Victor Broadcasting, Inc. v. F.C.C.

• Decision Date: 22 November 1983
• Docket Number: No. 82-1964,82-1964
• Citation: 722 F.2d 756
• Parties: VICTOR BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Radio Station WABZ, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 756

722 F.2d 756

232 U.S.App.D.C. 270

VICTOR BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Radio Station WABZ, Inc., Intervenor.

No. 82-1964.

United States Court of Appeals, District of Columbia Circuit.

Argued 2 May 1983.

Decided Nov. 22, 1983.

Appeal from an Order of the Federal Communications Commission.

George R. Borsari, Jr., Washington, D.C., with whom Leonard S. Joyce, Washington, D.C., was on the brief, for appellant.

Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., with whom Marjorie S. Reed, Acting Gen. Counsel, David Silberman and S. Lee Martin, Counsel, F.C.C., Washington, D.C., were on the brief for appellee.

Donald E. Ward and Eric S. Kravetz, Washington, D.C., were on the brief, for intervenor.

Before WILKEY and MIKVA, Circuit Judges, and McNICHOLS, ^* Senior District Judge, United States District Court for the District of Idaho.

Opinion for the court filed by Circuit Judge MIKVA.

Dissenting opinion filed by Circuit Judge WILKEY.

MIKVA, Circuit Judge:

This case involves a license renewal hearing for an FM radio station. The hearing presented a contest between the current holder of the license, Radio Station WABZ (WABZ) and the challenger Victor Broadcasting, Inc. (Victor). The Federal Communications Commission (FCC or Commission) renewed the license of the incumbent WABZ. Victor brought this appeal to challenge the FCC's comparative analysis of the strengths and weaknesses of Victor and WABZ. Included within the general challenge is the specific issue of whether the Commission adequately considered WABZ's duplication of the programming of its sister AM station, WWWX. We conclude that the FCC was "painstaking and explicit in its balancing" and that its findings were reasonably articulated and based on substantial evidence. See Central Florida Enterprises, Inc. v. FCC (Central Florida II), 683 F.2d 503 (D.C.Cir.1982) (Wilkey, J.), cert. denied, --- U.S. ----, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983); Miner v. F.C.C., 663 F.2d 152 (D.C.Cir.1980). We thus affirm the FCC's decision.

I. BACKGROUND

WABZ has owned and operated an FM station in Albemarle, North Carolina since 1958. WABZ also owns a daytime-only AM station, WWWX, in the same community. During the day, both stations operate and WABZ-FM duplicates WWWX-AM programming in its entirety. Radio Station WABZ, Inc., 90 F.C.C.2d 818, 836 (1982) (hereinafter referred to as Hearing ). WABZ-FM's only independent programming occurs in the evening or the early morning. The FM station, on an average day, presents 31 minutes of independent, non-duplicative, non-entertainment programming. Id. On some days, the FM station presents almost an hour of non-duplicative public affairs or non-entertainment programming. WABZ's non-duplicated programming primarily "consists of local and syndicated religious programs, an occasional special musical or religious event, and live coverage of high school football games." Hearing, 90 F.C.C.2d at 843 n. 139. None of this programming is broadcast during the "graveyard shift." Rather, WABZ airs the programs at "times convenient to its listeners." Id. at 840. Numerous affidavits filed with the FCC attest to the high standard of WABZ's service to the community.

In July 1975, WABZ filed a license renewal application for its FM station. Shortly thereafter, Victor filed a competing application. Because the two applications were mutually exclusive, the FCC designated them for a comparative hearing. See Designation Order, 43 Fed.Reg. 8,181, corrected, 45 Fed.Reg. 10,732 (1978). The administrative In July 1982, the Commission adopted the administrative law judge's findings and granted WABZ's license renewal application. Id. at 846. The FCC relied on a comparative analysis--that is, it weighed the benefits of granting the license to Victor as against the benefits of renewing WABZ's license. As a necessary preliminary step to this balancing, the Commission examined several factors and determined which applicant was in a preferred position with respect to those factors. The FCC first assessed a moderate comparative demerit against Victor for its many reporting violations in its other station operations. Although the violations were inadvertent, the Commission concluded that "Victor's numerous violations reflect an inattention to [FCC] reporting requirements which we do not want to encourage." 90 F.C.C.2d at 827. The individual who would serve as the station's general manager was responsible for the reporting violations.

law judge who presided at the hearing recommended that the Commission grant the renewal application of WABZ. Hearing, 90 F.C.C.2d at 810.

