Sangre de Cristo Communications, Inc. v. F.C.C., s. 97-1030

• Citation: 139 F.3d 953
• Decision Date: 17 April 1998
• Docket Number: 97-1032,Nos. 97-1030,s. 97-1030
• Parties: , 12 Communications Reg. (P&F) 88 SANGRE DE CRISTO COMMUNICATIONS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Appellees. Pikes Peak Broadcasting Company and AK Media Group, Inc., Intervenors. UNIVERSITY OF SOUTHERN COLORADO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 953

139 F.3d 953

329 U.S.App.D.C. 260, 12 Communications Reg. (P&F) 88

SANGRE DE CRISTO COMMUNICATIONS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Appellees.

Pikes Peak Broadcasting Company and AK Media Group, Inc.,

Intervenors.

UNIVERSITY OF SOUTHERN COLORADO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Appellees.

Nos. 97-1030, 97-1032.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 17, 1998.

Decided April 17, 1998.

Appeals of an Order of the Federal Communications Commission.

Scott D. Dailard, Washington, DC, argued the cause for the appellants. Malcolm G Stevenson, Kevin F. Reed, Washington, DC, and Timothy J. O'Rourke were on the joint briefs. Lawrence M. Miller, Washington, DC, entered an appearance.

K. Michele Walters, Counsel, Federal Communications Commission, argued the cause for the appellees. Christopher J. Wright, General Counsel, Spokane, WA, Daniel M. Armstrong, Associate General Counsel, and C. Grey Pash, Jr., Counsel, Federal Communications Commission, Washington, DC, were on brief. Robert B. Nicholson, Attorney, United States Department of Justice, Washington, DC, entered an appearance.

Richard Hildreth, Andrew S. Kersting, Rosslyn, VA, James L. Winston and Walter E. Diercks, Washington, DC, were on brief for joint intervenors AK Media Group, Inc. and Pikes Peak Broadcasting Company.

Before: WILLIAMS, HENDERSON and GARLAND, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellants University of Southern Colorado (USC) and Sangre de Cristo Communications, Inc. (Sangre de Cristo) seek to reverse a ruling of the Federal Communications Commission (FCC or Commission) denying their channel exchange proposal. See Amendment of Section 73.606(b), Table of Allotments, TV Broadcast Stations (Pueblo, Colorado), 11 F.C.C.R. 19,649 (1996); Amendment of Section 73.606(B), Table of Allotments, TV Broadcast Stations (Pueblo, Colorado), 10 F.C.C.R. 7662 (MMB 1995). Because the FCC's rationale for its ruling is unclear, we vacate the ruling and remand for further proceedings.

I.

USC is the licensee of noncommercial educational television station KTSC(TV), Channel * 8, ¹ Pueblo, Colorado, which provides free public television service to television viewers in southern and western Colorado. USC's transmission facilities are located north of Pueblo at Baculite Mesa. Some Colorado Springs viewers could not receive transmissions from KTSC(TV) because of intervening terrain barriers so USC used a television translator ² on an apparently unused channel (Channel 53) in order to reach those viewers. In August 1990, however, USC was required to stop using Channel 53 when a full power station began operating on that channel.

As a result, USC sought an FCC construction permit to allow it to relocate its tower facility to Cheyenne Mountain--a location which would enable the station to reach a greater portion of the Colorado Springs-Pueblo television market. Operation at the site, however, required a waiver of the FCC's minimum distance separation requirement for television broadcast stations, see 47 C.F.R. § 73.610, because the Cheyenne Mountain site is "short-spaced" both to station KJCT(TV) in Grand Junction, Colorado (by 5.5 miles) and to a vacant channel allocation in Laramie, Wyoming (by 8.1 miles). ³

In February 1991 the FCC's Mass Media Bureau (MMB or Bureau) granted a waiver to USC, explaining:

The Commission is mindful of the unique role played by many noncommercial television stations in providing public television service to wide areas. You have established that the University serves both the Pueblo and Colorado Springs areas and that it is therefore important that your television station do so as well. You have unsuccessfully attempted to find another translator to serve Colorado Springs, and it would not be possible at this time to seek a new television channel, since there is currently a freeze on the filing of new applications in that part of the country. Further, it does not appear that you could modify the facilities of your current site sufficiently to provide a viewable signal in Colorado Springs. Consequently, your only alternative is to seek a new site, and we believe you have demonstrated the unsuitability of any other sites from which you could serve both communities. We further note that, while there would be some loss areas to the south and east of Pueblo, these areas are largely unpopulated. Additionally, we agree that the mountainous terrain and your offer to reduce effective radiated power to the north and west would greatly reduce the possibility that objectionable interference to the Grand Junction station or to a future station in Laramie would occur. Finally, we note that [nearby commercial] Station KJCT(TV) in Grand Junction has not opposed your proposal. Therefore, we believe that waiver of Section 73.610 is warranted.

