*2 WALD, Before WRIGHT and Circuit Judges, MacKINNON, Senior Circuit Judge.
Opinion for the court filed Circuit Judge J. SKELLY WRIGHT. *3 Opinion concurring part dissenting and part Senior Judge filed Circuit Mac- KINNON. WRIGHT,
J. SKELLY Judge: Circuit This case an appeal concerns from a se- ries of Federal Communications Commis- sion hearings decisions to hold on sev- petitions deny eral to renewal of the licens- KQED, Inc., es of operator the owner and public television stations in San Francis- co, California. The presented issue whether reasonably the FCC could have not, found that the here had petitions, their specific made allegations raising questions substantial and material of fact prima that would constitute a facie showing KQED’s that renewal of licenses public was not in the interest. As dis- below, cussed we hold that the Commis- were, sion’s exception, actions with one rea- respect appellants’ sonable. With to alle- gation misrepresentation to the FCC, however, we find that the FCC’s dis- missal of hearing without a was arbitrary capricious and and we there- fore reverse and remand for a on that claim. Rice, City,
David M. New York Brodlieb, whom Barbara S. New City, York Background I. brief, appellants. was on for KQED holds broadcast licenses for two Pash, Jr., F.C.C., public Grey C. Atty., (KQED-TY television stations Wash- and D.C., ington, KQEC-TV) Fein, with whom Bruce and one FM E. radio station Counsel, (KQED-FM) Gen. and M. in San Armstrong, Daniel These li- Francisco. Counsel, F.C.C., currently censes years Associate Gen. run for Wash- three at a D.C., time, ington, were on and appellee. brief for renewal schedule has Stephen Sharp, called Mayo, applications A. Jane E. for renewal and L. Tollin, F.C.C., Attys.,
Andrew and Washington, D.C., appearances appellee. entered many public broadcasters, As with Marks, Washington, D.C., D.
Richard “member-supported” entity. is a Toohey with whom Daniel W. Appellants ease, Todd D. in this public interest brief, Gray on were for intervenor. groups group Caro- representing and a a faction lyn Wimbly, D.C., Washington, A. KQED, entered dissatisfied members of first appearance an intervenor. petition deny filed a renewal petition Before Commission had ruled on the in 1977. In that licenses broadcast (1) petition for of its reconsideration decision generally they alleged renewals, granting appel- the 1977 license op- its noncommercial status betraying deny KQED’s allowing petition lants filed a new private gain erating for petition with its 1980 license renewals. This to interfere activities commercial 30, 1980, community; (2) deny, filed on made the October obligation to service the same as those in the earlier to disclose finan- KQED had refused requested meetings petitions again denial of open information and to cial KQED's (this applications license renewal fully; (3) was inade- public news, ones) time or at least a serving local af- quately fairs, applications. Deny, needs those See Petition programming and children’s 30, 1980, (4) reproduced in JA at community; and was October petition Both the for reconsidera- sufficiently pursuing affirmative action 355-383. petition I Deny deny tion and the policies. Verified Petition to Re- *4 License, 28, by 1980 license renewals were denied the newal Broadcast October of 2, 1977, (JA) February on Appendix at Commission 1982. See In reproduced in Joint KQED, (KQED Re Inc. They requested Applications 26-50. (1982), II), Again, KQED’s applications be de- 88 FCC2d 1159 JA 6. the license renewal hearing license granted applica- be held on the FCC the renewal nied but also a 25, hearing. a at tions they factual raised. id. without issues See 50. JA 4, appellants On March 1982 filed anoth- 14, petition for denied er reconsideration—this time of May On 1980 the Commission KQED II, KQED’s li- denial of the petition granted and 1977 Commission’s hearing. petition deny It the 1980 renewals. cense without a held See renewals Petition for Reconsideration of Denial of that the did raise sub- 1982, 4, questions Deny, repro- Petition to March stantial and material statute, petition at applicable 47 in JA 620-635. This U.S.C. duced under § by 309(d) (1982), Septem- a also the Commission on hearing mandate denied would 20, In re Applications and concluded that ber 1983. on the license renewal See (KQED III), 83-403, KQED, would Inc. FCC re- renewal of licenses be produced JA at 20-25. In re: License Renew- public interest. See KQED, (KQED I), Applications al Inc. appellants appeal In this consolidated (1980), 1. FCC2d 973 JA 77 challenge the of the FCC hold failure 10, appellants hearings granting filed with 1977 and On June 1980 before they Specifically, a 1980 license petition for reconsidera- renewals.1 the Commission argue petition I. for recon- that three of their claims constituted tion of In this hearing: press- showing a appellants, in addition to a sufficient mandate sideration claims, (1) misrep- original a the claim that the station made ing their asserted new knowingly regarding its 1979- allegation: had lied resentations the FCC KQEC-TV; (2) deactivating for 1980 its reasons deactivation to FCC about early and claim that commercial