Mount Wilson FM Broadcasters, Inc. v. F.C.C., s. 87-1289

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation884 F.2d 1462
Docket Number89-1029,Nos. 87-1289,s. 87-1289
Parties, 58 USLW 2196 MOUNT WILSON FM BROADCASTERS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Prime Time Broadcasting Limited, et al., Intervenors.
Decision Date16 March 1990

Stanley S. Neustadt, with whom Robert J. Jacobi, Washington, D.C., was on brief for petitioner, Mount Wilson FM Broadcasters, Inc, in No. 87-1289. Lawrence N. Cohn also entered an appearance for petitioner.

John C. Quale, Jerry V. Haines, Washington D.C., were on brief for petitioner Eric Chandler Comm. of San Diego, Inc., in No. 89-1029.

David Silberman, with whom Diane S. Kilroy, Daniel M. Armstrong, F.C.C., Washington, D.C., were on brief for respondents. Robert B. Nicholson and David Seidman, Attys., U.S. Dept. of Justice, entered an appearance for respondents.

Bruce D. Ryan, Washington, D.C., for intervenor, Portola Broadcasting Corp., in No. 87-1289.

Before WILLIAMS and SENTELLE, Circuit Judges, and WILL, * Senior District Judge.

Opinion for the Court filed by Senior District Judge WILL.

WILL, Senior District Judge:

On February 25, 1985, the Federal Communications Commission (the "FCC" or "Commission") allotted FM radio channel 285A to San Clemente, California. Petitioners, Mt. Wilson FM Broadcasters, Inc. and Eric Chandler Communications of San Diego, Inc., broadcast on FM radio channels adjacent to channel 285A. They contest the FCC's finding of a "reasonable assurance" that a properly spaced transmitter site would be available for operation on the new channel. Although we find that the petitioners arguably have standing Establishing a radio station on a new FM channel entails two steps carried out in two separate proceedings. Objectors, like petitioners here, may and normally do participate in both steps. First, the FCC allots the channel or frequency to a particular community in a rulemaking proceeding. See C.F.R. Sec. 73.202(b) (1988) (Table of Allotted FM Channels). Typically, such a proceeding begins on the petition of a party interested in setting up a new radio station. The petition must contain, among other things, a "reasonable assurance" that a transmitter site is available that meets the minimum separation requirements, which are designed to prevent interference among stations on the same or adjacent channels. 47 C.F.R. Sec. 73.207; see also North Texas Media, Inc. v. FCC, 778 F.2d 28, 30 (D.C.Cir.1985); In re Amendment of Sec. 73.202(b) (Pinckneyville, Illinois), 41 Rad.Reg.2d 69, 71 (1977). The Commission will presume that a technically feasible site exists unless an interested party challenges the presumption. In re Amendment of Sec. 73.202(b) (San Clemente, California), 3 F.C.C.Rcd. 6728 (1988). Here, the first step has been completed and a channel allocated.

we approve the Commission's contention and find that the controversy is unripe for review at this time.

After it has allocated a channel, the Commission in a second proceeding considers applications for licenses on that channel. As in the earlier proceeding, an applicant must show "with reasonable assurance in good faith that [a transmitter] site will be available." In re Louis Vander Plate, 13 F.C.C.2d 952, 957-58 (1968); see also In re Application of Sampson Broadcasting Co., 33 Rad.Reg.2d 923, 929-30 (1975). Even at this stage, the FCC does not require the applicant "to establish that it has a binding arrangement, or legal control of the land.... An oral promise by the landowner to sell or lease property is sufficient." In re Louis Vander Plate, 13 F.C.C.2d at 957-58. In practice it seems clear that while the FCC will find an "assurance" reasonable for licensing purposes with only a modest probability of a final site acquisition, it is satisfied with even less for an allotment. The second step may, however, never result in a license being issued because a suitable transmitter site may never be found or a waiver of the minimum distance separation rule may never be granted by the Commission.

