States Court of Appeals
FOR THE DISTRICT
OF COLUMBIA CIRCUIT
Argued February 15, 2002 Decided July 2, 2002
New World Radio,
Appeal of an Order of
argued the cause for the appellant.
Jared S. Sher was on brief.
Chandler, Counsel, Federal Communications Commission, argued the cause for the
appellee. Jane E. Mago, General Counsel,
Federal Communications Commission, and Daniel M. Armstrong, Associate General
Counsel, Federal Communications Commission, was on brief.
Gavin was on brief for the intervenor.
Before: Henderson, Randolph and Rogers, Circuit
Opinion for the
court filed by Circuit Judge Henderson.
opinion filed by Circuit Judge Randolph.
Henderson, Circuit Judge: New World
Radio, Inc. (New World), licensee of AM radio station
WUST, located in Washington, D.C.,
appeals an order of the Federal Communications Commission (Commission or FCC)
granting the application of Birach Broadcasting Corporation (Birach) to renew
its license for WDMV(AM) located in Pocomoke City,
In re Application of Birach Broadcasting Corporation for Renewal of
License of Station WDMV(AM), Pocomoke City, Maryland, 16 FCC Rcd 5015 (2001)
(Renewal Application). New
World contends the FCC erred in approving the Renewal Application
because Birach failed to satisfy the "public interest, convenience, and
necessity" standard of 47 U.S.C. § 309(k)(1) by failing to broadcast for
thirty-two months. Because we conclude
that New World lacks standing, we dismiss its appeal.
Birach acquired the
license for WDMV from Five Star Broadcasting, Inc. (Five Star) on January 15, 1993. Earlier, on May 8, 1992, Birach had applied to the Commission for both
a construction permit to change WDMV's community of license from Pocomoke
City to Brinklow,
Maryland (Brinklow Application)
and for assignment of the WDMV broadcast license from Five Star to Birach
(Assignment Application). The Assignment
Application advised the Commission that Birach's obligations under the purchase
agreement were contingent on the Commission's approval of the Birach Application. See Assignment Application, Exh. I-5. On November
25, 1992 the FCC granted both the Assignment Application and the
Brinklow Application. On January 15, 1993, the day Birach
acquired WDMV, Birach also notified the FCC that it and Five Star had completed
the assignment and that Five Star had taken WDMV off the air as of January 14, 1993. See January
15, 1993 Letter from Lauren Colby, counsel for Birach, to FCC. Birch did not purchase Five Star's Pocomoke
City facilities (for WDMV) at that
time because it planned on resuming operations, after construction, at new
facilities in Brinklow. Id.
On May 6, 1994 Birach applied to the FCC
to extend the Brinklow construction permit beyond the May 25 expiration date,
stating that it was unable to obtain the transmitter site specified in the
Brinklow Application. New
World filed an informal objection to the extension request,
alleging that Birach had engaged in misrepresentations and/or lacked candor in
connection with its certification of site availability included in the Brinklow
Application. While Birach attempted to
secure an alternate transmitter site in Brinklow, WDMV remained off the air
pursuant to successive FCC special temporary authorizations. See August
1, 1994 Letter from James R. Burtle to Birach (three-month
authorization to remain silent); November 9, 1994 Letter from James R.
Burtle to Birach (same); February 13, 1995 Letter from James
R. Burtle to Birach (same); May 19, 1995
Letter from James R. Burtle to Birach (same);
September 11, 1995
Letter from James R. Burtle to Birach (same).
The WDMV license
that Birach acquired from Five Star was scheduled to expire on October 1, 1995. Consistent with the FCC rule requiring a
renewal applicant to file four months before the expiration date, see 47 C.F.R.
73.3539, Birach filed an application for renewal of broadcast station WDMV, Pocomoke
City, Maryland dated May 30, 1995 (Renewal Application). On September
18, 1995 New World filed an informal
objection, claiming, inter alia, that Birach had not operated the radio station
during the approximately 32 months that it held the WDMV license and had no
firm plans to do so. On October 2, 1995 Birach filed an
opposition, arguing that New World's informal objection
did not constitute a petition to deny and that, in any event, New
World lacked standing to file a petition to deny because it could
not show that it would be injured by granting the Renewal Application. In its Reply, New World
acknowledged that "it lacks the required standing to maintain a petition
to deny," which, it explained, was the reason it "filed its pleading
as an Informal Objection, not a petition to deny." October
11, 1995 Reply [to Birach's Opposition to Informal Objection] at 3
On July 15 1996, without having resumed
broadcasting from WDMV, Birach again applied to change the community of license
and relocate WDMV's transmission facilities, this time from Pocomoke
City to Damascus,
Maryland (Damascus Application). The Damascus Application was prompted by
Birach's continuing inability to secure the site specified in the Brinklow
Application. Opposing Birach at every
step, New World filed a petition to dismiss or deny the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996)
(Telecom Act) became effective on February
8, 1996. Section 312(g)
provides that "[i]f a broadcasting station fails to transmit broadcast
signals for any consecutive 12-month period, then the station license granted
for the operation of that broadcast station expires at the end of that period,
notwithstanding any provision, term, or condition of the license to the
contrary." 47 U.S.C. 312(g). Any station silent as of the date of
enactment had one year from the effective date of the Telecom Act--that is,
until February 9, 1997--to
begin broadcasting before the license automatically expired. In order to satisfy the new statutory
directive, Birach purchased Five Star's Pocomoke
City transmission facilities
(which, as noted earlier, it had not done at the time it acquired WDMV from
Five Star) and resumed operations at the Pocomoke City, Maryland site on November 11, 1996.
