Press Communications LLC v. FCC, 16-1290

Press Communications (WBHX) sought a minor modification to move its transmitter inland, proposing an involuntary frequency swap with Equity Communications (WZBZ) so Press could occupy 99.3 instead of 99.7.
The swap would leave Equity on a frequency/position that would be short-spaced to Delaware station WJBR; Equity’s current short spacing to WJBR is grandfathered but the proposed channel change would not meet current spacing rules.
The swap also would have created a short-spacing conflict between Equity (if moved) and Atlantic City Board of Education station WAJM; WAJM had an expired license when Press filed but filed to renew shortly after Press’s application.
The FCC’s Media Bureau found two spacing defects and gave Press 30 days to cure; Press did not cure or timely seek a waiver and the Bureau dismissed the application; the full Commission denied review.
Press appealed, arguing (1) grandfathering under 47 C.F.R. § 73.213 allows relocations without meeting § 73.207 spacing, and (2) the FCC should have applied the cut-off rule against WAJM’s late renewal submission.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a grandfathered short-spaced station may be involuntarily moved to another short-spaced channel without meeting § 73.207 or obtaining a waiver	Press: § 73.213 permits modification/relocation of grandfathered short-spaced stations, so no spacing rule bars the proposed swap	FCC: § 73.203 Note and § 73.207 require spacing compliance at the proposed site; grandfathering does not waive spacing for channel changes absent a waiver	Court: FCC reasonably required compliance with § 73.207 or a waiver; dismissal upheld
Whether the FCC had to apply the cut-off rule to deny WAJM’s late renewal because Press’s application was filed during WAJM’s lapse	Press: WAJM’s failure to timely renew made Press’s application first acceptable and should cut off WAJM’s late renewal	FCC: Bureau considered WAJM an operational station and processed the renewal; Bureau’s later policy reduces such lapses	Court: Did not reach merits because the WZBZ–WJBR defect independently supports dismissal

Auer v. Robbins, 519 U.S. 452 (1997) (agency's interpretation of its own regulations controls unless plainly erroneous)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard for agency action)
SEC v. Chenery Corp., 318 U.S. 80 (1943) (reviewing courts may only uphold agency on grounds the agency articulated, but the agency's path may be discerned)
Rural Cellular Ass'n v. FCC, 588 F.3d 1095 (D.C. Cir. 2009) (deferential review of FCC decisions)
Chiquita Brands Int'l, Inc. v. SEC, 805 F.3d 289 (D.C. Cir. 2015) (no Chenery violation where court-invoked reasoning supplements concise agency explanation)
Casino Airlines, Inc. v. Nat'l Transp. Safety Bd., 439 F.3d 715 (D.C. Cir. 2006) (agency's rationale need not be a model of clarity)
Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (1974) (standards for judicial review of administrative action)