Red Rock Broadcasting, Inc. v. F.C.C., s. 92-1541

• Decision Date: 13 September 1996
• Docket Number: 95-1338,Nos. 92-1541,s. 92-1541
• Citation: 94 F.3d 698
• Parties: RED ROCK BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 698

94 F.3d 698

320 U.S.App.D.C. 364

RED ROCK BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee.

Nos. 92-1541, 95-1338.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 19, 1995.

Decided Sept. 13, 1996.

Appeals from Orders of the Federal Communications Commission.

Barry D. Wood, Washington, DC, with whom Mark A. Brinton was on the brief, argued the cause for appellant Red Rock Broadcasting, Inc.

Gregory M. Christopher, Counsel, Federal Communications Commission ("FCC"), Washington, DC, with whom William E. Kennard, General Counsel, and Daniel M. Armstrong, Associate General Counsel, FCC, were on the brief, argued the cause for appellee. Roberta L. Cook, Counsel, FCC, entered an appearance.

Before SILBERMAN and RANDOLPH, Circuit Judges, and BUCKLEY, ^* Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge BUCKLEY.

BUCKLEY, Senior Circuit Judge:

Appellant Red Rock Broadcasting seeks review of the Federal Communications Commission's decision to return Red Rock's application for a new FM radio station as unacceptable for filing. We find that the FCC did not abuse its discretion in refusing to grant Red Rock a waiver of its minimum spacing rules; and we hold that, under the agency's "hard look" procedures, the FCC properly returned Red Rock's application for noncompliance with the filing rules.

I. BACKGROUND

A. Regulatory Framework

Anticipating a flood of applications for new FM station licenses, in 1985 the FCC adopted application processing procedures that were designed to expedite the initiation of FM service and to increase certainty and efficiency in the licensing process. See Processing of FM and TV Broadcast Applications, Report & Order, 50 Fed.Reg. 19,936, et seq. ("FM Processing Rules"). Under these "hard look" procedures, the FCC staff conducts a preliminary review of a new application to determine whether it is "substantially complete" in accordance with criteria set forth in Appendix D to the FM Processing Rules ("Appendix D"). See id. at 19,945-46. Applications that are not in substantial compliance with these criteria when filed are returned as unacceptable for filing. Id. at 19,940. Applications that are acceptable are listed in publicly released "Notices of Tenderability." Id. at 19,941. Applicants then have 30 days to amend or perfect their applications as a matter of right. Id.

Following the 30-day amendment period, the FCC studies applications for "acceptability," which it defines as "compliance with the technical requirements for FM facilities," id., as set forth in Appendix D. Applications that are "patently not in accordance with the FCC rules, regulations, or other requirements, unless accompanied by an appropriate request for waiver, will be considered defective and will not be accepted for filing...." 47 C.F.R. § 73.3566(a). Those applications that are not accepted for filing are returned. 50 Fed.Reg. at 19,941. Applications that are resubmitted with curative amendments after the 30-day period will not receive nunc pro tunc status because "[t]o permit curative amendments after that period poses too great a threat to the orderly functioning of our new processing procedures." Id.

Appendix D requires, inter alia, that the applicant submit the geographic coordinates of its proposed transmitter site. Id. at 19,945. This information allows the Commission to determine whether the site complies with its mileage separation rules, which require that FM transmitters be located at specified minimum distances from neighboring FM broadcast stations in order to prevent interference. North Texas Media, Inc. v. FCC, 778 F.2d 28, 30-31 (D.C.Cir.1985). A site that does not meet the minimum separation requirement is "short spaced." The amount of separation depends on the classes of the affected stations. See 47 C.F.R. § 73.207. Stations are primarily classified as A, B, or C, depending on their transmission range. North Texas Media, 778 F.2d at 31. Class A stations have the weakest power and thus the smallest area of coverage, while Class C stations have the largest. See 47 C.F.R. § 73.207. Class C is divided in turn into three classes, C1, C2, and C3, the first being the strongest. Id.

B. The Applications at Issue

Having been unsuccessful in a previous attempt to find a qualified licensee for FM channel 259C in St. George, Utah, the FCC announced, on May 25, 1988, that it would again accept applications for that allotment. Notice of FM Broadcast Allotment "First-Come/First-Serve" Filing Status, Report No. FCFS-8. On June 1, the FCC received an application from EAR, Inc., which proposed a fully spaced transmitter site. On June 2, Red Rock Broadcasting, Inc., submitted an application for a site that fell 1.16 kilometers short of the 209 kilometers required between it and Station KGMN in Kingman, Arizona. KGMN was a class A station that had been authorized to operate as a Class C1 facility but had not upgraded its facilities to do so. Red Rock's proposal was short spaced only with respect to this unused C1 allotment. With its application, Red Rock submitted a request for a waiver of the spacing rules, setting forth certain reasons why the waiver would serve the public interest. Red Rock also noted that KGMN had not taken any steps to operate as a C1 facility. KGMN did not file an objection to Red Rock's application. Red Rock's and EAR's mutually exclusive applications were accepted for tender on August 8, 1988.