Letter from Barbara A. Kreisman, Chief, Video Services Division, Mass Media Bureau, Federal Communications Commission, to Thomas Aube, University of Southern Colorado 2 (Feb. 28, 1991) (Kreisman Letter).

In September 1992 USC (which had yet to begin construction on Cheyenne Mountain) and appellant Sangre de Cristo, the licensee of commercial television station KOAA-TV, Channel 5, ⁴ sought to exchange channels pursuant to 47 C.F.R. § 1.420(h). ⁵ Under their proposal, the petitioners would exchange channels and USC would transfer its Cheyenne Mountain construction permit to Sangre de Cristo. In return, Sangre de Cristo would provide financial support to USC, donate a translator station to USC and transfer the existing licensed facilities of station KOAA-TV to USC.

In July 1993 the MMB released a Notice of Proposed Rule Making regarding the proposed channel exchange. Amendment of Section 73.606(B), Table of Allotments, TV Broadcast Stations (Pueblo, Colorado), 8 F.C.C.R. 4752 (MMB 1993) (Notice of Proposed Rulemaking or NPRM). While noting that the proposal met several of the baseline requirements for a channel exchange under section 1.420(h), ⁶ the MMB insisted that the stations swap their existing sites only. Id. at 4754. The MMB's modification meant that neither station could relocate to the Cheyenne Mountain site. The MMB further noted that "although USC was granted a waiver for Station KTSC(TV) on Channel

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based in part on the need to continue providing public television service to Colorado Springs without relying on a translator to accomplish its goal, we do not believe it appropriate to determine at the rule making stage whether a similar request from a commercial licensee would be granted at the application stage." Id. at 4753 n. 5. The appellants jointly objected to any alteration of their agreement, arguing that they satisfied the requirements for a channel exchange and that Sangre de Cristo's use of the Cheyenne Mountain site was crucial to their proposal. See Joint Comments of the University of Southern Colorado and Sangre de Cristo Communications, Inc., at 3; JA 44; Joint Reply Comments of the University of Southern Colorado and Sangre de Cristo Communications, Inc., at 4-5; JA 106-07.

In 1995 the MMB rejected the appellants' proposal to exchange channels. Amendment of Section 73.606(B), Table of Allotments, TV Broadcast Stations (Pueblo, Colorado), 10 F.C.C.R. 7662 (MMB 1995) (Report & Order). The Report & Order stated:

Petitioners are correct in stating that the intraband channel exchange procedures of Section 1.420(h) of the Commission's Rules are available to permittees. However, we do not agree with petitioners' assertion that, merely because a permittee of an unbuilt station could be a party to a channel exchange, it therefore follows that a construction permit for the modification of licensed facilities "must" be transferred in connection with a channel exchange proposal.... Moreover, petitioners make far too much of the fact that the Commission recognized when it adopted Section 1.420(h) that intraband channel exchanges could result in benefits for both noncommercial and commercial stations. This recognition does not mean, as petitioners suggest, that the Commission intended in adopting its channel exchange procedures to ensure a benefit for commercial stations. Indeed, the Commission clearly stated when it adopted Section 1.420(h) that its primary purpose in doing so was to enable noncommercial educational stations to improve their service. In upholding the channel exchange policy, the U.S. Court of Appeals for the District of Columbia Circuit also explained that the Commission adopted the policy "as a rescue effort for educational broadcasting in the wake of decreases in federal funding" and repeatedly referred in its opinion to the FCC's goal of promoting educational television ... We assume that commercial stations will request channel exchanges with noncommercial stations when it is in their interest to do so, but Commission policy in no way requires that the commercial party to a channel exchange receive any particular benefit in order for the exchange to be in the public interest.

Id. at 7666 (internal citations omitted). Noting that "the grant of a minimum spacing waiver in connection with petitioners' request ... would be inconsistent with well established Commission policy," the MMB reasoned that, " '[a]bsent a demonstration of compelling need for departure from established interstation separation standards, the Commission will not grant a waiver of the minimum spacing rules for allotment purposes.' " Id. at 7667 (quoting London, Kentucky, 7 F.C.C.R. 5936, 5937 (MMB 1992)). The Bureau concluded that the "petitioners have not made a showing of compelling need to support their request for a short-spaced allotment" and "the public interest benefits that would be derived from the short-spaced allotment they seek are not large enough to outweigh the public interest benefit of the integrity of the TV Table...