Neighborhood TV Co., Inc. v. F.C.C.
| Decision Date | 17 August 1984 |
| Docket Number | Nos. 83-1635,83-1736,s. 83-1635 |
| Citation | 742 F.2d 629 |
| Parties | NEIGHBORHOOD TV COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Microband Corporation of America, SIN, Inc., Spanish International Communications Corporation, National Association of Public Television Stations, International Broadcasting Network, Intervenors. LOS ANGELES COUNTY SHERIFF'S DEPARTMENT, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. International Broadcasting Network, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Alan R. Plutzik, Washington, D.C., for petitioner Neighborhood TV Company, Inc. in No. 83-1635. Sol Schildhause, Washington, D.C., also entered an appearance for Neighborhood TV Company, Inc.
John D. Lane, Washington, D.C., with whom Martin J. Gaynes and Ramsey L. Woodworth, Washington, D.C., were on the brief for petitioner Los Angeles County Sheriff's Department in No. 83-1736.
Gregory M. Christopher, Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., J. Paul McGrath, Asst. Atty. Gen., Barry Grossman and Nancy C. Garrison, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents. C. Grey Pash, Jr., Atty., F.C.C. and Andrea Limmer, Atty., Dept. of Justice, Washington, D.C., also entered appearances for respondents.
Norman P. Leventhal, Washington, D.C., was on the brief for intervenor SIN, Inc. in No. 83-1635. Barbara K. Kline and Meredith S. Senter, Jr., Washington, D.C., also entered appearances for SIN, Inc.
Paul James Broyles, Houston, Tex., entered an appearance for intervenor International Broadcasting Network in Nos. 83-1635 and 83-1736.
Stephen R. Bell and Paul J. Sinderbrand, Washington, D.C., entered appearances for intervenor Microband Corp. of America in No. 83-1635.
Norman P. Leventhal and Barbara K. Kline, Washington, D.C., entered appearances for intervenor Spanish Intern. Communications Corp. in No. 83-1635.
Peter Tannenwald, Theodore D. Frank and Vonya B. McCann, Washington, D.C Before ROBINSON, Chief Judge, WALD, Circuit Judge, and EDMUND L. PALMIERI, * Senior United States District Judge for the Southern District of New York.
entered appearances for intervenor National Association of Public Television Stations in No. 83-1635.
Opinion for the Court filed by Circuit Judge WALD.
Neighborhood TV Co., Inc. (Neighborhood) and the Los Angeles County Sheriff's Department (Sheriff) petition for review of a Federal Communications Commission (FCC or Commission) order establishing a low power television service, the FCC's subsequent denial of reconsideration of that order and several interlocutory decisions affirmed and adopted in the final order. Neighborhood essentially takes issue with the interim procedures for processing television translator license applications that the FCC adopted during the pendency of its inquiry into the authorization of low power television on frequencies previously allotted to the television translator service. The Sheriff objects to the FCC's decision authorizing low power television service on frequencies for television translators shared with private land mobile/public safety radio service. We find no infirmity in either the FCC's interim processing procedures for television translator applications, or with its allocation of channels to low power television. Accordingly, we affirm the FCC decisions.
Television translators are devices that receive conventional broadcast television signals, amplify them and rebroadcast them at another frequency. Originally translators were to serve areas of the country where geographical isolation or rough terrain prevented adequate reception of conventional broadcasts. Translator stations operated only on UHF channels at much lower power than full service (conventional) television stations. See 47 C.F.R. Sec. 74.735. They were forbidden to originate programming, to otherwise alter their input signal, or to obtain revenue through subscription fees or advertising. These restrictions stemmed, in large part, from the technical inability of small low power stations to broadcast a high quality original signal. See In the Matter of Amendment of the Rules Governing Television Translator Stations, 13 F.C.C.2d 305, 322 (1968).