activities conducted KQEC-TV in late 1979 by unacceptable to an the station interfered Petition for Reconsideration Memoran- 80-245, inter- and FCC June extent with station’s local Opinion Order dum (3) and the claim that 10, 1980, est reproduced programming; in JA at 235-260. renewals. III dealt with the 1980 license 1. On 1982 filed a notice of March portions appeal appeals from order with this were consolidated court These two and II that dealt with I This consol- court on November abey- appeal license was held renewals. This appeal with the 1977 and 1980 thus deals idated pending disposition re- ance FCC of the claims only. Any proceedings with license renewals Then, garding the 1980 license renewal. on applica- respect license renewal 20, 1983, appellants filed notice of October tions are not issue. appeal portions II and from “open comply formally designate application with for the station failed to hear * * § 309(e). s.” meeting” the Public Broad- Id. provisions of § (1982). seq. casting Act. 47 390 et U.S.C. statutory puts standard the Commission’sfailure They contend that heavy party submitting peti on a burden these claims arbi- to hold deny: applica tion to For a on the noting ap- trary capricious. After and must, required, party tion to be the stan- plicable statutory provisions and statutorily required specificity support, and review, judicial consider dard for we will raise controverted factual issues these claims turn. each of party substantial and material. First the requisite specificity
must show the and ultimate, support. “The con Statutory II. Requirements clusionary general allega facts or more Judicial Review Standard belief, tions supported on information * * * provides Communications Act affidavits, general are not suffi granting of a broadcast license FCC, cient.” Stone F.2d Communications when Federal Commission (D.C.Cir.1972) (quoting S.Rep. No. granting finds that the li- the Commission (1959)). Cong., 86th 1st Sess. See United interest, “public cense will serve the conve- (D.C.Cir. States v. 652 F.2d 89-90 § nience, necessity.” 309(a). 47 U.S.C. 1980). Further, truly must provides The Act also a mechanism for factual; a dispute proper over the infer parties object granting interested to the agreed-upon ences from to be drawn facts *5 “Any party may in of licenses: interest file qualify. does not See Lakewood Broad petition deny a to any with the Commission Service, FCC, casting v. F.2d Inc. 478 919 application a broadcast Id. [for license].” (D.C.Cir.1973); League Anti-Defamation § 309(d)(1). addition, up In Act sets FCC, 169, B’nai B’rith v. 403 171 F.2d petitions: for such standards (D.C.Cir.1968), denied, 930, 394 cert. U.S. allega- 1190, contain petition specific (1969), The shall 89 22 S.Ct. L.Ed.2d 459 cited of fact sufficient to approval tions show the with in Broadcasting Columbus petitioner FCC, in party (D.C. is a and that a v. 324 interest Coalition 505 F.2d FCC, grant Cir.1974); of the a application supra, broadcast Stone v. 466 F.2d [for And, prima finally, at 323. would be facie inconsistent factual issues license] public raised must be allega- with substantial and material. Such [the interest]. For, shall, recently, as this court noted except tions fact for those of “[w]here disputes exist, taken, hearing factual a may official is not au which notice be be * * tomatically required *.” supported by person affidavit Tele-Media of a or (D.C.Cir. FCC, Corp. v. 697 F.2d 409 persons personal knowledge with there- * * * 1983). hearing is not required to re of. “[A] solve issues which the Commission finds Finally, Id. the Act guidelines creates for ‘material,’ are not either ‘substantial’ or dealing the Commission to follow in with regardless of whether the facts involved deny. petitions such to In the face dispute.” FCC, supra, are in v. Stone 466 petitions grant may Commission F.2d hearing at 323. Thus a on a hearing, only license without a if but it * * * petition deny required, to be a “finds that there are substantial no clearly adequately alleged, must be and it questions and material of fact and that a factual, it must be and must rise to the grant application of the be would consist level of a substantial and material issue. ent public with Id. [the interest].” § If, 309(d)(2). hand, on the “a petition deny other sub Whether or not a question and showing stantial material of fact has is made under stat presented ute, any or the Commission for rea will mandate a is a determina lies, instance, son granting is unable to tion first which [find interest], is in public Consequently, license judicial shall Commission. re- FCC concluded that it did not. very- is determinations view of Commission II, JA 9. review reasoning when the FCC2d Our agency deferential scope of its this conclusion examines now whether it acts within the Commission reasonably supported by finding review is can be expertise: scope our “[T]he narrow; expertise not quite appellants’ defer ade- we within experience quate of the Commission under the standards enunciated only above, i.e., insufficiently and would reverse specialty specific sup- its or field is position arbi- dispute, Commission’s ported, presenting where