Salzer v. F.C.C., s. 84-1527
| Decision Date | 13 December 1985 |
| Docket Number | Nos. 84-1527,85-1006,s. 84-1527 |
| Citation | 778 F.2d 869,250 U.S.App.D.C. 248 |
| Parties | Rochelle C. SALZER, et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. GARNERLYNN COMMUNICATIONS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Metromedia, Inc., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from an Order of the Federal Communications commission.
Robert S. Koppel, with whom David Tillotson and Aaron P. Shainis, Washington, D.C., were on brief, for appellants in No. 84-1527.
William M. Barnard, Washington, D.C., for appellant in No. 85-1006.
Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel, David Silberman, John P. Greenspan and Barbara A. Kreisman, Counsel, F.C.C., Washington, D.C., were on brief, for appellee in No. 84-1527.
Gregory M. Christopher, Counsel, F.C.C., with whom Jack D. Smith, Gen. Counsel and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for appellee in No. 85-1006.
David Tillotson, Robert S. Koppel, Alfred C. Cordon, Dennis J. Kelly, John R. Feore, Jr., Gary S. Smithwick, Harold K. McCombs, Jr., Washington, D.C., Stuart B. Mitchell, Andrew Bisulca, Falls Church, Va., James L. Oyster, Arlington, Va., Harry C. Martin, Matthew H. McCormick, Tom W. Davidson, James L. McHugh, Jr., Raul R. Tapia, William H. Crispin and Peter Tannenwald, Washington, D.C., were on joint brief for amici curiae, Southeastern Michigan Broadcasting, Inc., et al., in No. 84-1527, urging reversal.
Thomas J. Dougherty, Preston R. Padden and Gene P. Belardi, Washington, D.C., entered appearances for intervenor, Metromedia, Inc. in No. 85-1006.
Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS, * Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
In these cases, appellants Garnerlynn Communications ("Garnerlynn") and Rochelle C. Salzer 1 ("Salzer") each appeal from an order of the Federal Communications Commission ("FCC" or "Commission") rejecting its application to construct and operate a low power television ("LPTV") 2 station.
Appellant Garnerlynn applied for a license to operate a LPTV broadcast facility on channel 5 in Cape May, New Jersey. After the submission of the Garnerlynn application, the FCC completed a comprehensive LPTV rulemaking. It adopted a stringent "complete and sufficient" 3 standard governing the acceptability of LPTV applications for processing, and required that pending applications be amended to conform with the Commission's new rules. Although one of the new LPTV regulations required applicants intending to operate with frequency offset to indicate the specific type of offset proposed on the face of the application, Garnerlynn did not amend its application to conform to this requirement. Its application was therefore rejected pursuant to the "complete and sufficient" standard because, without the use of frequency offset, its operation would create objectionable interference with WNEW, channel 5 in New York.
Appellant Salzer sought the license to operate a LPTV broadcast facility on channel 7 in Honolulu, Hawaii. She submitted her application after the FCC had completed a second LPTV rulemaking, promulgating regulations to enact a lottery system for the selection of LPTV licensees and affirming its commitment to the "complete and sufficient" standard for LPTV applications. These new regulations require applicants to certify that they possess certain legal qualifications for LPTV licensing and to provide supplementary information necessary to determine their entitlement to preferences awarded in the lottery proceeding. The Salzer application, too, was rejected in light of the "complete and sufficient" standard, because she failed to make the required certifications and to provide the necessary preference information.
Appellants Garnerlynn and Salzer assert that the FCC was not authorized to adopt the stringent "complete and sufficient" standard of acceptability. In addition, they contend that the agency failed to provide sufficient notice of the specific LPTV filing requirements relevant to the deficiencies in their applications.