The rulemaking in controversy here was instigated to allow stations operating at the same low power and in the same band of the spectrum as translators to originate programming. Thus the term "low power television" in communications parlance means low power broadcasting of original programming, rather than low power rebroadcasting of full service television programs received off the air. But although translator service and low power television are thus distinct in at least one important respect, they have not historically been treated as entirely distinct by the FCC. Prior to this rulemaking, the FCC had allowed limited original broadcasting by translators for acknowledgments, advertising, solicitation of funds and emergency announcements, as well as rebroadcast of microwave signals and of taped programs. See generally In the Matter of An Inquiry Into the Future Role of Low-Power Television Broadcasting and Television Translators in the National Telecommunications System, 68 F.C.C.2d 1525, 1547-49 (1978) (Notice of Inquiry, Appendix B). 1 Thus "[n]umerous actions that [the FCC In 1978, the FCC issued its Notice of Inquiry, to develop a "coherent long-range plan for the use of TV translator stations with traditional and, perhaps, altered functions, and, more generally, for the use of low-power, origination-capable television stations." Notice of Inquiry, 68 F.C.C.2d at 1525. The Commission noted that technological advances made low power television feasible, and that this evolution was reflected in its prior case-by-case loosening of translator station limitations. In the Notice of Inquiry the Commission announced its intention to replace such ad hoc development of low power television with a long-range policy. Id. at 1527.
has] taken over the past ... years have significantly blurred the distinction between traditional translators and those exhibiting the attributes of low power stations." Memorandum Opinion and Order, 84 F.C.C.2d 713, 723 (1981)
On October 17, 1980, the FCC issued a Notice of Proposed Rulemaking, 82 F.C.C.2d 47 (1980). In addition to proposing a new service allowing low power broadcasting of original programming, the FCC's notice included a statement of procedures the Commission would use to process translator applications prior to promulgation of final rules to cover this new low power television service. See id. at 78; see also Public Notice of Interim Processing Procedures, 48 Rad.Reg.2d (P & F) paragraphs 53:3572, 54:732 at 291 (1980) (). Because the proposed low power television service was to be "buil[t] upon the existing translator service," Notice of Proposed Rulemaking, 82 F.C.C.2d at 48, the FCC addressed the policy it intended to follow regarding translator applications. It rejected a "freeze" on translator applications because "the routine uncontested translator application should continue to be processed." Id. at 78. It also invited applications that proposed low power (origination) features conforming to the proposed rules' technical standards and ownership requirements where those applications otherwise met the requirements for a translator license and offered a public interest justification for waiver of the "no origination" rule. Id. But, it noted that all licenses granted prior to promulgation of final low power television rules would be subject to those final rules eventually adopted. Finally, to preserve the status quo and to avoid allowing translator applicants to gain a lock on frequencies prior to approval of final low power television rules, the FCC decided that "no mutually exclusive applications [whether asking for waiver of the "no-origination" rule or not] can be processed through to a grant during the pendency of [the low power television] proceeding." Id. In essence, the interim processing regime was designed to achieve three things: it allowed applicants to file for translator licenses authorizing original programming by requesting a waiver of the no-origination rule; it subjected contested traditional translator applications to a processing freeze pending the outcome of its rulemaking; and it conditioned all interim license grants on the final low power television rules.
Numerous parties, including Neighborhood, petitioned the FCC for reconsideration, clarification or modification of the interim processing procedures. Neighborhood, hoping to set up an alternative national television network of translator stations rebroadcasting signals sent from a central location by satellite transmission, had filed numerous translator applications. In this court, it objects to the FCC's interim processing as subjecting its applications to competition with low power television applications that did not conform to preexisting translator application requirements. Nonetheless at this stage of the proceeding before the Commission, Neighborhood apparently merely responded to other petitioners' comments asking the FCC to establish Following its announcement of its interim processing procedures, the FCC was swamped with translator applications. On April 9, 1981, the Commission noted that as of March 25 of that year,...
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