the factual or Id. at unreasonable.” trary, capricious, present or a substantial and materi- failing to 322; Nat’l Ass’n Better also al issue.2 To review the FCC deter- see FCC, v. 591 F.2d Broadcasting allegation had not been mination (D.C.Cir.1978); Broadcasting specificity requires requisite Columbus made with the 324; FCC, F.2d at supra, survey allegation sup- v. Coalition this court Telecasters, Inc. Michigan documentary porting West affidavits and evi- (D.C.Cir.1968). Thus where F.2d 688 when dence that were before FCC appears decision reasonable agency made decision. supported by the material before generally presented by ap- not, it, will not intervene. We we will Since pellants to the FCC. however, where the to intervene hesitate KQEC-TV, public has television owned appears unreasonable or agency decision the main station smaller than San Francis- the facts on inadequate relation to bears KQED-TV co television station but purportedly based. which it is also Francisco. After ac- located San sum, reviewing In decision quiring this station failed to we not to hold must operate Commission five years it for almost between statutory mindful of burden 1972 and 1977. initial “darken- petitioners defer to the placed on but also ing” KQEC-TV in 1972 was due bud- of whether that burden agency’s evaluation accomplished getary problems and has been carried where that evaluation permission with the FCC. See Re With these considerations in reasonable. KQED, Inc., Applications 57 FCC2d *6 mind, the specific allega- turn now to we 264, 1975,however, (1975). the 269 In FCC by in this case tions made and KQED operation ordered to resume of by disposition the of those the KQEC-TV days, noting that within 90 con- Commission. KQEC- suspension operations of at tinued public interest TV would not be in the Analysis III. of FCC Decision To Not broadcasting threatening if were sanctions Hearing Hold a Under Section 309 period. 90-day not resumed within the Although immediacy of this order id. the Misrepresentation by A. Claim of by grant was later of a blunted KQED to FCC limit, 90-day nine-month extension of the Appellants claim first that their alle Inc., KQED, Application 58 see In Re of misrepresenta made gations KQED that eventually (1976), order FCC2d 751 the be- decision regarding tions to the FCC its to KQED In 1977 resumed came effective: (cease KQEC-TV broadcasting) “darken” KQEC-TV. operations at a and materi late 1979 raised substantial 4, KQED again On November 1979 dark- question of that a al fact mandated KQEC-TV, notifying the Commission application. The ened on the license renewal adequate allegations determining whether were contends that our review of 2. The Commission hearing, allegation’s be must held mis- its resolution whether made to mandate a particu- misrepresentation any on claim should representation other are no different than larly previous of our hold- deferential because allegations. language cit- The and cases factual ings findings misrepresentation that as to support by do not a differ- ed the Commission findings “peculiarly its area of within” ent result. expertise. appellee at 17-18. See brief for 2, 1979 that letter by representations by dated November at Thus made a master suspension routing KQED would “enable regarding darkening to its FCC explaining replaced” switcher to be KQEC-TV clearly operation indicated that maintain a licensee KQEC-TV not] impossible “[t]he [could was until mas- (TV) KQEC during for separate schedule switcher had replaced ter been and that it time at 265. At that this installation.” JA for only was that reason that the deactiva- KQED represented to FCC had tion occurred. expected to until darkening last was KQED While content of the commu- KQEC-TV re- 1979. Id. did December during period to nications FCC this is not in operation approximately for three sume dispute, KQED’s the actual for reasons KQED during weeks December but KQEC-TV darkening of are. Appellants again darkened station the months KQEC-TV suspended contend January through May 1980. during operation the first five months alleged by misrepresentation ap- solely generalized for the budgetary pellants in this case centers around problems FCC had warned redarkening reasons for actual longer it could no use justify continued KQEC-TV during the first five months of non-operation is, they of the station. That compared representation to the as allege KQEC-TV darkened so by KQED regard- made the time FCC budgetary relieve constraints ing those There is reasons. no factual savings operating cost achieved repre- here as the content KQEC-TV during period.3 during sentations made FCC period. Following Specifically, appellants allege November that at the FCC, KQED notification to the sent December meeting board regard- three additional letters to FCC temporarily at which the decision to deacti- KQEC-TV ing darkening. the status KQEC-TV made, vate no mention On December counsel any relationship made of between the deac- FCC, again noting wrote that “[t]he tivation and the installation of a master operation suspension was occasioned routing that, fact, switcher and the dis- proposed installation of master rout- solely cussion of the