We hold that, under the circumstances, the FCC was clearly entitled to adopt a strict acceptability standard for LPTV applications. Given the expected deluge of LPTV applications and the limited nature of administrative resources, it was entirely reasonable for the agency to require applications to conform precisely to all processing requirements. However, fundamental fairness also requires that an exacting application standard, enforced by the severe sanction of dismissal without consideration on the merits, be accompanied by full and explicit notice of all prerequisites for such consideration. We hold that Salzer did not receive adequate notice of when and how pending LPTV applications were to be amended to include the required supplementary information. We therefore vacate the FCC's order dismissing Salzer's application, and remand the matter to the agency for the reinstatement of that application nunc pro tunc. Garnerlynn, on the other hand, provides an excellent illustration of the entirely justified application of the stringent acceptability standard in a case where the notice provided by the FCC was unequivocal; and we therefore affirm the FCC's order dismissing Garnerlynn's application.
Prior to 1982, stations operating at low power were permitted only to retransmit the signals of high power stations. In 1982, however, the FCC created a new service and authorized LPTV licensees to originate their own programming. 4 Low power licensees are now permitted to broadcast in the gaps between the transmission ranges of existing high power stations. Instead of listing all potential licenses and soliciting applications for discrete areas, the FCC requires LPTV applicants to specify the location and frequency of their proposed signals. Any LPTV application creating interference with a high power station is immediately dismissed. 5 LPTV proposals that the FCC predicts to produce interference with each other are deemed mutually exclusive, and a lottery is conducted to determine which of the applications will be granted. 6
In the course of its LPTV rulemaking, the Commission also announced its departure from the acceptability standard generally applicable to broadcast applications--the "substantially complete" standard 7--and its adoption of the new, stringent "complete and sufficient" standard. 8 In so doing, the Commission relied on a statement made by this court in Radio Athens, Inc. (WATH) v. FCC. 9 In that case, this circuit contrasted the "public interest in assuring that the limited remaining broadcast facilities go to the best qualified applicant" and the FCC's interest in "procedures and administrative techniques that enable the Commission to handle its work load efficiently, and with optimum use of limited administrative resources," and suggested: "[p]erhaps the Commission can accommodate the various interests by adopting administrative expedients that, for example, explicitly require all applications to be letter-perfect when filed." 10
The Commission formally accepted this implicit invitation in its LPTV Report and Order. Explicit reasons were given for the departure from the old "substantially complete" standard, and the consequences of non-compliance were fully explained:
The Commission's limited resources and the large number of low power applications to be processed simply will not permit the staff to coach applicants in correcting defects or omissions in applications that have been filed, as sometimes has been the case in the past. Defective low power applications will be returned summarily, and if they are resubmitted with perfecting amendments, they will be placed at the end of the processing line, unless passage of a cut-off date precludes consideration altogether, in which case the resubmission will be returned. 11
The LPTV rulemaking afforded all applicants full notice of the Commission's new fault-free approach and gave cogent reasons for its adoption of a stringent standard.
Both Garnerlynn and Salzer contend that the Commission's adoption of the "complete and sufficient" standard was arbitrary and capricious, 12 arguing that the unprecedented institution of such draconian measures is impermissible. We disagree.
In adopting the lottery statute that governs the processing of LPTV applications, 13 Congress stated that it expected the FCC to employ the traditional "substantially complete" standard unless the agency adopted another standard by rule. 14 As a result, the Commission, well aware of its limited resources and expecting a flood of applications, 15 duly enacted the more exacting application standard.
This decision was a reasonable exercise of discretion. Each LPTV application must be screened for objectionable interference with high power stations and with other mutually exclusive low power proposals. The Commission has implemented a computer program that identifies overlaps between the protected transmission ranges of existing and proposed stations and categorizes unacceptable and mutually exclusive applications. Each application directly and indirectly affects numerous others; thus the correction of an application that modifies its engineering data or the reinstatement of a formerly excluded application may require additional computer analysis and delay the processing of all interconnected applications, not simply the one amended. The FCC refers to this circumstance as the "daisy-chain" phenomenon.
The combined effect of limited agency resources, an overwhelming number of applications and the "daisy-chain" phenomenon 16 clearly...
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