6177, 6178 (1990). The Commission denied St. Vrain's petition for review for the same reasons, adding, without citation to any particular case, that "[w]e have uniformly made the 'hard look' applicable to new stations and comparative renewal cases." In re Application of Michael L. Glaser d/b/a Saint Vrain Communications Co., 7 FCC Rcd. 5971 (1992).
The FCC adopted stringent tender review requirements as part of its "hard look" policy in 1985; its purpose was to expedite its processing of applications, both the great backlog already filed and the large number of additional applications about to be filed for new FM allocations. Processing of FM and TV Broadcast Applications, 50 Fed.Reg. 19936 (May 13, 1985) (FM Applications ). Its public interest goal was to "ensure that an expansive menu of programming alternatives is made rapidly available to the American public." Id. at 19,937. Accordingly, the FCC established "window filing" and "first come/first serve [sic]" procedures to govern "currently vacant channels in the Commercial FM ... Tables of Allotments or for modifications to existing facilities," as well as "allotments added by future Commission orders." Id. at 19,936-37.
In an appendix to FM Applications the agency stated that, "in conjunction with the implementation of the new 'window' and 'first come, first serve' processing procedures," it was "adopting a new policy with respect to the definition and treatment of applications that are defective or not substantially complete when filed." The Commission explained:
Expedition of processing in the face of the possibility of a large increase in commercial FM applications compels us to shift to the beginning of the process some of the application checks previously made later in the process. This shift may well result in a loss of filing status for a returned application that it otherwise would have retained under the previous processing procedures. Such an outcome cannot be avoided if we are to achieve the benefits of the new window and first come, first serve processing procedures.
Id. at 19945 (Appendix D). The agency then set forth the criteria it would use to determine whether an application is substantially complete, including the requirement (pursuant to which it returned St. Vrain's application) that the applicant provide "reasonable assurance" of site availability, as well as the name and address of the site owner or its agent. Id. at 19945-46.
St. Vrain argues that neither in FM Applications nor in Appendix D thereto, nor anywhere else for that matter, did the FCC ever put the public on notice that an application to displace a renewal applicant would be subject to the strict tender review requirements of Appendix D. We agree.
There can be no doubt of the FCC's authority to impose strict procedural rules in order to cope with the flood of applications it receives or expects to receive. As we said in Salzer v. FCC, 778 F.2d 869, 875 (D.C.Cir.1985), however,
Here the FCC argues that it provided clear notice when it stated in Appendix D itself that "an application must include a site certification meeting certain specifications" and that "if the site availability certification was not submitted on time, 'the application will be returned without further notice.' " That statement is not responsive, however, to the question...
To continue reading
Request your trial
-
American Radio Relay League, Inc. v. F.C.C.
... ... upon which the Commission relied, in part, in reaching its determination." Submission by FCC Ofc. of Eng'g & Tech. to Sec'y (Dec. 22, 2004), filed in ET Docket Nos. 03-104 & 04-37 ... ...
-
SEE, Inc. v. Walsh
...regulations ... [that] simplify the administrative task and help guard against arbitrary agency action." Id. ; cf. Glaser v. FCC , 20 F.3d 1184, 1186 (D.C. Cir. 1994) (noting that "[t]here can be no doubt of the FCC's authority to impose strict procedural rules in order to cope with the flo......
-
Matson Navigation Co. v. U.S. Dep't of Transp.
...courts routinely consider appendices as part of the order on review when evaluating agency action.” Dkt. 26 at 24 (citing Glaser v. FCC, 20 F.3d 1184, 1186 (D.C. Cir. 1994); Indian River County v. Dep't of Transp., 348 F.Supp.3d 17, 62 (D.D.C. 2018)). That concession is well taken, since MA......
-
American Medical Ass'n v. Reno
... ... denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982); Home Box Office, Inc. v. FCC, 567 F.2d 9, 55 (D.C.Cir.) (proposed rule must provide sufficient information to permit informed ... ...