deactivation centered switcher, replacing previous equipment. savings cost that such deactivation the switching equipment Because both would enable. This is supported KQED(TV) KQEC(TV) part Kroll, aby Henry sworn affidavit from system, routing same un- the licensee was former director of who attended the separate during to maintain a able schedule meeting December 20 at which the decision installation.” JA at This letter was made. In his affidavit Kroll states *7 further noted because of installation KQEC-TV the that decision deactivate delays, KQEC(TV) “station un- [would] solely budgetary taken as was measure 1, to return to prior able the air to March contemplat- and that at that time the board 25, February 1980.” Id. On 1980 another KQEC-TV probably ed that would remain letter from to FCC informed FCC 31, through August deactivated See 1980. delays shipment additional in the And, respect at 269. with JA to the statu- components the equipment the new requirements tory 309(d)(1), the Section during would make restoration of service alleged affidavit states that the facts there May the last week in a more realistic esti- personal knowledge. are Kroll’s JASee mate. at Finally, See id. 263. a further at 270. 22, April letter on gave 1980 more details affidavit, noted, the delays technical and reaffirmed a The Kroll it should be restoration date at the of May. end id. distinct See contains two factual assertions. parties appeal problems 3. None of the involved in at time. this this disputes experiencing budget was ’80, (in September).” Year Fiscal Id. at First, of directors that the board asserts 421. budgetary reasons only general discussed KQEC-TV meeting at the deactivating alleged appellants Thus while station the decision to deactivate where KQED represented to the FCC that Second, at it notes that made. KQEC-TV was mandated deactivation made to deactivate was time the decision replacement of a master by the switcher contemplated the deactiva- the board last until the that would switch- and through Au- probably continue tion would (a was installed reactivation date er end of 31 is the (August 1980. gust clearly implied in the March year.) fiscal letter), it in fact had December evidence of to this direct KQEC-TV budget-saving
In addition deactivated as Decem- board’s reasons behind originally anticipated measure that it would decision, appel- deactivation 31, 1980, ber through August end of its last documentary evidence submitted lants have year. 1979-1980 fiscal Kroll affidavit. which corroborates KQED’s response resulting indicates evidence additional presented decision. When FCC consistently KQED, question, at the time this supporting evidence that the deac- members told viewers petition in their for reconsidera- to the FCC budgetary con- from had resulted tivation petition to tion of denial of their last probably and that it would straints renewal, KQED deny the license re- 1980. For exam- August the end of until explanation that the sponded with the bud- approved which ple, the resolution board that had been referred getary constraints KQEC-TV noted that the deactivation budgetary generalized not the con- to were necessary temporari- it is now “whereas experiencing the station was straints that [KQEC-TV] for continued ly deactivate ones extraordinary at the time but reasons,” would now budgetary the board would have been created the addi- possible options regarding contemplate KQEC-TV expense operating tional op- KQEC including the what do — equipment the new technical was be- while disposing of it. reactivating it or tions of Opposition installed. Petition See report of the JA at 267. And See Reconsideration, 25, 1980, 1-7, June at meeting that was December board at reproduced in JA 302-308. magazine mailed monthly in the contained support explanation meeting that at that out to members noted in which an affidavit submitted proposed “[KQED Tiano President] budgetary President Tiano stated that resolving step first toward deficit [of that would have been created constraints year] fiscal for the 1979-1980 additional, expense of unbudgeted, cutting [KQEC-TV].” Id. of service on $1,000.00 per cost week that it would have Tiano, in President the same issue keep KQEC-TV on the air while the magazine, stated that the recommendation being.replaced routing master switch was temporarily deacti- meeting made at the referred to budgetary constraints were KQEC-TV a review of this vate “followed appellants. cited in the documents budget projections operating and the year’s (This expense resulted at 320-322. JA carrying has been capital deficit station equipment to rent additional from need Finally, an inter- since 1972.” Id. *8 of replace which out commis- to that was KQED prepared in Feb- nal memorandum sion.) He the statements also stated that responses ruary to fre- 1980 of “official” meeting regarding the made at the board complaints stated that quent viewer “[t]he KQEC-TV entirely related deactivation of KQEC-TV off the was decision take air] [to long-term plans making to the need for KQED in Board of Directors by made the KQEC-TV’s at future. See id. large regarding help the station’s an effort to reduce the letters He noted further