In light of
Birach's Damascus Application, on January
14, 1997 the Audio Services Division of the FCC's Mass Media Bureau
dismissed as moot Birach's Brinklow extension request and canceled its Brinklow
construction permit. January 14, 1997 Letter Decision from
Linda Blair, Chief, Audio Services Division, Mass Media Bureau. In addition, the letter decision granted
Birach's Renewal Application, stating that "because New World's allegations
in its Informal Objection ... relate only to the station's silent status, ...
we grant the pending license renewal application in light of WDMV(AM)'s
resumption of broadcast operations."
On February 18, 1997, New
World petitioned for reconsideration of the January 14, 1997 letter decision granting
Birach's Renewal Application, reasserting the arguments made in its informal
objection. The Audio Services Division,
by letter, denied New World's petition for
reconsideration and request for a hearing on November 20, 1997.
November 20, 1997
Letter Decision from Linda Blair, Chief, Audio Services Division, Mass Media
Bureau. New World
then petitioned for review by the Commission on November 22, 1997.
Birach opposed New World's petition. On February
28, 2001 the FCC denied New World's
petition. See In re Application of
Birach Broadcasting Corporation for Renewal of License of Station WDMV(AM),
Pocomoke City, Maryland, 16 FCC Rcd 5015 (2001) (Order). The FCC concluded that New World's
charge that Birach had made misrepresentations in connection with its filing of
the Assignment and Brinklow Applications, which charge was first raised by New
World eighteen months after both applications had become final,
was untimely. Id.
at p 8. The FCC further concluded that
New World's argument was based on the erroneous view that Birach was required to
make efforts to resume broadcasting at Pocomoke City while at the same time
seeking to relocate to Brinklow and then to Damascus. Id. Regarding any subsequent Birach
misrepresentation involving Birach's operation of the station at Pocomoke
City, the FCC again found no merit
in New World's allegations. Id. In light of its longstanding policy to
encourage a silent station to resume operations, the FCC affirmed the grant of
Birach's Renewal Application. Id.
at p 11. In so concluding, it also noted
that Birach had never been warned that keeping the station silent could
jeopardize any renewal application. Id.
World filed a timely notice of appeal on March 7, 2001.
Birach subsequently intervened in support of the Commission. New World contends the
FCC decision to grant the Renewal Application was arbitrary and capricious
because Birach failed to broadcast any programming for more than thirty-one
months. For the same reason, New
World contends the FCC's order contravenes the public
interest. Finally, New World
argues that the FCC's failure to examine adequately whether Birach made
misrepresentations coincident with its Assignment and Brinklow Applications
left unresolved questions of fact about Birach's qualifications to remain a
licensee. The FCC first challenges New
World's standing to seek review of Birach's Renewal
Application. Because we agree that New
World lacks standing, we do not reach its arguments on the merits.
challenges New World's standing, asserting New
World is not injured by the grant of Birach's Renewal Application
for the Pocomoke City
license. Section 402(b) of the Federal
Communications Act, 47 U.S.C. §§ 151 et seq. (1982) (Act), provides that
"any ... person who is aggrieved or whose interests are adversely affected
by any order of the Commission granting or denying any application" may
seek judicial review thereof. 47 U.S.C.
§ 402(b)(6). A party is
"aggrieved" under the statute if it satisfies both the constitutional
and prudential requirements of standing.
See Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 663, 670 (D.C. Cir.
1987); see also City of Orrville
v. FERC, 147 F.3d 979, 985 (D.C. Cir. 1998) (citing Louisiana Energy &
Power Auth. v. FERC, 141 F.3d 364, 366 (D.C. Cir. 1998) (interpreting "aggrieved"
party language in Federal Power Act, 16 U.S.C. § 825)).
Article III standing, a party must allege (1) an injury-in-fact that is (2)
"fairly traceable" to the defendant's conduct and (3) likely to be
redressed by a favorable judicial decision.
Jersey Shore Broadcasting Corp. v. FCC, 37 F.3d 1531, 1535 (D.C. Cir.
