Malkan FM Associates v. F.C.C., s. 90-1281
| Decision Date | 14 June 1991 |
| Docket Number | 90-1282,Nos. 90-1281,s. 90-1281 |
| Citation | 935 F.2d 1313 |
| Parties | MALKAN FM ASSOCIATES, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION Rio Bravo Broadcasters, Intervenor. TREY BROADCAST COMMUNICATIONS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION Hamon Broadcasting Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from Orders of the Federal Communications commission.
Harry F. Cole, Washington, D.C., for appellant Malkan FM Associates in No. 90-1281.
Barry J. Fleishman, for appellant Trey Broadcast Communications, Inc., in No. 90-1282. Karen L. Bush, Washington, D.C., also entered an appearance for appellant.
Roberta L. Cook, Counsel, F.C.C., with whom Robert L. Pettit, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, were on the brief, Washington, D.C., for appellee in No. 90-1281 and No. 90-1282.
Howard M. Weiss, Washington, D.C., and Lauren A. Colby, Frederick, Md., were on the joint brief for amici curiae G. Dale Cowle and Pike Family Broadcasting, Inc., in No. 90-1281 and No. 90-1282.
Bruce A. Eisen, Washington, D.C., was on the brief for intervenor, Rio Bravo Broadcasters, Ltd., in No. 90-1281.
Christopher D. Imlay, Washington, D.C., was on the statement for intervenor Hamon Broadcasting Corp. in No. 90-1282.
Before RUTH BADER GINSBURG, WILLIAMS, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
The Federal Communications Commission ("FCC" or "Commission"), under its exacting "hard look" procedures for processing FM applications, summarily rejected each of the two commercial FM radio station construction applications at issue in these consolidated cases. In both cases, the Commission dismissed the applications, as unacceptable for filing, because the antenna heights for the proposed stations exceeded the ceiling set by international agreement. The unsuccessful applicants, now appellants Malkan FM Associates and Trey Broadcast Communications, Inc., assert that the FCC's summary dismissals of their applications, without leave to file corrective amendments, should be set aside as arbitrary, capricious, and fundamentally unfair.
We conclude that the FCC gave adequate notice that FM applications would be found "acceptable" for filing only if they fully complied with the Commission's technical rules, including antenna height limits set by international agreements. We therefore affirm the Commission's final order rejecting appellants' applications.
On July 12, 1985, Malkan FM Associates 1 filed with the FCC an application to construct a Class A commercial FM station in South Padre Island, Texas; Malkan's application proposed an antenna with a height above average terrain ("HAAT") of 100 meters, or 328 feet. On September 18, 1986, Trey Broadcast Communications, Inc., applied for a construction permit for a Class A commercial FM station in Beeville, Texas; Trey's application proposed an antenna with an HAAT of 304.4 feet. In both cases, the Commission received a number of other timely applications for the stations in question.
Both Malkan's and Trey's proposed station sites are within 320 kilometers of the border separating the United States from Mexico. Both applications, therefore, fall within the territory covered by a 1972 agreement between the United States and Mexico in which the two countries agreed to minimize radio interference at the border by, inter alia, limiting antenna heights for Class A FM stations to 300 feet. See Agreement on Radio Broadcasting in the Standard Broadcast Band, Nov. 9, 1972, United States-Mexico, art. 5, Sec. A(6)(a), 24 U.S.T. 1815, 1830, T.I.A.S. No. 7697, at 16 ("U.S.-Mexico Agreement"). 2 Because Malkan and Trey had proposed antenna heights above the limit set by the U.S.-Mexico agreement, the Commission found their applications "unacceptable." Citing its new system for processing FM applications, promulgated as a final rule in May 1985, the Commission denied Malkan and Trey leave to amend their applications nunc pro tunc to meet the antenna height ceiling stated in the U.S.-Mexico Agreement.