that the 323-324. budget Official word is that deficit. way misrepre- were to the FCC in no until the end of sent temporary, is at least move the de- misrepresentation because of of the situation tions did not raise sentative did, fact, KQEC-TV in lays reactivating question in substantial and material of fact. (albeit indirectly) from de- entirely result id. See equip- the new lays in the installation of 3. Review the With FCC decision. of Finally, he stated ment. id. at 321. See Commission, all due deference to the its had, begin- KQED’s from the that intention findings respond here do not adequately to KQEC-TV when ning, been reactivate by the appellants. made The equipment the had installed. id. been See parties dispute do not that the deactivation in a second affidavit also submitted temporary, was that new equipment was Engineer as- which Chief Zastrow deactivation, during installed the and that there been a need to re- serted that had KQED regularly informed of the FCC the delivery place equipment the old and that progress of the installation. This common system longer taken much the new had however, ground, does not mean that no originally anticipated, causing than deacti- dispute appel- exists. The thrust KQEC-TV past planned vation the De- that, regardless lants’ is of what 29,May date until cember reactivation eventually happened, the initial deactiva- He 1980. id. at 326-330. also noted upon tion was decided for reasons other $1,000.00 operat- per expense the week equipment than those concerned with the peri- ing KQEC-TV during replacement installation —technical budgetary. or od. at See id. 328. KQED, hand, (after- on the explains other presented Thus was the-fact) although that the deactivation Appellants alleged FCC. that had was, fact, (a in budgetary which ap- fact KQEC-TV generalized taken off the air for in in peared no form its communications to budgetary reasons in December FCC),4 specific it resulted from the that it when was deactivated that month budgetary problems that have would been August through deactivation con- by operating during equipment caused KQED, hand, templated. other con- KQED’s from ongoing installation and not KQEC-TV had
tended that been deactivat- budgetary problems. The Commission at- extraordinary ed because costs that tempts explain away this difference it operating during the installation of the noting “KQED deny that does not that it equipment have new would incurred—addi- budgetary tempo- reasons that led tional costs which could ill afford suspend KQEC rarily operations pend- given ongoing budgetary problems. its On ing equipment repair.” appel- Brief for sides, documentary both affidavits and/or simply point. lee at This is presented. evidence were particular The difference is over the type Commission, considering budgetary after constraints that caused the conflicting allegations, concluded “that the deactivation. And is clear that two was, fact, KQEC-TV Appellants shut-down tem- versions conflict: assert was, fact, porary; equipment that new budgetary discussions about deacti- shut-down; during KQEC-TV installed and that vation no contained mention kept regularly savings licensee the Commission whatever cost referred to the progress informed towards installa- equipment additional costs created equipment.” II, installation; tion of the new asserts that those addi- Consequently, were, fact, FCC2d at JA 9. tional costs what caused the appellants’ Appellants Commission found that asser- budget-saving deactivation.5 express opinion interesting 4. We no on the conclu- note It that these extraordina- $1,000 assuming extraordinary ry per comprised very costs of week sion ex- percentage KQED’s small were penditures darkening 1979-1980 total reasons for budget KQEC-TV, of some $14 million. It is also interest- letters the FCC constitut- appellants’ allegation to note with the misrepresentation. ed no money operating KQED saved during KQEC-TV the month of November
679
stantial
originally
given
evidence of intent can
that the deactivation was
contend
only by
end of the
one
planned
party
party
to extend until
whose intent
—the
that indicates
year
1979-1980 fiscal
fact
in question.
party
is
But to bar a
who
—a
general budgetary con-
alleges telling
connection
pertinent
subsidiary
FCC,
cerns; KQED
as it told
asserts
judicial
ground
facts from
review
on
KQEC-TV
reactivate
planned
along
all
that Commission decisions as to inferences
equipment
was com-
when the
installation
simply
dispositive
are
can
not be counte
pleted.
Allegations
in this
nanced
context.
KQED management stated different rea
Having
the existence
observed
sons to its board of directors and to its
conflict,
we
decide whether
FCC
must
reasonably
present
that a
members than to the FCC do
a
have decided
hear-
could
though
the statute.
required
dispute,
not
under
was
factual
even
is
is,
That
we must determine whether the
KQED’s
over
actual
intent —an intent
been
statutory tests
above have
met.
noted
subsidiary
which must be inferred from the
parties.
fact
its statements to third
This
any dispute
The FCC contends
supported
conclusion is
decision
our
facts,
appellee
here
brief for
is not over
see
Citizens Committee to Save WEFM v.
