787 F.2d 645 | D.C. Cir. | 1986
Opinion for the Court filed by Circuit Judge BORK.
Petitioner Beaufort County Broadcasting Company challenges a decision of the Federal Communications Commission denying it permission to construct a new FM broadcast station in Beaufort, South Carolina. The Commission granted the mutually exclusive application of Barnacle Broadcasting Company, Ltd. (“Barnacle”) to provide first transmission service to Port Royal, South Carolina. Beaufort and Port Royal are adjacent communities, the former having a population of approximately 8600 people and three other local stations, the latter 3000 residents and no other stations. The FCC granted a determinative licensing preference to the Port Royal applicant in order to fulfill the mandate of the Communications Act of 1934 (“the Act”) “to provide a fair, efficient, and equitable distribution of radio service” throughout the nation. See 47 U.S.C. § 307(b) (1982).
Petitioner claims that the Commission acted arbitrarily in refusing to grant an evidentiary hearing on whether Barnacle would provide genuine first transmission service to Port Royal, or, failing that, to allow Beaufort County to amend its application to disignate the preferred community as its proposed community of license. Beaufort County Broadcasting also asserts that the Commission erred in granting a determinative section 307(b) preference to Barnacle insofar as both applicants proposed to provide high-power regional service that included the two adjacent proposed communities of license. We affirm the FCC’s decision.
I.
On September 18, 1979, Beaufort County Broadcasting applied for Channel 285A, a Class A low-power broadcasting license assigned within the FM Table of Assignments to Beaufort, South Carolina.
On September 29, 1981, Beaufort County Broadcasting moved to add a so-called Berwick issue to the hearing, alleging that Barnacle did not realistically propose to serve Port Royal and should not, therefore, receive a dispositive section 307(b) preference for providing first transmission service to that community. See Joint Appendix (“J.A.”) at 142; see also Berwick Broadcasting Corp., 20 F.C.C.2d 393 (1969), modifying 12 F.C.C.2d 8 (Rev.Bd. 1968), on remand, P.A.L. Broadcasters, Inc., 40 F.C.C.2d 546 (Rev.Bd.1973) (holding that if one applicant raised a prima facie case that a mutually exclusive applicant did not realistically propose to serve the preferred community specified in the latter’s application, the latter bore the burden of showing that the proposed community has distinct and unmet needs that the proposed station would serve), overruled, Suburban Community Policy/Berwick Reconsidered, 93 F.C.C.2d 436, 449 (1983). Beaufort County Broadcasting relied in its motion upon three facts: (1) that Barnacle had originally planned to designate Beaufort as its proposed city of license and had fully prepared an application with that in mind; (2) that after Barnacle’s last minute change of proposed community, it nonetheless submitted the identical programming proposal that it had prepared for Beaufort; and (3) that Beaufort and Port Royal enjoyed a close relationship that raised doubt as to the legitimacy of a section 307(b) distinction between the two. See J.A. at 144, 153-54.
The Administrative Law Judge (“AU”) refused to add a Berwick issue to the proceeding. Relying on Bie Broadcasting Co., 81 F.C.C.2d 1 (Rev.Bd.1980), which held that an applicant had to make “a stringent threshold showing” and “raise a substantial question” whether the “applicant [would] not realistically serve his community,” id. at 9, the AU found Beaufort County Broadcasting’s assertions as to Barnacle’s true intention in designating Port Royal to be too “speculative” to warrant the addition of a Berwick issue. J.A. at 284.
On December 21, 1981, Beaufort County Broadcasting made a second motion for the addition of a Berwick issue, based on evidence that the designation of Port Royal as the proposed community had been made on the advice of an attorney, following his analysis of section 307(b), and that his recommendation had been immediately accepted by Barnacle’s management without any investigation into Port Royal itself. See J.A. at 288-89. The AU again rejected the petitioner’s motion, noting that, in addition to the reasons stated in his earlier ruling on this question, the mere fact that Barnacle might have acted out of a desire to obtain a section 307(b) preference would
Some five months after the disposition of the second Berwick motion, in December, 1982, the ALJ granted Barnacle the disputed license for a Class C FM station. See Beaufort County Broadcasting Co., 94 F.C.C.2d 578 (ALJ 1982). The AU noted that Beaufort and Port Royal have “identical primary aural broadcast services,” and thus neither has a “greater reception service need” to weigh in the section 307(b) calculus. Id. at 616. As for transmission needs, however, the AU found that Port Royal’s need for a first transmission service outweighed Beaufort's need for a fourth, and that Port Royal, therefore, constituted a “preferred” community for section 307(b) purposes. Id. at 617. The AU also rejected an argument that the broad coverage of the proposed station should negate any section 307(b) advantage enjoyed by Port Royal over adjoining communities within the range of the signal. Id. Finding the section 307(b) issue to be “dispositive,” therefore, the AU awarded the contested Class C FM license to Barnacle. Id. at 617-18.