The Commission then considered the issues of diversification and "best practicable service." Because Victor would introduce a new station to the community, the FCC concluded that Victor deserved a clear preference for diversification. However, the FCC also concluded that this preference was somewhat diluted by Victor's interests in radio stations in other communities in South Carolina and North Carolina. Id. at 831. Within the category "best practicable service," the Commission considered integration of ownership and management, efficient use of frequency, and WABZ's past broadcast record. As regards integration, the Commission considered whether owners would be involved in the radio station's daily management. Because an owner would serve as its general manager, Victor received a preference for integration. That owner, however, was responsible for the reporting violations. The FCC thus concluded that the owner's "demonstrated indifference to our reporting requirements diminishes the preference which Victor would otherwise receive on this issue." Id. at 833.

The category labeled "Efficient Use of Frequency" included two issues. First, the Commission compared the size of the audience which each applicant would reach. Because Victor would serve 30% more people, Victor received a "slight preference." The characterization of the preference as "slight" reflects the fact that the extra territory that Victor would reach already received three or four radio stations. Second, the Commission considered program duplication and assessed a moderate comparative demerit against WABZ. Id. at 836. WABZ made no showing to justify its program duplication. The Commission, however, noted that although program duplication leads to a demerit for the incumbent, "it does not ... merit a preference to the applicant which proposes no duplication." Id. at 836 n. 93.

Finally, the Commission considered WABZ's past broadcast record. The Commission concluded that WABZ's performance was superior and deserved a particularly strong comparative preference. Id. at 839. In reaching this result, the FCC noted that the station had devoted more than 20% of its broadcast time to non-entertainment programming. Additionally, numerous affidavits attested to WABZ-FM's service to the local community. Id. at 841. The Commission concluded that "the station's impressive reputation in the community, together with its emphasis on local programming, demonstrates a superb commitment to serving the community, which is far above a level of mediocre service which might minimally warrant renewal." Id. at 842.

The FCC then integrated these factors into a comparison between WABZ and Victor. After concluding that structural factors such as diversification and integration have less significance than does a record of superior performance, the Commission found that "Victor's advantages under diversification and best practicable service are insufficient to overcome its demerit for

                the reporting violations and WABZ's distinct preference for past broadcast record as diminished by its moderate demerit for proposed program duplication."    Id. at 846.  Because the Commission concluded that the public interest would best be served by WABZ's continuing service, it granted the license renewal and denied Victor's application for a new facility.  Thereafter, Victor brought this appeal
                

II. ANALYSIS

A. The Court's Role

It is well-established that to determine whether to renew a radio station license the FCC must engage in a "comparative weighing of pro-renewal considerations against anti-renewal considerations." See, e.g., Central Florida II, 683 F.2d at 507. The role of the court in reviewing an FCC decision reached after a comparative hearing is narrow. Central Florida Enterprises, Inc. v. FCC (Central Florida I), 598 F.2d 37 (D.C.Cir.1978) (per Wilkey, J.), cert. dismissed, 441 U.S. 957, 99 S.Ct. 2189, 60 L.Ed.2d 1062 (1979). In Miner v. FCC, 663 F.2d 152 (D.C.Cir.1980), this court explained its function when reviewing an FCC comparative hearing:

It is necessary only that we satisfy ourselves that the agency acted within the bounds of its statutory and constitutional authority, that it has followed its own procedural rules and regulations, that its findings of fact are reasonably articulated and based on substantial evidence in the record as a whole, that its conclusions do not deviate greatly from past pronouncements without sufficient explanation, and that in general it has engaged in reasoned decision-making.... [I]t is not our judicial job to direct the Commission on how to run the comparative hearing process, beyond assuring that the administrative process respects the rights of the public and of competitors assured under the Communications Act ... and that it produces rational decisions based on factors generally known in advance. [footnotes omitted].

Id. at 155 (quoting Fidelity Television, Inc. v. FCC, 515 F.2d 684, 699-700 (D.C.Cir.), cert. denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 254 (1975)). In Central Florida I, 598 F.2d at 49, this court succinctly summarized the proper standard of review: "[T]he agency must engage in reasoned decision-making, articulating with some clarity the reasons for its decisions and the significance of facts particularly relied...