(“the
undisputed”),
largely
at
facts are
17
FCC,
246,
(D.C.Cir.1974)(en
F.2d
266
506
inferences. This contention is
but over
banc), in which
held that an evidentiary
we
First, although most of the
merit.
without
hearing
required
where
con
underlying facts of
case
facts
flicting
going
misrepre
to a similar
relating
dispute,
specific facts
sentation issue centered around statements
KQEC-TV
KQED’s
darkening
for
reasons
parties.
made to third
See also Citizens
Further,
question
although the
are.
Committee to Preserve Voice Arts in
might
intent here
be termed an
FCC,
(D.C.Cir.1
436 F.2d
Atlanta v.
inference,
accept
an
we cannot
such
inter
970).6
of which would be to
pretation
result
—the
denying hearings
all FCC
insulate
decisions
FCC also
that the misrep
contends
misrepresentation issues such as intent
on
here,
assumed,
at
if
resentations
issue
even
judicial
Questions
in
any
from
review.
cannot mandate a
an in
because
factual
will treat them as
tent are
and we
misrepresentations
tent
deceive via the
Swint,
v.
such. See Pullman-Standard
alleged
supported
adequately
273,
1781,
288,
1789,
102 S.Ct.
456 U.S.
by appellants.
sup
This contention cannot
(1982) (“Treating issues of in
L.Ed.2d 66
port the otherwise unreasoned decision in
for
factual matters
the trier
fact
tent as
As
this case.
this court has noted in a
commonplace.”);
is
see also U.S. Postal
case,
fundamentally
unfair
Aikens,
similar
Board
v.
Service
Governors
challenge
FCC to dismiss a
where
chal
3,
714 n.
1481 n.
U.S.
103 S.Ct.
party
seriously
true,
lenging
questioned
has
(1983).
It is
especially
75 L.Ed.2d
representation
validity of
defend
in a
such
situation
as
where
ing party
party
is the
with access to the
question
party,
at
of a
issue is
intent
disputed
may
turn
relevant information. See
Com
proof
fact
Citizens
FCC, supra,
other
to Save
inferences
be drawn from
facts. mittee
WEFM
this,
example,
For
non-inferential
non-cireum- F.2d
265-266. In a case
or
at
$5,000
saving
per
appel-
at
week
affidavits and
submitted
rate of
out
documents
funds,
lants,
budgeted
operated KQEC-
distinguished
it could have
is to be
from the situation in
"extraordinary"
expendi-
additional
TV with
Washington
& Children v.
Ass’n
Television
$1,000 per
ture of
week for five months and still
(D.C.Cir.1981).
F.2d
1269-1270
budget.
Response
gone
not have
over
There,
parties requesting
alleged
Opposition
to Petition for Reconsidera-
neglected
sup-
misrepresentational
intent but
6, 1980,
tion, July
reproduced in JA at
statutorily adequate
port
with a
case, therefore,
showing.
no
In that
facts were
situation,
which the
intent
licen-
placed
properly
issue.
placed squarely
been
in issue
see has
*10
knowledge
have
party
emphasis
income-pro-
must be assumed to
ized and that this
(un-
made
it has
conflicting
ducing
pro-
statements
activities has interfered with
otherwise),
thus knowl-
less it shows
local programming
duction of
and other
And,
court
falsity.
is,
this
has
edge
as
programming for which
as a
found,
misrepresentation
station,
fact of
public
responsible.
television
The
“[T]he
making it
proof
party
that the
coupled
response
allegation
Commission’s
to this
knowledge
falsity
would be
had
appears
simply
to have been
even if
enough
justify
that there
a conclusion
allegations
they
such
are true
would
fraudulent
intent.”
Broad-
material
constitute
and substantial factual
Leflore
FCC,
casting Co. v.
636 F.2d
disputes. Specifically, FCC
un-
notes that
(D.C.Cir.1980).
(as opposed
less bad-faith
incom-
merely
petent)
inadequate
judgment
business
or
intimates
Commission also
programming
alleged,
is
commercialization
appellants
by
the evidence offered
facie,
implicate, prima
public
does not
support
allegations
of their
is somehow
KQED II,
interest. See
88 FCC2d at 1163-
Although appellants may have
deficient.
1164, JA 10-11.
support by
exaggerated
depth
of their
referring
charges
“exhaustively
to the
as
As noted previously, it is the Com
documented,”
the charge
we think that
instance,
province, in
mission’s
the first
they
they
articulate and the documentation
make a determination of
particu
whether a
proffer
entirely adequate
under the
lar factual
is material or sub
vig
Thus
raised a
statute.
have
stantial.