Beaufort County Broadcasting sought review of the AU’s decision before the Review Board of the FCC, asking, among other things, for review of the AU’s refusal to add Berwick issues to the proceedings. See J.A. at 409-18. In the interval between the AU’s decision and the Review Board’s decision, the Commission adopted Suburban Community Policy/Berwick Reconsidered, 93 F.C.C.2d 436 (1983). The Commission there concluded that the Berwick doctrine and related section 307(b) mechanisms imposed procedural costs that disfavored small community applicants relative to urban rivals with superior financial resources, thus frustrating section 307(b)’s goal of broad dispersion of transmission facilities. Id. at 451. The Commission concluded, moreover, that these costly procedures were unnecessary because the FCC could simply refuse to renew a license for an applicant who failed to provide genuine transmission service to the preferred locale in order to serve a broader market. Id. The Commission in that docket, therefore, eliminated the Berwick doctrine and related procedures beginning with all proceedings currently pending before the FCC. Id. at 457.
Because of this policy change, Beaufort County Broadcasting filed a petition for leave to amend its application to designate Port Royal as its proposed community of license. See J.A. at 468-81. Beaufort County Broadcasting argued that the Commission should, in adherence to its longstanding policy, treat the “adoption of new policies affecting the rights of applicants in pending hearing cases ... as an equitable reason for permitting applicants to amend their applications without further examination.” Id. at 473. Because the elimination of Berwick foreclosed its ability to challenge the bona fides of Barnacle’s proposal to provide first transmission service to Port Royal, Beaufort County Broadcasting contended, this change in policy produced the necessary “substantial impact on Beaufort County Broadcasting’s rights.” Id. at 472.
The Review Board of the FCC rejected petitioner’s objections to the AU’s refusal to add a Berwick issue and also denied petitioner's motion for leave to amend its application. See Beaufort County Broadcasting Co., 94 F.C.C.2d 572 (Rev.Bd.1983). The Review Board noted that Beaufort County Broadcasting had conceded that its challenge to the ALJ’s failure to add a Berwick issue had become moot because of the Suburban Community Policy/Berwick Reconsidered decision. Id. at 574. The Board nevertheless went on to consider the AIJ’s refusal to add a Berwick question for hearing, recognizing the interdependence of that issue and the issue of the desired amendment of Beaufort County Broadcasting’s application. Id. at 575. Holding that the motion to add a Berwick issue had twice properly been rejected, the Board concluded that elimination of the Berwick doctrine did not have “substantial impact” on Beaufort County Broadcasting’s rights and that amendment of the application was thus inappropriate. See id.
II.
Beaufort County Broadcasting’s appeal presents two issues traceable to the Commission’s Berwick doctrine.
Berwick stated that if “significant allegations” were raised indicating “a substantial doubt ... as to whether or not the proposal would provide a realistic trans
We find no error in the AU’s denial of petitioner’s motions. As noted above, see supra p. 647, Beaufort County Broadcasting bore the burden of making a “stringent threshold showing” that Barnacle would not “realistically serve” Port Royal and of raising “a substantial question” as to this matter. See Bie Broadcasting, 81 F.C.C.2d at 9. Beaufort County Broadcasting offered no evidence to show that Barnacle’s programming would not meet the needs of Port Royal, and it offered only the unsupported affidavit of a Beaufort resident in support of the claim that Port Royal is not a viable, independent community. See J.A. at 182. The AU rejected as speculative Beaufort County Broadcasting’s allegations that Barnacle really intended to serve Beaufort and found that Beaufort County Broadcasting had not “established that Port Royal is not an independent community or that it is totally dependent on and is a suburb of Beaufort.” Id. at 285. The record supports those findings.
The only question, therefore, is whether the AU was required to order a hearing on the Berwick issue solely on the basis of Beaufort County Broadcasting’s claim that Barnacle’s proposal for a high-powered, Class C FM station providing reception to some 600,000 people “is wholly inconsistent with Barnacle’s expressed intention to serve as a first transmission facility for a town of approximately 3,000 people.” Motion for Addition of a Berwick Issue, J.A. at 154. We hold that the AU was not required to add a Berwick issue on this basis. Prior to Suburban Community Policy/Berwick Reconsidered, in the AM context, if a high-powered station’s
Since Beaufort County Broadcasting never made the showing that would have entitled it to a hearing on the Berwick issue, it was not affected by the Commission’s retroactive abolition of the Berwick doctrine. This lack of prejudice also undermines the rationale petitioner advanced in seeking to amend its application to make Port Royal its proposed community of license. We therefore affirm the Review Board’s refusal, for lack of good cause, to permit Beaufort County Broadcasting to amend.