The following succession of events involving Red Rock, EAR, and KGMN led to this appeal. On January 5, 1989, the FAA issued an aeronautical study which indicated that construction of EAR's proposed antenna tower would be a hazard to air navigation. On May 10, the FCC's Mass Media Bureau ("Bureau") denied Red Rock's waiver request and returned its application. A month later, EAR's application was accepted for filing. Red Rock petitioned for reconsideration of the denial of its waiver on June 15, and on July 5, it filed a petition to deny EAR's application. In both petitions, Red Rock called attention to the FAA's adverse determination regarding EAR's proposed antenna site and requested that its own application be reinstated. On July 21, EAR filed an amendment to its application, which proposed a new transmitter site to cure the air navigation problem.

On September 25, 1989, KGMN applied for a permit to modify its facilities as authorized by the FCC and noted that it had decided to operate as a Class C2, rather than as a Class C1, facility. The application was granted. In July 1990, while its petition for reconsideration was still pending, Red Rock filed an "Information Statement" to inform the FCC of the significance of KGMN's modification: "[E]ven the 'de minimus' [sic] short-spacing which once existed has been wholly removed as a factor in the consideration of Red Rock's proposal." In re Red Rock Broadcasting, Inc., Information Statement at 3 (July 19, 1990). Red Rock also maintained that, "at the time the Commission dismissed Red Rock's proposal, the EAR application did not have an acceptable site proposal" due to the FAA's air hazard determination; thus, "the Commission unknowingly but mistakenly assumed [EAR] had a fully-spaced site." Id. at 2.

The Bureau denied Red Rock's petition for reconsideration and its petition to deny EAR's application. Letter from Larry D Eads, Chief, Audio Services Division, FCC Mass Media Bureau, to J. Dominic Monahan, Esq. (Dec. 27, 1990). It also declined to consider Red Rock's "Information Statement," treating it as an untimely amendment. Id. at 1 n. 1. The Commission denied Red Rock's subsequent application for review of the denial of its petition for reconsideration. In re Red Rock Broadcasting, Inc., Memorandum Opinion & Order, 7 F.C.C.R. 5947 (1992) ("First Order").

Red Rock appealed that decision and, in 1993, we granted the FCC's motion for voluntary remand so that the agency could address Red Rock's arguments and the basis for its decision more fully. The Commission released its second decision on June 1, 1995, in which it affirmed its initial conclusions. In re Red Rock Broadcasting, Inc., Memorandum Opinion & Order, 10 F.C.C.R. 5990 (1995) ("Second Order"). Red Rock appeals both decisions.

II. DISCUSSION

A. Short-Spacing Waiver

"The Commission need not grant a waiver of its Rules unless an application therefor sets out 'adequate reasons why the Rules should be waived....' " Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C.Cir.1968) (per curiam) (quoting United States v. Storer Broadcasting Co., 351 U.S. 192, 205, 76 S.Ct. 763, 772, 100 L.Ed. 1081 (1956)). The FCC has explained that the

spacing requirements presumptively serve the public interest, and applicants seeking waivers to operate from short-spaced sites are required to demonstrate that the public interest will be better served by a waiver in the circumstances presented than by following the terms of the rule.

In re Caloosa Television Corp., 3 F.C.C.R. 3656, 3657 (1988), on recon., 4 F.C.C.R. 4762 (1989); accord Nelson County Broadcasting Co., 64 F.C.C.2d 932, 933 (1977). Further, waiver applicants must make a threshold showing that no fully spaced sites are available. Kenter Broadcasting Co., 62 Rad. Reg.2d (P & F) 1573, 1577 (1986), aff'd, 816 F.2d 8 (D.C.Cir.1987) (table); see also North Texas Media, 778 F.2d at 32.

If the short spacing is de minimis, i.e., less than one mile (1.6 km), an applicant such as Red Rock does not have to make this threshold showing; it must, however, be able to explain why a waiver is in the public interest. Kenter Broadcasting, 62 Rad. Reg.2d at 1577 n. 9; North Texas Media, 778 F.2d at 32 n. 15. A party challenging the FCC's refusal to grant a waiver

not only bears the burden of convincing the agency that it should depart from the rules, but, on judicial appeal, the applicant must show that the agency's reasons for declining the waiver were so...