See Nat’l
Better
Ass’n for
dispute regarding
factual
the issue
orous
Broadcasting
supra,
v.
F.2d
misrepresentation. FCC concedes that
or not
agrees
Whether
this court
dispute
is
material.
substantial and
one,
particular
determination is the best
abundantly
appears
sup
conclusion
if that determination is not
unreasonable
by previous
ported
FCC decisions and
duty
Here,
is
to affirm
our
it.
the determi
See,
existing case law.
e.g.,
Com
Citizens
nation that commercialization
se or
per
FCC, supra
mittee
Save WEFM v.
even commercialization that to
extent
some
(mandating
adequate
hearing
allega
where
upon
infringes
public
pro
local
interest
made).
misrepresentation
tions
gramming
public
is not
violation of the
conclusion,
denying
In
FCC’s decision
interest
reasonable.
is
This determination
hearing on this issue
reasoned
was not
generous
normally
affirms the
discretion
arbitrary
capricious.
The Com- given by
FCC to local
stations to
ignored statutorily adequate
here
mission
they
programming
conduct their
as
affairs
going
to a substantial and mate-
fit,
long
they
see
as
cer
do not violate
rial factual
and in effect obviated
See,
tain minimum standards of conduct.
hearing by finding
need for a
itself that
e.g.,
Broadcasting
Columbus
Coalition
one factual version was the true and cor- FCC,
(“The
supra,
We do not think the Broadcasting Public IV. FCC Motion to Strike Act mandates this result. Previous deci KQED’s Intervenor Brief sions of this court have denied that FCC The final issue in the case concerns the any responsibility has assuming disposition of the claims by raised responsibilities enforcement interve- of CPB or for KQED. KQED, nor on supervising it in March its enforcement actions. 18, 1983, November Media,
See Accuracy in filed notices of Inc. v. inter- su § pra; pursuant vention CPB, see also to 47 Project 402(e)7 Network U.S.C. in (D.C.Cir.1977), F.2d 963 denied, these cert. consolidated cases on ground that U.S. 98 S.Ct. it was an party L.Ed.2d 770 interested because it would (1978). Although neither “aggrieved of these by cases be reversal or modification dealt specifically with the situation at issue of the FCC’s order.” Notice of Intention to here, emphasize both supervision that Intervene, over March 1982.8 Thus it filed Corporation by Congress intended its appellee brief after the Commission as to remain an exclusively congressional re would an support intervenor in of the Com- sponsibility. hold, therefore, We that the brief, however, mission. In its instead of duty Commission has no to enforce the presenting arguments in uphold- favor of funding 396(k)(4) conditions of Section & ing the Commission’s decision regarding (5). renewal, the license argued that FCC had failed to comply with statutory its mandate Having upheld the FCC contention by considering appellants’ petitions in a that it required by was not statute to con substantive manner at all. According to sider these factors in licensing proceed KQED, a more summary dismissal of ings, these question we turn to the whether the “patently petitions deficient” required. Commission acted unreasonably in deciding Thus, although KQED requested that such that issues would not raise material court affirm and substantial the license questions. granted renewals We here, think requested that the Commission also did not act that the court un re- reasonably quire in determining compliance Commission to proce- institute a open with the meetings dure requirement screening petitions of the out which are Act was not material public facially to its as “captious interest purely obstruc- determination: It was within the Commis tive” they complaints contend the filed sion’s discretion to decide compliance by appellants in this case are. provision 7. This states: adversely whose interest would be affected thirty days Within filing any after the reversal or modification of the order of the appeal any person may interested complained inter- Commission of shall be con- participate vene and proceedings in the had party. sidered an interested upon appeal by filing said with the court a notice of intention to language KQED's intervene and a verified in its November showing statement the nature of the interest Notice of slightly Intention to Intervene was party, together proof of such of service ambiguous. more There it noted that it would copies statement, of true notice and said “aggrieved by reversal or certain modifi- upon appellant upon both the Commis- cations of the Commission’s order.” Any person aggrieved sion. who would be or MacKINNON, (con- Judge Circuit Commission, though responding Senior part dissenting part). in curring brief, & filed a in its main these KQED’s brief motion strike my opinion majority’s standard is first, opportunity it had no grounds Federal lax as to when the Communica- so KQED filed since its brief respond require Commission must after tions (to intervenor § schedule an the FCC 309 of the Communications Act under second, FCC), and, be- support of the it amounts no standard at all. The were raised cause claims may offers Save what Committee any case. implausible interpre- merit charitably without be called an undisputed Fancying facts. them- tation question reach need not We interest, guardians of the selves we claims because of the merits nothing have done more point. prevails on its first find that FCC suspicions vent their than behind by KQED were here The claims made replace faulty equip- decision to position to its tenuously related noticed lurked a to circumvent the ment desire intervening support it was suspi- But instructions. Commission’s *13 specu Although we do not decision. FCC any question not raise of material cion does be,9 we notice must specific late on how fact. given the Commis that the notice to hold when we examine This becomes obvious inadequate. The sole in this was sion case “dispute” the is that the just what KQED totally here argued was claim the a majority argues compels FCC to hold position in the the FCC taken opposition to KQED hearing. one of its tele took notice at issue. Thus order air for limited stations off the a vision these inadequate to allow intervention was FCC, so, It did the station told the period. The fairly introduced. arguments to be a Ac replace faulty master switcher. motion strike Commission’s Kroll, cording to members of the Mr. granted.10 here is therefore brief remarks, or KQED board made various remarks, way in a to make
failed
mean
might
interpreted to
be
V.
