WITN-TV, Inc. v. F.C.C., WITN-T

• Decision Date: 28 June 1988
• Docket Number: WITN-T,INC,No. 87-1390,87-1390
• Parties: , Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Local Television Associations, Inc., Roy H. Park Broadcasting, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1521

849 F.2d 1521

270 U.S.App.D.C. 392

WITN-TV, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

Local Television Associations, Inc., Roy H. Park

Broadcasting, Inc., Intervenors.

No. 87-1390.

United States Court of Appeals, District of Columbia Circuit.

Argued May 27, 1988.

Decided June 28, 1988.

As Amended June 28, 1988.

Craig J. Blakeley, with whom Robert A. Beizer and Adam M. Eisgrau, Washington, D.C., were on the brief for petitioner.

Sue Ann Preskill, Counsel, F.C.C., with whom Diane S. Killory, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Robert B. Nicholson and Laura Heiser, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. John J. Powers, III, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.

Lawrence W. Secrest, III, Washington, D.C., was on the brief for intervenor, Roy H. Park Broadcasting, Inc. Robert L. Pettit, Washington, D.C., also entered an appearance for intervenor, Roy H. Park Broadcasting, Inc.

David D. Oxenford, Washington, D.C., was on the brief for intervenor, Local Television Associates, Inc.

Before ROBINSON, RUTH BADER GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

In August 1985 the Federal Communications Commission (FCC or Commission) assigned VHF TV channel 8 to Morehead City, North Carolina, over the objection of petitioner WITN-TV, Inc. (WITN), licensee of station WITN-TV, channel 7, Washington, North Carolina. Report and Order, 50 FED.REG. 33,546 (1985). WITN renewed its opposition to the assignment in a petition for reconsideration by the Policy and Rules Division and in a subsequent application for Commission review; both were denied. Memorandum Opinion and Order, MM Docket No. 84-790, RM-4801 (July 8, 1986); Memorandum Opinion and Order, 2 FCC Rcd 4146 (July 10, 1987). Roy H. Park Broadcasting, Inc. (Park), licensee of station WNCT-TV, channel 9, Greenville, North Carolina, also filed an application for FCC review. See 2 FCC Rcd at 4147.

WITN's petition for this court's review, in which it is joined by intervenor Park, urges that the assignment to Morehead City is not in the public interest because it would result in a "net loss" of "interference-free" television service. At a minimum, WITN contends, its objections constitute an application for waiver of the "go/no go" feature of the FCC's distance separation requirements. Under applicable "public interest" and "waiver" precedent, WITN maintains, its "net loss" allegations must be afforded a "hard look" by the FCC.

We hold that the FCC's assignment decision in this case properly adhered to the approach the Commission settled on in 1952 when it adopted the Table of Assignments method of allocating television channels. Sixth Report and Order, 41 F.C.C. 148 (1952) (Sixth Report ). The waiver concept does not serve in this context, for petitioner's plea, although ingeniously crafted, is in essence one for agency reconsideration of existing policy. Accordingly, the petition for review is denied.

In the Sixth Report the FCC concluded that a table of television channel assignments--a predetermined master plan for allocating channels--would best balance its statutory responsibilities to "make available ... to all the people of the United States" a nationwide radio service, 47 U.S.C. Sec. 151 (1982), and to effect "the distribution of radio facilities in such a manner that the result is fair, efficient and equitable and otherwise in the public interest from the standpoint of the listening and viewing public...." Sixth Report, 41 F.C.C. at 151 (citing 47 U.S.C. Secs. 303, 307(b)). The Commission chose the Table of Assignments in preference to the "demand" method of allocation ¹ for three principal reasons. The Table would make more efficient use of the limited frequencies available for television service, protect the interests of smaller communities and rural areas, and simplify allocation proceedings. Id. at 151-52. This court upheld the FCC's authority to utilize the Table of Assignments method in Peoples Broadcasting Co. v. United States, 209 F.2d 286 (D.C.Cir.1953), and Logansport Broadcasting Corp. v. United States, 210 F.2d 24 (D.C.Cir.1954).