1994) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)). To establish
"injury-infact," the plaintiff must show "an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical." SunCom Mobile & Data Inc. v. FCC, 87 F.3d
1386, 1388 (D.C. Cir. 1996) (citations omitted). The burden is on the party seeking judicial
review "clearly to allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute and the exercise of the court's
powers." SunCom Mobile & Data
Inc., 87 F.3d at 1388 (quoting Warth v. Seldin, 422 U.S.
490, 518 (1975)). Moreover, "when
the [party] is not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily 'substantially more
difficult' to establish." Lujan,
504 U.S. at 562
World claims to be "aggrieved" by the FCC's grant of
Birach's Renewal Application for Pocomoke
City because renewal allows Birach
to keep its license, moving one step closer to competing with, and therefore
economically injuring, WUST, New World's Washington,
D.C. station. New World's claim is
not without support; the United States
Supreme Court, in the Camp triad, upheld "competitor standing" even
though the economic injury was latent.
See Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152
(1970) (sellers of data processing services had standing to test ruling
allowing national banks to sell data processing services because competition
"might entail some future loss of profits" in that respondent bank
was already preparing to perform such services for two of plaintiffs'
clients); Arnold Tours, Inc. v. Camp,
400 U.S. 45, 45-46 (1970) (travel agents had "competitor standing" to
challenge ruling allowing national banks to provide travel services); Investment Co. Inst. v. Camp, 401 U.S. 617,
620-21 (1971) (investment companies had "competitor standing" to test
regulatory ruling authorizing national banks to operate collective investment
funds). Moreover, the Supreme Court held
long ago that a competing broadcast station has "aggrieved" party
standing under section 402(b) of the Act to challenge the grant of a license to
another "on the ground that the resulting competition may work economic
injury to him." FCC v. Sanders
Brothers Radio Station, 309 U.S.
475, 477 (1940). Nonetheless, the Camp
cases and Sanders Brothers are premised on the petitioner's status as a direct
and current competitor whose bottom line may be adversely affected by the
challenged government action.
Brothers, the Court reviewed the FCC's decision to grant, in a consolidated
hearing, two applicants (Sanders Brothers and Telegraph Herald) separate
licenses to broadcast from the same city, Dubuque,
Sanders Brothers sought to relocate its transmitter and studios to Dubuque,
Iowa after having for some years held a
broadcast license for a station in East Dubuque,
Illinois, located across the Mississippi
River from Dubuque, Iowa. The Telegraph Herald, a newspaper published
in Dubuque, Iowa,
was applying for a construction permit to erect a broadcasting station in that
city. While it found that economic
injury to an existing station was not "a separate and independent element"
that the Commission was required to consider in determining whether to grant a
license, the Court nonetheless concluded that Sanders Brothers, as an existing
station "likely to be financially injured by issuance of the
license," had standing to challenge the FCC's finding that the
"public interest, convenience, and necessity" would be served by
granting the Telegraph Herald application.
Sanders Brothers, 309 U.S.
at 476-77. In particular, Sanders
Brothers alleged that there existed insufficient advertising revenue, talent
and need for an additional station in Dubuque. The Sanders Brothers
Court found standing in the circumstance of two
stations competing for the right to broadcast in one city. In contrast, New World does not, and cannot,
allege that granting Birach's Renewal Application for Pocomoke City will,
standing alone, "financially injure" New World's position in the Washington,
D.C. marketplace. The FCC's decision to grant Birach's Renewal
Application merely allows Birach to retain its Pocomoke
City license. Instead, New World's "competitive
injury" will occur, if at all, only if Birach subsequently seeks and
secures the relocation of its Pocomoke
City broadcast license to the Washington,
D.C. programming area.
In Mount Wilson
FM Broadcasters, Inc. v. FCC, 884 F.2d 1462, 1465 (D.C. Cir. 1989), Mount
Wilson, an FM station licensee, challenged the FCC's decision to allot a new FM
channel on a nearby frequency, claiming that the mere allotment made the
possibility of future competition more likely and thereby adversely affected
the current market value of its station.
Id. at 1463. In establishing a new FM radio station, the
FCC first allots the channel or frequency to a particular community and then
considers applications for a license on that channel. Id.
at 1465-67. In Mount Wilson,
we found "doubtful" whether the mere allotment, without the issuance
of a license, could damage Mount Wilson's
"concrete, economic interest" sufficiently to confer standing. Id.
at 1465. Similarly here, granting Birach's Renewal
Application by itself does not adequately harm New World
to establish standing. In its Reply
Brief, New World attempts to distinguish Mount
Wilson by attaching great significance to Mount Wilson's
"two bites at the same apple" language,
pointing out that New World, unlike Mount
Wilson, will not get two bites because it cannot raise
"programming issues" in any subsequent Damascus
Application/license transfer proceeding. This distinction, if accurate, nonetheless
does not give New World Article III standing.
