Greater Orlando Aviation Authority v. F.A.A., s. 90-3081

Citation939 F.2d 954
Decision Date23 August 1991
Docket NumberNos. 90-3081,90-3082,s. 90-3081
PartiesGREATER ORLANDO AVIATION AUTHORITY, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent, Guy Gannett Publishing Co. d/b/a Radio Station WMNZ (AM), Intervenor-Respondent. GREATER ORLANDO AVIATION AUTHORITY, Petitioner-Appellant, v. FEDERAL AVIATION ADMINISTRATION, Respondent-Appellee, Guy Gannett Publishing Co. d/b/a Radio Station WWNZ (AM), Intervenor-Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Egerton K. van den Berg, Foley & Lardner, Ellen S. Camenker, Orlando, Fla., for petitioner-appellant.

Edward W. Hummers, Jr., Fletcher, Heald & Hildreth, Mania Kleinburd Baghdadi, Washington, D.C., for intervenor Guy Gannett.

James B. Busey, IV, F.A.A., Patricia R. Lane, F.A.A., Asst. Gen. Counsel, Samuel K. Skinner, Sec. of Transp., Washington, D.C., Douglas MacNair, Airspace/Aviations Standards Dept., Frederick, Md., Jack Johnson, Manager, Aviation Office, Fla. Dept. of Transp., Tallahassee, Fla., for respondent-appellee.

Petition for Review of Order of the Federal Aviation Administration.

Before ANDERSON and DUBINA, Circuit Judges, and GIBSON *, Senior Circuit Judge.

DUBINA, Circuit Judge:

Petitioner, Greater Orlando Aviation Authority ("Aviation Authority"), petitions this court to review two Federal Aviation Administration ("FAA") decisions which have allowed Guy Gannett Publishing Co. ("Gannett") to erect radio towers in the Orlando, Florida, area. The two issues presented in this appeal are (1) whether this court has subject matter jurisdiction to review the FAA decisions; and (2) whether the FAA's decision not to consider a proposed airport, while it was considering the impact of Gannett's radio towers on air safety, was arbitrary and capricious. We find that the Aviation Authority showed reasonable grounds for its failure to file a timely appeal from the September 21, 1989, determination, but we further find that we do not have jurisdiction over the appeal from the December 5, 1989, determination. In addition, we find that the FAA's decision not to consider the proposed airport was arbitrary and capricious. Accordingly, we grant the Aviation Authority leave to appeal from the FAA's September 21, 1989, determination; we dismiss the Aviation Authority's appeal from the December 5, 1989, determination for lack of subject matter jurisdiction; and we vacate and remand the September 21, 1989, determination.

I. BACKGROUND

The Aviation Authority is a public entity created to develop, finance, and operate airport facilities in Orange County, Florida. As part of that responsibility, the Aviation Authority undertook an airport capacity study to measure and anticipate general aviation needs in Orange County. The study indicated that Orlando, Florida, is in need of reliever airports. 1 The Aviation Authority then developed a preliminary list of twelve sites for two possible reliever airports (six sites for one airport in the east and six sites for another airport in the west). The FAA worked in concert with the Authority in developing plans for reliever airports in the Orlando area. The FAA's involvement included meeting with representatives of the Aviation Authority to discuss locations, required airport capacity and environmental concerns. 2

On April 24, 1989, the FAA received a Notice of Proposed Construction or Alteration submitted by Gannett that proposed the construction of a six-tower antennae complex in the Orlando area. 3 The FAA determined that the proposed towers would be considered an obstruction under standards set out in Objects Affecting Navigable Airspace, 14 C.F.R. Sec. 77 (1991), and that the agency would need to conduct an aeronautical study to determine whether the towers would be a hazard to air navigation. 4 On July 6, 1989, the FAA circulated notice of the aeronautical study of Gannett's proposed towers requesting all interested parties to submit comments on the proposal by August 5, 1989. 5

The FAA negotiated with Gannett in order to reduce the height of the towers, so that they would not be considered an obstruction under Sec. 77. 6 These negotiations were successful, 7 but unfortunately, due to a clerical mistake, an incorrect Acknowledgment of Notice of Proposed Construction or Alteration concerning Gannett's proposed towers was mailed by the FAA on September 15, 1989. A week later, on September 21, 1989, a correct version was mailed stating that the proposed towers would not be an obstruction under Sec. 77 standards.

