Rainbow/Push Coalition v. F.C.C.

• Decision Date: 10 June 2003
• Docket Number: No. 02-1020.,02-1020.
• Citation: 330 F.3d 539
• Parties: RAINBOW/PUSH COALITION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. Sinclair Broadcast Group, Inc., et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

330 F.3d 539

RAINBOW/PUSH COALITION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

Sinclair Broadcast Group, Inc., et al., Intervenors.

No. 02-1020.

United States Court of Appeals, District of Columbia Circuit.

Argued March 14, 2003.

Decided June 10, 2003.

Appeal of an Order of the Federal Communications Commission.

David P. Huitema argued the cause for appellant. With him on the briefs were Michael S. Giannotto and David E. Honig.

C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for appellee. With him on the brief were Jane E. Mago, General Counsel, and Daniel M. Armstrong, Associate General Counsel.

Kathryn R. Schmeltzer argued the cause for intervenor. With her on the brief were Barry H. Gottfried and Howard A. Topel.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

Rainbow/PUSH Coalition petitioned the Federal Communications Commission to deny certain applications to transfer control of television broadcasting licenses. The Commission, having determined that some of Rainbow's objections relating to the licensees' prior dealings had merit, imposed forfeitures upon the licensees but nevertheless granted their applications without holding a hearing. We hold that Rainbow lacks standing to appeal that decision.

I. Background

The Communications Act of 1934 prohibits the assignment or transfer of a broadcast license without the approval of the Commission. 47 U.S.C. § 310(d). In 1998 Sullivan Broadcast Holdings, Inc. applied for approval to sell five television stations to Sinclair and to sell five others, including KOKH-TV in Oklahoma City, Oklahoma, to Glencairn. See Edwin L. Edwards, Sr., 16 F.C.C. Rcd. 22236, ¶ 2 & n.1, 2001 WL 1561734 (2001). As the consideration for its acquisition Glencairn agreed to assume certain of Sullivan's debts. Id. ¶ 8.

At the time these applications were filed the Commission's so-called "duopoly" rule prohibited the common control of more than one television license in a market. In August 1999, while the applications were pending, the Commission revised its broadcast multiple ownership rules, loosening the "duopoly" rule to "allow common ownership of two stations in the same [market] if ... eight independently owned, fullpower and operational television stations... will remain post-merger." Review of the Comm'n's Regulations Governing Television Broad., 14 F.C.C. Rcd. 12903, ¶ 8, 1999 WL 591820 (1999) ("Revised Television Rules"), reconsid. denied in relevant part, 16 F.C.C. Rcd. 1067, ¶ ¶ 7-24, 2001 WL 46673 (2000), remanded in relevant part sub nom. Sinclair Broad. Group v. FCC, 284 F.3d 148, 158-65 (D.C.Cir.), further rulemaking proposed at 2002 Biennial Regulatory Review, 17 F.C.C. Rcd. 18503, ¶ ¶ 18-19, 76-77, 2002 WL 31108252 (2002).

In November 1999 Sullivan, Sinclair, and Glencairn substantially restructured their proposed transaction and filed revised applications with the Commission. First, Sullivan applied to transfer KOKH to Sinclair rather than to Glencairn. Second, Glencairn applied to transfer to Sinclair five other television stations, including KRRT-TV in Kerrville, Texas, near San Antonio. Edwards ¶ ¶ 3-4. In consideration Glencairn was to receive approximately $8 million in Sinclair stock. Id. ¶ 12. Third, Glencairn sought Commission approval to transfer control of the corporation from Edwin L. Edwards to Carolyn Smith. Id. ¶ 3.

Claiming an interest in the matter because one of its members lived in Oklahoma City and another in San Antonio, Rainbow filed petitions to deny both the original and the revised applications. Rainbow alleged that Sinclair was in de facto control of Glencairn — and therefore already controlled Glencairn's stations — in violation of the approval requirement of § 310(d). Based upon this alleged fact, Rainbow objected to the original deal on the ground that it would violate the pre-1999 duopoly rule because both Sinclair and Glencairn would own stations in Oklahoma City. That objection appears to have been mooted by the revision of the duopoly rule. Rainbow also alleged that Glencairn had overstated the amount of debt it intended to assume as consideration for the purchase of stations from Sullivan. Id. ¶ ¶ 8-9. Rainbow asked the Commission first to deny the applications outright or, alternatively, to hold a hearing, which the Commission must do if there is "a substantial and material question of fact" as to whether granting an application would be in the public interest. 47 U.S.C. § 309(d)(2).

