New World Radio, Inc. v. F.C.C.
| Decision Date | 02 July 2002 |
| Docket Number | No. 01-1110.,01-1110. |
| Citation | 294 F.3d 164 |
| Parties | NEW WORLD RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Birach Broadcasting Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Lawrence Roberts argued the cause for the appellant. Jared S. Sher was on brief.
Thomas E. Chandler, Counsel, Federal Communications Commission, argued the cause for the appellee. Jane E. Mago, General Counsel, Federal Communications Commission, and Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, was on brief.
Stephen Diaz Gavin was on brief for the intervenor.
Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON. Dissenting opinion filed by Circuit Judge RANDOLPH.
New World Radio, Inc. (New World), licensee of AM radio station WUST, located in Washington, D.C., appeals an order of the Federal Communications Commission (Commission or FCC) granting the application of Birach Broadcasting Corporation (Birach) to renew its license for WDMV(AM) located in Pocomoke City, Maryland. In re Application of Birach Broadcasting Corporation for Renewal of License of Station WDMV(AM), Pocomoke City, Maryland, 16 FCC Rcd 5015, 2001 WL 792835 (2001) (Renewal Application). New World contends the FCC erred in approving the Renewal Application because Birach failed to satisfy the "public interest, convenience, and necessity" standard of 47 U.S.C. § 309(k)(1) by failing to broadcast for thirty-two months. Because we conclude that New World lacks standing, we dismiss its appeal.
Birach acquired the license for WDMV from Five Star Broadcasting, Inc. (Five Star) on January 15, 1993. Earlier, on May 8, 1992, Birach had applied to the Commission for both a construction permit to change WDMV's community of license from Pocomoke City to Brinklow, Maryland (Brinklow Application)1 and for assignment of the WDMV broadcast license from Five Star to Birach (Assignment Application). The Assignment Application advised the Commission that Birach's obligations under the purchase agreement were contingent on the Commission's approval of the Birach Application. See Assignment Application, Exh. I-5. On November 25, 1992 the FCC granted both the Assignment Application and the Brinklow Application. On January 15, 1993, the day Birach acquired WDMV, Birach also notified the FCC that it and Five Star had completed the assignment and that Five Star had taken WDMV off the air as of January 14, 1993. See January 15, 1993 Letter from Lauren Colby, counsel for Birach, to FCC. Birch did not purchase Five Star's Pocomoke City facilities (for WDMV) at that time because it planned on resuming operations, after construction, at new facilities in Brinklow. Id.
On May 6, 1994 Birach applied to the FCC to extend the Brinklow construction permit beyond the May 25 expiration date, stating that it was unable to obtain the transmitter site specified in the Brinklow Application. New World filed an informal objection to the extension request, alleging that Birach had engaged in misrepresentations and/or lacked candor in connection with its certification of site availability included in the Brinklow Application. While Birach attempted to secure an alternate transmitter site in Brinklow, WDMV remained off the air pursuant to successive FCC special temporary authorizations. See August 1, 1994 Letter from James R. Burtle to Birach (three-month authorization to remain silent); November 9, 1994 Letter from James R. Burtle to Birach (same); February 13, 1995 Letter from James R. Burtle to Birach (same); May 19, 1995 Letter from James R. Burtle to Birach (same); September 11, 1995 Letter from James R. Burtle to Birach (same).
The WDMV license that Birach acquired from Five Star was scheduled to expire on October 1, 1995. Consistent with the FCC rule requiring a renewal applicant to file four months before the expiration date, see 47 C.F.R. 73.3539, Birach filed an application for renewal of broadcast station WDMV, Pocomoke City, Maryland dated May 30, 1995 (Renewal Application).2 On September 18, 1995 New World filed an informal objection, claiming, inter alia, that Birach had not operated the radio station during the approximately 32 months that it held the WDMV license and had no firm plans to do so. On October 2, 1995 Birach filed an opposition, arguing that New World's informal objection did not constitute a petition to deny and that, in any event, New World lacked standing to file a petition to deny because it could not show that it would be injured by granting the Renewal Application. In its Reply, New World acknowledged that "it lacks the required standing to maintain a petition to deny," which, it explained, was the reason it "filed its pleading as an Informal Objection, not a petition to deny." October 11, 1995 Reply [to Birach's Opposition to Informal Objection] at 3 ¶ 5.