The "injury-in-fact" requirement "serves to distinguish a
person with a direct stake in the outcome of a litigation--even though
small--from a person with a mere interest in the problem." United States
v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S.
669, 690 n.14 (1973). New
World's interest in raising "programming issues" does
not give it a direct enough stake in the outcome of Birach's Renewal Application
to establish its standing here.
Birach's past attempts to relocate WDMV to the Washington
D.C. area, New World
asserts that the FCC's decision "is tantamount to renewal of license for a
radio station competing in the D.C. market." While there is support in our court's caselaw
for the assertion that a party suffers cognizable injury under Article III when
an agency "lift[s] regulatory restrictions on their competitors or otherwise
allow[s] increased competition," Louisiana Energy and Power Auth. v. FERC,
141 F.3d 364, 367 (D.C. Cir. 1998) (citations omitted), this description does
not fit the FCC's decision here. We read
this holding to apply the "competitor standing" doctrine to an agency
action that itself imposes a competitive injury, i.e., that provides benefits
to an existing competitor or expands the number of entrants in the petitioner's
market, not an agency action that is, at most, the first step in the direction
of future competition. The difference is
critical because New World will have an opportunity to
challenge any FCC decision that directly affects it as a competitor. See, e.g., February 18, 1997 New World Petition to Dismiss and Deny
Damascus Application. While the court is
aware of Birach's apparent desire to compete in the Washington,
D.C. market, New World's
"chain of events" injury is too remote to confer standing. We cannot say, as we did in Orange
Park, that New World
has specified a "concrete, economic interest that has been perceptibly damaged
by the Commission's award." Orange
Park, 811 F.2d at 673 (emphasis
added); see also Associated Gas
Distribs. v. FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990) (competitor had
standing because "the challenged action authorized allegedly illegal
transactions that have the clear and immediate potential to compete with petitioners'
own sales" (emphasis added));
National Treasury Employees Union v. United States, 101 F.3d 1423, 1427
(D.C. Cir. 1996) (no standing based on injury not "certainly
impending"); Northwest Airlines,
Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986) (that party can "imagine
circumstances in which it could be affected by the agency's action"
insufficient for standing). In addition,
New World's "chain of events" argument depends
on the independent actions of third parties, distinguishing its case from the
"garden variety competitor standing cases" which require a court to
simply acknowledge a chain of causation "firmly rooted in the basic law of
economics." United Transp. Union v.
ICC, 891 F.2d 908, 913 (D.C. Cir. 1989).
Moreover, Birach has now purchased Five Star's Pocomoke
City facilities in order to
broadcast from that location. Finally, New
World's "tantamount" contention assumes that Birach,
which has failed in past efforts to relocate the license, will now persuade the
FCC to reverse field.
For the foregoing
reasons, New World's appeal is
Judge, dissenting: Because the FCC has
not yet granted the latest application by Birach Broadcasting Corporation (the
intervenor in this case) to relocate its station into the Washington, D.C.
radio market, the majority holds that New World Radio (the petitioner) does not
have standing to challenge the FCC's renewal of the very broadcast license
Birach seeks to relocate. Economic
competitors, the majority holds, have only suffered a constitutional
injury-in-fact where the petitioner is "a direct and current competitor
whose bottom line may be adversely affected by the challenged government
action." Maj. op. at 9. The license renewal "standing
alone" is not enough. Maj. op. at
disagree. A party need not wait until
after an allegedly illegal agency action causes injury to bring suit. The test for constitutional standing is less
severe: a plaintiff's injury needs to be
"actual or imminent, not conjectural or hypothetical." Bennett v. Spear, 520 U.S.
154, 167 (1997). For almost ten
years--its entire term of ownership--Birach has sought to move WDMV into the
D.C. broadcast market. The FCC approved
the company's first application to move, and Birach is currently attempting to
resolve the FCC's technical objections to its second request. WDMV did not broadcast for almost four years,
further proof that Birach sought the WDMV license so it could make money in the
market, rather than in the unprofitable Pocomoke City,
Maryland, market. Any competitive injury is surely
I would affirm
the FCC. In renewing the license for
WDMV, the FCC had to decide whether the station had served "the public
interest, convenience, and necessity."
47 U.S.C. § 309(k). We give
"substantial judicial deference" to the FCC's judgment in this
regard. FCC v. WNCN Listeners Guild, 450
U.S. 582, 596
(1981). On the "unique facts of
this case," including the FCC's repeated assurances that the station could
remain silent as it sought to relocate, the FCC renewed WDMV's license despite
its failure to broadcast for several years.
In re Birach Broad. Corp., No. BR-950608YB, at 6 (Feb. 22, 2001).
New World Radio's arguments have not convinced me this action was beyond
the FCC's power, so I would affirm the agency's decision on the merits.