The Commission determined that for purposes of the transactions at issue Sinclair was, as alleged, in de facto control of Glencairn, and therefore in violation of § 310(d). Edwards, 16 F.C.C. Rcd. 22236, ¶ ¶ 23-28. For this it fined Sinclair and Glencairn $40,000 each. Id. ¶ 29. The agency nonetheless granted their applications without a hearing, conditioned upon certain changes, not relevant here, in the agreements. Noting that the parties had cooperated in its investigation and "manifested no palpable intent to deceive the Commission," the Commission found nothing in the record to suggest that the broadcasters' violation "raise[d] questions about the character qualification of these parties to be licensees." Id. ¶ 21. Although they had been parties to an unauthorized transfer of control, whereby Sinclair assumed de facto control of Glencairn, their "actions appear[ed] to reflect reliance on past [Commission] staff decisions involving similar facts, and thus appear[ed] to be miscalculations ... as to what was permissible." Id. Moreover, Edwards' impending departure from Glencairn would "mitigat[e] the potential for future lapses." Id. With regard to the alleged financial misrepresentation, which the Commission characterized as a mere "misstatement" and a "mistake," the Commission concluded there was no substantial and material question of fact and therefore no need for a hearing. Id. ¶ 28.

II. Analysis

On appeal Rainbow claims the Commission's failure either to deny the licensees' applications or to hold a hearing on its allegations was arbitrary and capricious. We cannot reach the merits of Rainbow's claim, however, because, as the Commission argues, the appellant lacks standing to appeal, wherefore we lack jurisdiction over its case. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.2002).

An association, such as Rainbow, has standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Because Rainbow has not demonstrated that it meets the first requirement, we need not consider the others.

The "irreducible constitutional minimum of standing contains three elements": (1) injury-in-fact, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). The injury must be both "concrete and particularized" and "actual or imminent." Id. at 560, 112 S.Ct. at 2136. The burden on a party challenging an administrative decision in the court of appeals is "to show a substantial probability that it has been injured, that the defendant caused its injury, and that the court could redress that injury." Sierra Club, 292 F.3d at 899. This burden is "the same as that of a plaintiff moving for summary judgment in the district court," in that the party must produce actual evidence, not mere allegations, of facts that support its standing. Id.

Rainbow seems to argue that our cases establish a per se rule that a person has standing to protect the "public interest" by challenging any decision of the Commission regulating (or, as in this case, declining to regulate) a broadcaster in whose listening or viewing area the person lives. Thus, we are told (in the appellant's reply brief) with respect to the first two elements of standing, "When the FCC permits the transfer of a license to a party that will not operate in the public interest, the FCC causes injury to the station's audience sufficient to create standing." If there were no more to standing than that, however, then the "irreducible constitutional minimum" would be irreducible only because it could not be any smaller and still be said to exist.

As authority for automatic audience standing, Rainbow relies upon Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C.Cir.1966) (UCC). The appellants there had petitioned to intervene in opposition to a broadcaster's application to renew its license, alleging that its station "did not give a fair and balanced presentation of controversial issues, especially those concerning Negroes." Id. at 998. In deciding that at least some of the appellants had standing to appear before the Commission,^* we rejected the Commission's arguments that "the only types of effects sufficient to support standing are economic injury and electrical interference," and that "members of the listening public do not suffer any injury peculiar to them" and therefore lack standing. Id. at 1000. Rather, we recognized that "standing is accorded to persons not for the protection of their private interest but only to vindicate the public interest." Id. at 1001. In light of the Commission's acknowledgment that it "cannot begin to monitor or oversee the performance of every one of thousands of licensees," id. at 1003, we found "no reason to exclude those with such an obvious and acute concern as the listening audience." Id. at 1002. We therefore remanded the matter to the Commission with instructions to "allow standing to one or more of [the appellants] as responsible...