On July 15 1996, without having resumed broadcasting from WDMV, Birach again applied to change the community of license and relocate WDMV's transmission facilities, this time from Pocomoke City to Damascus, Maryland (Damascus Application). The Damascus Application was prompted by Birach's continuing inability to secure the site specified in the Brinklow Application. Opposing Birach at every step, New World filed a petition to dismiss or deny the Damascus Application.
The Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996) (Telecom Act) became effective on February 8, 1996. Section 312(g) provides that "[i]f a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period, notwithstanding any provision, term, or condition of the license to the contrary." 47 U.S.C. 312(g). Any station silent as of the date of enactment had one year from the effective date of the Telecom Act — that is, until February 9, 1997 — to begin broadcasting before the license automatically expired. In order to satisfy the new statutory directive, Birach purchased Five Star's Pocomoke City transmission facilities (which, as noted earlier, it had not done at the time it acquired WDMV from Five Star) and resumed operations at the Pocomoke City, Maryland site on November 11, 1996.
In light of Birach's Damascus Application, on January 14, 1997 the Audio Services Division of the FCC's Mass. Media Bureau dismissed as moot Birach's Brinklow extension request and canceled its Brinklow construction permit. January 14, 1997 Letter Decision from Linda Blair, Chief, Audio Services Division, Mass Media Bureau.3 In addition, the letter decision granted Birach's Renewal Application, stating that "because New World's allegations in its Informal Objection ... relate only to the station's silent status, ... we grant the pending license renewal application in light of WDMV(AM)'s resumption of broadcast operations." Id.4
On February 18, 1997, New World petitioned for reconsideration of the January 14, 1997 letter decision granting Birach's Renewal Application, reasserting the arguments made in its informal objection. The Audio Services Division, by letter, denied New World's petition for reconsideration and request for a hearing on November 20, 1997. November 20, 1997 Letter Decision from Linda Blair, Chief, Audio Services Division, Mass Media Bureau. New World then petitioned for review by the Commission on November 22, 1997. Birach opposed New World's petition. On February 28, 2001 the FCC denied New World's petition. See In re Application of Birach Broadcasting Corporation for Renewal of License of Station WDMV(AM), Pocomoke City, Maryland, 16 FCC Rcd 5015, 2001 WL 792835 (2001) (Order). The FCC concluded that New World's charge that Birach had made misrepresentations in connection with its filing of the Assignment and Brinklow Applications, which charge was first raised by New World eighteen months after both applications had become final, was untimely. Id. at ¶ 8. The FCC further concluded that New World's argument was based on the erroneous view that Birach was required to make efforts to resume broadcasting at Pocomoke City while at the same time seeking to relocate to Brinklow and then to Damascus. Id. Regarding any subsequent Birach misrepresentation involving Birach's operation of the station at Pocomoke City, the FCC again found no merit in New World's allegations. Id. In light of its longstanding policy to encourage a silent station to resume operations, the FCC affirmed the grant of Birach's Renewal Application. Id. at ¶ 11. In so concluding, it also noted that Birach had never been warned that keeping the station silent could jeopardize any renewal application. Id.
New World filed a timely notice of appeal on March 7, 2001. Birach subsequently intervened in support of the Commission. New World contends the FCC decision to grant the Renewal Application was arbitrary and capricious because Birach failed to broadcast any programming for more than thirty-one months. For the same reason, New World contends the FCC's order contravenes the public interest. Finally, New World argues that the FCC's failure to examine adequately whether Birach made misrepresentations coincident with its Assignment and Brinklow Applications left unresolved questions of fact about Birach's qualifications to remain a licensee. The FCC first challenges New World's standing to seek review of Birach's Renewal Application. Because we agree that New World lacks standing, we do not reach its arguments on the merits.
The FCC challenges New World's standing, asserting New World is not injured by the grant of Birach's Renewal Application for the Pocomoke City license. Section 402(b) of the Federal Communications Act, 47 U.S.C. §§ 151 et seq. (1982) (Act), provides that "any ......
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