Implementing the Table of Assignments concept required additional technical and policy decisions by the FCC. The Commission adopted a set of priorities in allocating channels:

Priority No. 1: To provide at least one television service to all parts of the United States.

Priority No. 2: To provide each community with at least one television broadcast station.

Priority No. 3: To provide a choice of at least two television services to all parts of the United States.

Priority No. 4: To provide each community with at least two television broadcast stations.

Priority No. 5: Any channels which remain unassigned under the foregoing priorities will be assigned to the various communities depending on the size of the population of each community, the geographical location of such community, and the number of television services available to such community from television stations located in other communities.

Sixth Report, 41 F.C.C. at 167. In addition, the FCC selected minimum separation distances, rather than "protected contours," as the check against objectionable interstation interference. ² The FCC adopted a set of cochannel and adjacent channel separation requirements, and announced that those separations would constitute the sole protection against inter-station interference. Sixth Report, 41 F.C.C. at 178-89, 197-98; see also 47 C.F.R. Sec. 3.612 (1953) ("[L]icensees of television broadcast stations are not protected from any interference which may be caused by the grant of a new station ... in accordance with the provisions of this subpart.").

In the instant case, WITN proffered for the FCC's consideration an engineering study which projected a net loss of "predicted interference-free" service if channel 8 were assigned to Morehead City. ³ The WITN-commissioned study estimated that the total number of viewers now located within the Grade B service areas ⁴ of WITN, WNCT, WXEX-TV, channel 8, Petersburg, Virginia, and WGHP-TV, channel 8, High Point, North Carolina whose service would be affected by new predicted interference, exceeds the total number of viewers located within the Morehead City station's Grade B service area, taking into account the interference effects of the same four stations on the Morehead City station's viewing area. ⁵ WITN contends that licensing this "net loss" of service cannot be reconciled with the FCC's statutory responsibility to regulate in the public interest. ⁶

The FCC, throughout this proceeding, has relied on and emphasized its adherence to the policies and technical requirements adopted in the Sixth Report. The public interest as a whole, the FCC contends, is well served by the Table of Assignments and the minimum spacing "go/no go" procedure for allocating channels. The Commission declined to reevaluate its firm, longstanding policy that "operators of television stations are only protected from interference to the extent of the minimum spacings and maximum power and antenna height requirements." 2 FCC Rcd at 4147, citing 47 C.F.R. Sec. 73.612(a) (1987); see also 47 C.F.R. Sec. 3.612 (1953).

FCC consideration of WITN's "public interest" argument effectively would require the Commission to reevaluate the policies and procedures adopted in the Sixth Report, as they apply in this case. ⁷ However, it is a familiar principle of administrative law that "[a]n agency is not required to reconsider the merits of a rule each time it seeks to apply it." Meredith Corp. v. FCC, 809 F.2d 863, 873 (D.C.Cir.1987). In the Sixth Report the FCC struck a balance among a number of competing concerns, including the need to "maximize television service to the people of the United States," Brief of Petitioner at 20, as well as the interest of smaller communities in obtaining television stations of their own. See Sixth Report, 41 F.C.C. at 171-72. Similarly, the distance separation rules represent a balance between the need to make efficient use of the frequency spectrum and the goal of minimizing objectionable interference. See Third Notice of Further Proposed Rule Making, 16 FED.REG. 3072, 3077 (1951).

In accord with the FCC, we discern nothing in the present case that would mandate reassessment of the regime settled on in 1952. In particular, we disagree with WITN's claim that the type of "net loss" alleged here was not contemplated by the Sixth Report. The Commission explicitly considered and rejected a commenter's suggestion that "emphasis should be placed on locating the assignments, particularly VHF channels, so that the largest number of people will have television service but not necessarily that the largest number of communities should have one or more television stations of their own." Sixth Report, 41 F.C.C. at 171 (footnote omitted). The FCC's view that "as many communities as possible should have the opportunity of enjoying the advantages that derive from having local outlets that will be responsive to local needs," id. at 172, appears to us to leave no space for the principle advanced by WITN, that a projected "net loss" necessarily signals a public interest...