III.
Beaufort County Broadcasting asserts that the Commission erred in holding that Beaufort and Port Royal did not constitute a single “community” for section 307(b) purposes. See Brief for Beaufort County Broadcasting (No. 84-1265) at 36. If the FCC had ruled the other way, Barnacle would not have obtained the determinative section 307(b) preference that it gained by proposing “first transmission service” to the “community” of Port Royal.
Petitioner’s argument characterizes the Huntington exception to section 307(b) as one triggered by the scope of geographical coverage of the applicants’ proposed signals. Indeed, this does constitute a crucial element of the doctrine. See Miners Broadcasting Service, Inc. v. FCC, 349 F.2d at 201. If competing applicants propose substantially the same high-powered service to a broad area, the Commission cannot rationally distinguish among the applicants on the basis of differences in the reception services they propose; no such differences exist. But reception does not constitute the entirety of the section 307(b) mandate to provide a “fair, efficient, and equitable distribution” of radio service to the nation. The Commission also must consider the availability of transmission service to provide communities with adequate outlets for local self-expression. See Allentown, 349 U.S. at 362, 75 S.Ct. at 858. It is the Huntington doctrine’s concern for the needs of “local self-expression,” see Huntington Broadcasting Co., 14 F.C.C. 563, 584 (1950), that Beaufort County Broadcasting has overlooked in focusing exclusively on the scope of signal coverage.
With respect to local transmission service, the Huntington doctrine has recognized that, the first transmission service preference notwithstanding, an ostensibly independent and distinct community lacking radio transmission service of local origin might nonetheless have at its disposal adequate broadcast facilities for local self-expression. The Commission has acknowledged, with the approval of this court, that such a situation would obtain if the local community in question constituted “an integral part of [a] vast metropolitan district” containing a multitude of radio services that catered to the needs of the region as a whole, including the needs of those politically distinct communities that did not yet have a first transmission service. See Huntington, 192 F.2d at 34; Armin H. Wittenberg, 30 F.C.C. 417, 419 (1961). Thus, when a license applicant has designated as its proposed community of license a suburban community integrally a part of a larger metropolitan area, and that applicant has sought a license authorizing enough power to cover the wider area, Huntington has required the FCC to disregard “the corporate limits of the ... city named in the applications” and to treat the proposed community as encompassing the entire metropolitan area. See Broadcasters, Inc., 16 Rad.Reg. (P & F) 295, 301 (1957). No single community within the integrated metropolitan area could receive a section 307(b) preference under the Allentown rationale when Huntington has applied.
For a long time after the adoption of Huntington, the scope of the doctrine remained “somewhat obscure” largely because it was unclear under what specific circumstances the Commission would presume the satisfaction of local transmission needs for an otherwise preferred, unserved community. The reception service aspect of the doctrine was relatively uncontroversial; the Commission had only to look at the “power, class of station, and frequency” involved in the proposed license. See Miners Broadcasting, 349 F.2d at 202 n. 6. The transmission service issue, however, proved more troublesome. In 1965, this court was able to discern only “some indication” of the factors relied upon by the Commission in this regard: “the distance of the suburb from the central city”; “the size of the suburb, its economic vitality, and its independence from the central city”; and the relevant market for “advertising revenues.”
Nowhere does petitioner claim to have made, or even attempted to make, an affirmative factual showing that the radio stations in surrounding communities provide programming service that meets Port Royal’s need for local self-expression. Instead, Beaufort County Broadcasting suggests that it does not need to make such a showing because “neither the Commission nor this Court has ever restricted the Huntington policy to dominant city-suburb factual situations.” See Brief for Beaufort County Broadcasting (No. 84-1265) at 46. This argument is inapposite. The Commis-. sion did not attempt to restrict the Huntington policy as petitioner contends. Indeed, the Review Board decision now before us concedes that the single community policy of the Huntington doctrine might have applied in the instant case, but only upon a showing Beaufort County Broadcasting did not attempt. In contrast with the suburban context, in which the Commission is willing to presume the satisfaction of a suburban community’s transmission needs because of the relationship of the suburb to the urbanized area, the Board in dealing with the present non-metropolitan context indicated that "without substantial evidence [the FCC] cannot presume that Port Royal’s need for a first transmission service is being met by stations located in other communities.” 94 F.C.C.2d at 576. We turn, therefore, to the question whether the Commission has acted rationally in applying a more stringent Huntington doctrine threshold when dealing with a non-metropolitan, rather than a central city-suburban, context.