Meanwhile, on June 6, 1989, the Aviation Authority officially informed the FAA of the exact location and coordinates of a proposed reliever airport. 8 The FAA has a standard rule of considering all proposals on a first-come, first-served basis. 9 Because notice of Gannett's proposal was received by the FAA prior to the receipt of the notice of the Aviation Authority, the FAA followed its standard procedures and did not consider the Aviation Authority's proposed airport when it was evaluating the proposed radio towers.

The Aviation Authority filed a request for discretionary review of the FAA's September 21, 1989, action on October 3, 1989. 10 The FAA denied this review on December 5, 1989, because administrative appellate procedures do not apply to determinations that the structure would not be an obstruction. 11

Gannett then filed an application for site plan approval with the Lake County Site Plan Committee. The plan was approved subject to proof that the FAA had determined that the proposal would not be an obstruction under its rules. Gannett presented the requisite proof and obtained building permits to construct its antenna towers. The Aviation Authority filed a notice of appeal with the Board of County Commissioners 12 seeking review of the Lake County Building Department's issuance of the building permits. Simultaneously, the state circuit court granted the Aviation Authority an injunction to stop the construction for the purpose of allowing the matter to proceed before the Board of Commissioners. The Aviation Authority was unsuccessful before the Board of Commissioners and Gannett then moved to lift the injunction. 13 The injunction was dissolved and Gannett began erection of the towers. 14

The Aviation Authority then filed two appeals with this court: (1) leave to file a Petition for Review of the September 21, 1989, determination (No. 90-3082), which held that Gannett's proposed towers were not an obstruction; and (2) a Petition for Review of the December 5, 1989, decision (No. 90-3081), which held that the September 21 determination was not subject to administrative review.

II. STANDARD OF REVIEW

Under 49 U.S.C.App. Sec. 1486(e) (1988), "findings of fact" by the FAA "if supported by substantial evidence, shall be conclusive." In reviewing administrative fact-findings to determine whether they are supported by substantial evidence, this court must look at the record in its entirety, including the body of evidence opposed to the FAA's view. City of Pompano Beach v. FAA, 774 F.2d 1529, 1539 (11th Cir.1985). Not only must the agency's factual findings be supported by substantial evidence, but the agency's interpretation of the governing statute, application of the statute to the facts, and conclusion must be reasonable and not arbitrary or capricious. Id. at 1540.

Although this court is the final authority on issues of statutory construction, it must respect the agency's findings and conclusions when the question involves an interpretation of a statute that is within the agency's specialized knowledge and expertise. Id. This court "will adhere to the 'principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.' " Veterans Administration Medical Center, Tampa Fla. v. Federal Labor Relations Authority, 675 F.2d 260, 262 (11th Cir.1982) (citations omitted).

III. ANALYSIS
A. Jurisdiction

Title 49 U.S.C.App. Sec. 1486(a) (1988), provides that a petition for review of an order of the Administrator of the FAA may be filed within sixty days after the entry of such order. After the expiration of the sixty days, the petition may be filed only by leave of the court upon a showing of reasonable grounds for failure to file within the allowed time period. 15 The Supreme Court has emphasized that the timely filing of a notice of appeal is " 'mandatory and jurisdictional.' " Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388, 101 L.Ed.2d 245 (1988) (Scalia, J., dissenting) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 61, 103 S.Ct. 400, 402, 403, 74 L.Ed.2d 225 (1982)); see also Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522, 1525 (11th Cir.1991).

Since the Aviation Authority filed its appeal on January 31, 1990, the appeal was clearly filed more than sixty days after the FAA's September 21, 1989, determination. The phrase " '[a]ny order, affirmative or negative' has been judicially restricted to encompass only final FAA orders." Aeromar, C. Por A. v. Department of Transp., 767 F.2d 1491, 1492 (11th Cir.), reh'g denied, 773 F.2d 1239 (1985). The Aviation Authority argues that because it asked the FAA to reconsider its decision, the order was not final. 16 The Aviation Authority cites to language in Aeromar which reads, "[a]fter the filing of a petition for reconsideration of a FAA order, there is no 'definitive statement on the subject matter' of the order until the petition is denied." Id. at 1493 (quoting Outland v. C.A.B., 284 F.2d 224, 227 (D.C.Cir.1960)). The court stated that to hold otherwise would leave the court open to the possibility of unnecessary piecemeal judicial review. Id.

This case, however, is different from Aeromar. In this case, the FAA's determination was not subject to reconsideration. The FAA made a finding of no obstruction under 14 C.F.R. Sec. 77.19(c)(1), and that finding is not subject to discretionary review under Sec. 77.37....

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