Here, Sunbelt Television, Inc. initiated the channel 285A allotment proceeding with a petition containing the customary assertion that "appropriate transmitter sites would be available." The two radio broadcasting companies operating stations on nearby frequencies opposed the allotment, arguing that there was no available site meeting the minimum separation requirements. Mt. Wilson is the licensee of FM station KKGO in Los Angeles, which, as it operates on one of the nearest available frequencies, is the "first adjacent" station. The minimum separation rules require a distance of at least 105 kilometers between it and the proposed channel 285A. 47 C.F.R. Sec. 73.207(b)(1) (Table A). Audio House, Inc., the predecessor in interest to Eric Chandler and hereafter referred to as Chandler, operated FM station KCBQ, the "second adjacent" station. At the time the petition was filed, FCC regulations required a separation of at least sixty-four kilometers; as of March 1, 1984, this was increased to sixty-nine kilometers. See In re Modification of FM Broadcast Station Rules to Increase the Availability of Commercial FM Broadcast Assignments, 94 F.C.C.2d 152, 169-70 (1983); 47 C.F.R. Sec. 73.207(b)(1) (Table A) (current separation requirements). It appears that the more distant the frequency, the smaller a station's geographic separation need be.

Mt. Wilson and Chandler argued that the only site area meeting the separation requirements was within the Camp Pendleton Marine Corps Base. In 1966 the FCC had refused to allot channel 285A to San Clemente because the military base was unavailable for all civilian uses, including transmitting radio signals. In re Amendment of Sec. 73.202 (Carrollton, Ky., et al.), 2 F.C.C.2d 647 (1966). The broadcasters argued that circumstances had not changed since then and submitted a supporting affidavit by Saul Levine, the president of Mt. Wilson.

He recounted that on May 22, 1984 he had talked with a major in the Chief of Staff's Office, as well as a major who served as the head of the base's Communications and Electronics Division. Both men indicated that Camp Pendleton's policy remained unchanged and that no civilian transmitter would be allowed on its property. In addition, Levine said he had visited the site area and that it was "completely devoted to hazardous military training operations."

In response, Sunbelt offered evidence of a change in the policy relating to civilian use. Sunbelt's president reported a conversation with one Dawn Lawson, described only as being "of the Department of Natural Resources, Camp Pendleton," who told him that "certain civilian uses" were allowed, "provided such uses do not interfere with the military functions of the camp." Sunbelt also provided the FCC with a copy of a letter from Colonel A.A. Bernotas, the Assistant Chief of Staff, Facilities. Bernotas adopted the same nebulous position as Ms. Lawson:

In response to your inquiry of 3 July 1984, the Marine Corps does in certain cases permit civilian use of military property. This is in no way an approval for your proposal to place a transmitter tower on Camp Pendleton.

Your proposal would require close evaluation since military use of the land for training purposes takes precedence in all cases.

Sunbelt did not identify any alternate transmitter site area but relied solely on the availability of land at Camp Pendleton. See Reply Comments of Sunbelt Television, Inc., Joint Appendix ("J.A.") 72; Addendum to Reply Comments, J.A. 79.

On February 15, 1985 the Chief of the FCC's Policy and Rules Division ordered that the FM Table of Allotments be amended to include channel 285A. In re Amendment of Sec. 73.202(b) (San Clemente, California), MM Docket No. 84-442, slip op. (Feb. 25, 1985). As to the transmitter site area, the opinion recognized that the only sites which could meet the minimum spacings would have to be in Camp Pendleton, but, apparently in reliance on the Bernotas letter, found that "the Marine Corps indicated its willingness to evaluate the proposal." Id. at 2. Petitioners sought reconsideration, but the Policy and Rules Chief affirmed his original decision. In re Amendment of Sec. 73.202(b) (San Clemente, California), MM Docket No. 84-442, slip op. (Aug. 13, 1986).

Petitioners then requested the FCC to review its staff's determinations; the Commission affirmed the channel allotment without addressing the siting issue, except to observe that Camp Pendleton had determined that it would not approve construction of a transmitter, that eleven out of twelve applicants for a license for channel 285A had requested waivers of the specific requirements, and that one applicant (the James and Claudia Harden partnership) had specified a qualifying site outside the Camp. In re Amendment of Sec. 73.202(b) (San Clemente, California), 2 F.C.C.Rcd. 2514 (1987). Mt. Wilson, with the support of Chandler, petitioned for reconsideration. It pointed out that the Harden site was in fact within Camp Pendleton, and that the Camp would not permit a transmitter there. It offered a copy of a letter from the Assistant Chief of Staff, Facilities, evidently Colonel Bernotas's successor, referring to the Harden proposal and stating that "such a tower has been determined to be incompatible with the training mission of the base and would not be approved." Thus no properly spaced site for channel 285's transmitter existed, and the FCC could grant a broadcast license only if it waived its separation requirements. The Commission nonetheless denied the petition. Although it acknowledged that the Camp Pendleton transmitter site area apparently was no longer available, it viewed the matter as of the time of the initial staff allotment decision. At that time, it said, there was a "reasonable likelihood that a site on Camp Pendleton would be...

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