Nueva Esperanza, Inc. v. Federal Communications Commission
2017 WL 3091561
D.C. Cir.2017Background
- Nueva Esperanza, a nonprofit in Philadelphia, applied in 2013 for a Low Power FM (LPFM) construction permit; its application was part of an 11-application mutually exclusive group.
- The FCC awards LPFM licenses using a six-factor point system; applicants tied for highest points may submit time-share proposals that aggregate points.
- Seven applicants were tied at five points; four applicants (the Timeshare Applicants) filed a time-share agreement and aggregated points to reach 20 points; Nueva Esperanza and the NAACP Project filed a separate time-share and received 10 points.
- Nueva Esperanza had earlier filed a petition to deny, alleging that several Germantown applicants had coordinated applications in violation of the FCC rule forbidding multiple applications on behalf of the same party, relying on an FCC Media Bureau blog post for support.
- The Media Bureau denied the petition and approved the Timeshare Applicants; the full Commission denied review, holding the Blog Post did not bar pre-application coordination to form a time-share so long as applicants remained independent and truthful in disclosures.
- Nueva Esperanza appealed, arguing the Blog Post prohibited pre-selection time-share arrangements and that it lacked fair notice of the FCC’s interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCC Blog Post barred pre-tentative-selectee time-share agreements | Blog Post forbids preexisting agreements to share time/points before tentative selectees are announced | Blog Post permits applicants to apply separately and later aggregate points if tied; the prohibition targets agreements that let an ineligible non-selectee share airtime | Court held FCC’s reading of the Blog Post is reasonable and Appellant’s interpretation is incorrect |
| Whether Nueva Esperanza had fair notice of the FCC’s interpretation | Argued it lacked fair notice and would have pursued different strategy if policy were clear | FCC argued fair-notice claim was forfeited because it was not properly presented on review to the Commission | Court held the fair-notice argument forfeited for failure to present it to the Commission |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (deference to agency interpretations of their own regulations)
- Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199 (courts ultimately decide regulatory meaning despite agency interpretations)
- Satellite Broad. Co. v. FCC, 824 F.2d 1 (D.C. Cir. 1987) (fair-notice principle in FCC context)
- Bartholdi Cable Co. v. FCC, 114 F.3d 274 (D.C. Cir. 1997) (issue preservation requirement for Commission review)
- NTCH, Inc. v. FCC, 841 F.3d 497 (D.C. Cir. 2016) (standard for whether an argument was reasonably presented to the Commission)