Underlying the Commission’s original decision to adopt the Huntington policy exception was an assumption that the overlapping transmission needs of the central city and contiguous suburban communities, along with the multiplicity of available radio outlets in the typical metropolitan area, would lead in the aggregate to the satisfaction of a given community’s needs for local self-expression. The Commission in Huntington expressly stated, “We ... believe that the programs of a station located in [one] of the contiguous communities [in the metropolitan area], if geared to the needs of the people of the city of its location, would also be geared to serve the needs of
The Huntington doctrine’s policy of treating politically separate entities as a single entity is an “exceptional” one, and the FCC bears the burden of justifying and providing “adequate reasons” for any extension of the Huntington policy. See Miners Broadcasting, 349 F.2d at 200, 201. As a reviewing court, therefore, we are especially loath to order the FCC to extend the policy to other contexts absent a convincing demonstration that such an extension is necessary to satisfy the minimum requirements of rationality. Petitioner has offered no evidence that transmission service conditions in closely related, contiguous non-metropolitan communities compel or even support a general assumption that any such community lacking transmission service of local origin would nonetheless have its needs satisfied by outlets in the contiguous community or communities. Nor does petitioner direct us to any precedent squarely holding that the Commission must apply the presumption of satisfaction of local transmission needs other than in the central city-suburb context,
Finally, we must acknowledge that this required factual showing, which is plainly different from the prima facie showing re
The order of the Commission is
Affirmed.
. The FCC has dealt with its § 307(b) mandate to provide a "fair, efficient, and equitable distribution” of radio service in part by establishing within its rules a distribution of FM radio channels to specified communities throughout the nation. See Revision of FM Broadcast Rules, 40
. Beaufort County Broadcasting raises another issue on appeal. Petitioner argues that the FCC acted arbitrarily in eliminating Berwick before determining what procedures to put in its place. Specifically, petitioner refers to the pending Metropolitan Areas rulemaking, see Notice of Proposed Rulemaking, 48 Fed.Reg. 19,428 (1983), described by the Commission as the "logical next step” after Suburban Community Policy/Berwick Reconsidered. See id. at 19,430. In its Notice, the FCC proposes that the concept of "community" be redefined so that "proposals to serve specific localities within a general metropolitan area should be considered metropolitan area proposals" where the applicant proposes a regional channel. See id. Beaufort County Broadcasting argues that the adoption of such a proposal might have dictated a different result in Beaufort County, and that it was thus irrational for the Commission to eliminate the Berwick doctrine issue from a pending proceeding like Beaufort County when it was about to consider the merits of this new policy. See Brief for Beaufort County Broadcasting (No. 84-1384) at 28 (citing ITT World Communications, Inc. v. FCC, 725 F.2d 732, 754 (D.C.Cir.1984)). The short answer is petitioner was not prejudiced by the abandonment of Berwick because it had already been held, and we think correctly, that petitioner was not entitled to raise a Berwick issue in any event. Petitioner’s objection comes down to the claim that it was entitled to the benefit of a policy not yet adopted. That contention is frivolous.
. Beaufort County Broadcasting suggests that the Review Board never reviewed the AU’s rulings denying Beaufort County Broadcasting’s motions to add a Berwick issue. See Brief for Beaufort County Broadcasting (No. 84-1265) at 56. Apparently, petitioner concludes this because the Review Board decision asserted the "at oral argument the Beaufort applicant acknowledged that [its exception to the AU’s denial of its motions to add a Berwick issue] had become moot because of [the] recent Commission policy decision which retroactively deleted the Berwick issue from all hearings.” 94 F.C. C.2d at 574. That statement by the Board, however, went to the issue of remediability — whether, if the AU had erred in denying the motions to add a Berwick issue, Beaufort County should receive a hearing on that issue. Indeed, the Review Board decision which is now before us explicitly stated that "the Commission’s abolition of the Berwick doctrine did not have a substantial impact on the Beaufort applicant because, prior to that time, it had twice failed to make the factual showing requiring a trial of that issue.” 94 F.C.C.2d at 575. This demonstrates plainly that the Board relied on and affirmed the AU’s denial of Beaufort County Broadcasting’s motions to add a Berwick issue to the comparative hearing. Hence, without running afoul of the Chenery principle, see SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943) ("The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.’’), we may consider whether the AU’s denial of Beaufort County Broadcasting’s motions was correct.