Conclusion
entirely
budgetary
was
deactivation
KQED I,
The Commission’s decisions
(J.A. 269.)
appellants, hear
The
reasons.
KQED II,
in all
III
affirmed
and
this,
alleged
the FCC that
ing
before
deny a
that its decision to
respects except
really
was not
“darkening” of the station
KQED misrepre-
hearing on the claim
equipment,
in fact for “bud
replace
but
surrounding the Decem-
the events
sented
might
reasons.” It
strike a busi
getary
KQED-TV is re-
darkening of
ber
about
and
nessman that decisions
when
pro-
are remanded for
These cases
versed.
altogeth
replace
are not
equipment
how to
ceedings
opinion.
with this
consistent
budgets,
er unrelated
but
Committee
alleging
in fact
to Save
was
ordered.
So
oppose
merely
appealed
it
the Commis-
requires
state-
if wanted
a "verified
The statute
[intervening
showing
any respect.
This
has not
the nature
order in
circuit
ment
party's]
sion’s
402(e). We think
§
47 U.S.C.
procedural
interest.”
al-
required such
niceties and has
supports
general
statement that
intervenor
appeal
also
where an
was
lowed intervention
normally
agency
opposes
order
FCC,
an
will
or
adequate.
Corp.
possible.
Media
v.
See New South
Where,
here, however,
as
an interve-
(D.C.Cir.1981)
curiam).
(per
F.2d 37
supports
its
of an order but briefs
nor
most
statutory language
generally
re-
is due
to the
generality
disagreement,
insuffi-
point of
intervention,
requires merely
garding
which
cient.
aggrieved
would be
or ad-
that the intervenor
versely
or modification.
affected
reversal
reasoning
here from
10. We differ in our
however,
sympathetic,
with the Seventh
We are
Tele-
case of Illinois Bell
recent Seventh Circuit
regarding notice
Circuit’s substantive concern
Cir.1984),
(7th
phone Co.
jority For stated therefore I the reasons above guess stringen- the real just a about tion is majority’s dissent from the respectfully public operates under which television cies analysis holding concerning misrep- judgment. compared to the informed claim. the remainder of the resentation the oppor- welcomed may It opinion, I concur. the broken master switcher af- tunity that money by closing station save forded the however, is, It laws of
temporarily. land,
economics, not the law of public television stations
decrees If the always money. master
should lose breaking actually saved
switcher’s pecu- is more an artifact
money, this sector it is of the than liar economics UNITED STATES of America misrepresentation. No one has evidence wrong alleged that darkening advantage save take Albert W. COACHMAN. *15 alleged that money. No one has go budget over legal obligation under Appeal of Wendell HILL Indeed, argu- at oral stay on the air. (Material Witness).
ment, it clear the Commission made America UNITED STATES of equipment viewed the fail-
assumed (Transcript luck piece good as a ure 23). Argument suggested has No one Oral Albert W. COACHMAN. obligations as a violated licensee doing. there is no in so Because Gary Appeal of BALLARD break, in fact the master did switcher Witness). (Material operat- and that replaced, that it had 81-2161, 81-2162. Nos. quarters out of rented would have been is extraordinarily expensive, there mate- no Appeals, United States Court of All question of fact left to be settled. rial of Columbia Circuit. District alleged fact has in Committee Argued June glad have a broken master replace. argu- If there is an switcher Decided Jan. acts, accompa- legal that otherwise ment intent, illegal under the nied bad Act, present or otherwise
Communications should look into at
an issue the Commission