The FCC, in 1985, faced the influx of thousands of commercial FM applications for over 650 new allotments for FM facilities. Prompted by the anticipated swell in applications, the Commission that year adopted procedures intended "to expedite service to the public and to provide increased certainty and efficiency in the applications processing system." Processing of FM and TV Broadcast Applications, Report & Order, 50 Fed.Reg. 19,936, 19,936 (May 13, 1985) ("1985 FM Rules"). Under the 1985 FM Rules, the Commission announces a fixed filing period, or "window," during which candidates may submit construction applications for available channels. Mutually exclusive applications filed during a window are subject to comparative hearings to determine the best applicant. If no satisfactory application is filed during the window period, the channel is granted to the first qualified applicant to file. See id. (codified at 47 C.F.R. Sec. 73.3564 (1990)).
As a component of its new "hard look" approach, the Commission instituted a stringent "tender review" of applications. See 50 Fed.Reg. at 19,940. Applications not "substantially complete" when filed will be returned by the Commission as not "tenderable." See id. Applications found tenderable are placed on a publicly-released "Notice of Tenderability." Seeid. at 19,941. Within the 30 days immediately following release of this notice, applicants may "amend or perfect their applications at will and as a matter of right." Id.
After the 30-day amendment-at-will period, the Commission closely checks the applications for "acceptability," which the Commission defines as "compliance with the technical requirements for FM facilities." See id. If the application is found unacceptable, the FCC will return it. "Resubmission of such an application with a curative amendment," the Commission announced, "will not gain it nunc pro tunc status since applicants were afforded 30 days after the release of the Notice of Tenderability to amend their applications into acceptable form." Id. "To permit curative amendments after that period," the Commission stated, "poses too great a threat to the orderly functioning of [the] new processing procedures." Id. Once an application is found acceptable, on the other hand, "it is placed on a publicly-released 'Notice of Acceptability' inviting the filing of petitions to deny." Id.
Accompanying the publication of the Commission's new rules in the Federal Register was an explanatory appendix entitled "Statement of New Policy Regarding Commercial FM Applications That Are Not Substantially Complete or Are Otherwise Defective." See id. at 19,945 (Appendix D). The Appendix states:
4. Compliance with the Commission's technical rules is evaluated in the course of an acceptability study.... The absence of one or more elements of those data, listed below, prevents a determination of acceptability and thus renders the application not substantially complete.
. . . . .
(e).... Antenna height is as elemental a facility parameter as is ERP [Effective Radiated Power]. It also is subject to permissible-range values as a function of station class and, with ERP, determines the coverage area of a facility for a given signal strength. Antenna height is also limited in certain cases by international treaty or by allocation constraints.
Appendix D further notes that if the Commission accepts an application for filing but subsequently finds it not to be "grantable," the applicant will be given an opportunity to amend, as long as its application is not mutually exclusive with other applicants. See id. at 19,946. If an "acceptable but not grantable" application is mutually exclusive, the Commission will specify an appropriate issue in the Hearing Designation Order or allow a post-designation amendment. See id.
Malkan filed its application for a construction permit in July 1985, three months after the FCC's new application-processing system went into effect. Malkan's application specified a 328-foot (100-meter) antenna height. In December 1985, the Commission issued a one-page notice, in mimeographed form, headlined: "Commission Reaffirms That the U.S.-Mexican Agreement of 1972 is Still in Effect." See Public Notice, Mimeo No. 1634 (December 23, 1985), reprinted in Joint Appendix ("J.A.") at 28. The notice explained that, although the metrication process had raised the maximum antenna height for FM stations that operate domestically, see supra note 2, "FM stations within 320 kilometers of the United States-Mexican border area must still comply with the bilateral Agreement." The penultimate paragraph of the notice stated:
... [I]f you are applying for a Class A FM station within 320 kilometers of the U.S.-Mexican border, the maximum parameters you may request are 3 kilowatts at an antenna height above average terrain (HAAT) of 91 meters. You may NOT request 3 kilowatts at an HAAT of 100 meters; if you do, your application will be returned as unacceptable for violating the United States-Mexican FM Agreement.
Id. (emphasis in original).
Cued by the notice, Malkan attempted to file a corrective amendment to its application on January 14, 1986. By that date, however, the 30-day post-tender amendment-at-will period had long passed. On March 24, 1986, without mentioning the attempted amendment, the Commission rejected Malkan's application as unacceptable because the antenna height proposed was not in accord with the U.S.-Mexico Agreement.
Trey filed its application for a construction permit in September 1986, specifying an antenna height of 304.4...
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