. Petitioner has not raised and we have no occasion to address the question whether the FCC acted rationally in implementing different policies to govern the identical questions for AM and FM licensing.
. Beaufort County Broadcasting sought to provide Beaufort with its fourth such service.
. The Miners Broadcasting court criticized the uncertain scope of application of the Huntington doctrine as it had evolved and called for the "establish[ment]" of clearer "[s]tandards governing the scope of ... Huntington." 349 F.2d at 201 n. 6. In the context of FM radio licensing, the FCC responded by adopting the Berwick doctrine, holding that "[wjhere significant allegations ... indicated] ... a substantial doubt ... as to whether ... the proposed] [license] would provide a realistic local transmission service for [the] specified station location," the applicant had to establish in an evidentiary hearing that the proposed community had
The Huntington doctrine, however, did not die with Berwick. After the issuance of a decision in the pending Metropolitan Areas docket, see supra note 2, the Commission will take Huntington doctrine issues into account in its designation of communities for the FM Table of Assignments. See Debra D. Corrigan, 100 F.C.C.2d 721, 730 (Rev.Bd.1985). Until then, the Commission has indicated that it will apply the Huntington policy by way of the factors that the Commission had used prior to the adoption of Berwick. See 100 F.C.C.2d at 731.
It seems unlikely that Beaufort County Broadcasting could compel the Commission to apply the revived version of Huntington to this case. Because Huntington had been subsumed within the Berwick doctrine at the time the ALJ made his determinations that Beaufort County Broadcasting was not entitled to the addition of a Berwick issue, any attempt at this stage by Beaufort County Broadcasting to have the Commission treat Port Royal and Beaufort as part of a single community under the Huntington doctrine would give Beaufort County Broadcasting an undeserved third attempt to raise a Berwick issue.
. Petitioner places substantial emphasis upon Michigan Broadcasting Co., 20 Rad.Reg. (P & F) 249 (1960). This case, however, fails to support Beaufort County Broadcasting’s sweeping contentions about the applicability of Huntington outside the metropolitan context. Michigan Broadcasting, to be sure, involved applicants in two small cities outside a metropolitan context, and the case described Huntington in sweeping terms. See 20 Rad.Reg. (P & F) at 253. The Commission in Michigan Broadcasting merely decided that a Huntington issue be added to the licensing proceeding for determination, but made no actual determination whether the two competing communities should be treated as a single community on the merits. Beaufort County Broadcasting does not argue that the Commission refused to consider the Huntington issue; rather they insist that, as a matter of law, the Commission must determine that Beaufort County and Port Royal are considered a single community under Huntington. Michigan Broadcasting does not support that proposition.
To support its claim, Beaufort County Broadcasting also cites Pillar of Fire, 90 F.C.C.2d 1022 (1982), in which the FCC refused to designate a § 307(b) hearing in the context of competing small town applicants. When the Commission refuses to grant a § 307(b) hearing, that may tend to suggest, though it need not, that the rival communities should be treated as one. While on its face, therefore, Pillar of Fire lends some support to the assertion that Beaufort and Port Royal should be treated as a single community, it does not constitute precedent for the proposition that the Commission must treat them as one community. The Commission has some discretion to determine whether the public interest requires that a § 307(b) issue be designated, see Radio Greenbrier, Inc., 80 F.C.C.2d 107, 116 (1980), and the mere exercise of that discretion, without more, cannot support Beaufort County Broadcasting’s sweeping assertion that the Commission must apply the Huntington doctrine here. See Miners Broadcasting Service, Inc. v. FCC, 349 F.2d 199, 200, 201 (D.C.Cir. 1965) (requiring an explicit statement and "adequate reasons” before extending the "exceptional policy” of Huntington ). In Pillar of Fire, a renewal proceeding was at issue, and the existing expectations and proven record of the license, considerations not present in an initial licensing such as the one before us, may have counseled the FCC to exercise its discretion to deemphasize § 307(b) considerations in order to serve the public interest. But, and this is the essential point, we cannot really tell why the Commission acted as it did in Pillar of Fire. Pillar of Fire was a hearing designation order, and broad "legal and policy issues ... cannot be explored in [that] limited context.” See Belo Broadcasting Corp., 47 F.C.C.2d 540, 544 (1974). We cannot, therefore, rely on such a precedent for the strong action we are asked to take.