City of Angels Broadcasting, Inc. v. Federal Communications Commission, Fidelity Television, Inc., Rko General, Inc., Intervenors

STARR, TAMM, Before WILKEY and Judges. Circuit STARR, Judge. Circuit appeals City Angels Broadcasting, Commis- from Federal Communications denying order motion to intervene sion recipient to determine the a Los television station license. jurisdiction pursuant have to 47 U.S.C. follow, 402(b). For the reasons which country it was within the Commission’s another RKO hold license was under deny appellant’s admittedly siege. In that proceeding, discretion competing appli- untimely request ongo- in to intervene an challenging cants were RKO’s license re- ing comparative proceeding. newal for Channel in WNAC-TV Boston. General, (WNAC-TV), See RKO Inc.

I (1969). F.C.C.2d 846 In the pro- Boston appeal chapter is the latest in a This ceeding, designated issues were for hear- continuing drama at this court and the ing respect anticompetitive prac- with (FCC Federal Communications Commission allegedly engaged tices in RKO and its Commission) involving the or efforts of Tire, parent company, whereby General General, (RKO) Inc. to retain its tele- RKO purchases General Tire would condition its against and radio licenses various vision products or agree- materials against charges wrongdoing levelled it suppliers ment purchase would parent, and its the General Tire & Rubber advertising time on RKO stations. See (General Tire). only ques- Company General, (WNAC-TV), RKO Inc. 78 F.C. presently tion before us is whether 38-47 reciprocal C.2d Known as arbitrarily denying appellant acted in dealings, practices trade those had been City Angels Broadcasting, (City Inc. Angeles proceeding, raised the Los al- Angels) ongoing in an leave to intervene though broadly they not as as were subse- comparative license renewal quently presented in proceed- the Boston respect to a Los television with ing.1 Accordingly, the Commission’s currently analy- held An RKO. Broadcast Bureau asked the Commission to straightforward question, sis of this how- reopen hearing Los for consid- ever, requires understanding being eration of new developed evidence history leading up present to the tracted issue, reciprocity Boston on the as well as appeal. for consideration of an additional fit- RKO concerning ness issue the candor of certain story begins ago. two decades

Our original witnesses who testified hear- petitioned RKO the FCC to renew respect alleged reciprocal with to the license for Channel Station KHJ-TV practices. trade Angeles. timely application A for a permit for a construction new television designed In an order to streamline con- subsequently station on Channel 9 was challenge sideration of RKO’s to the Hear- Television, by Fidelity (Fidelity). filed Inc. decision, ing Examiner’s the Commission early juncture, City Angels At that reopen Angeles pro- declined to the Los found. nowhere Confronted ceeding. Inc. competing applications, these two the Com- (1971). Instead, F.C.C.2d the Commis- comparative hearing a mission scheduled party sion made to the Boston application Fi- resolve RKO’s renewal proceeding, in which evidence as to RKO’s delity’s mutually-exclusive application for a be adduced. Id. at 74. Such fitness towas permit. adducing After evi- construction procedure, Commission, according dence, Hearing Examiner issued an order adequately protect would Fidelity’s right to Fidelity’s construction granting in 1969 bearing upon adduce new evidence RKO’s permit application denying ap- fitness the event the Commission re- plication for renewal. Hearing versed the Examiner’s (KHJ-TV), (Initial Decision F.C.C.2d compara- favor and found RKO 1969). If, hand, Id. tively superior. on the other Hearing this adverse affirmed the Ex- appealing While RKO was Commission, decision, any decision to the full across the aminer’s evidence adduced General, Inc., Angeles Hearing Angeles. 1. The Los Examiner received TV in Los See RKO only (Initial 1969). reciprocity evidence on the issue insofar as F.C.C.2d Decision stewardship it bore relevance to RKO’s of KHJ- lenged immediately order was necessarily reviewable against RKO in Boston Angeles pro- finally approved immaterial to the Los inasmuch become RKO’s re- ceeding. subject possible newal defea- only upon sance termination of the Boston court, see prodding some After id. 448-53. When the challenged subsequently order was re- (D.C.Cir.1974) (detailing actions merits, viewed the held that on court in during response by taken this court FCC not commit error” the “did reversible petition Fidelity’s for writ mandamus license Fi- renewing denying in RKO’s and unreasonably delayed compel allegedly delity’s per- application for a action), construction the in late 1973 issued agency FCC Television, Inc. v. Angeles mit. appeal. in Los a decision RKO’s (KHJ-TV), (D.C.Cir.), RKO Inc. F.C.C.2d (1973). .Reversing Hearing the Exam- 46 L.Ed.2d Fidelity, (1975). noted, however, the iner’s conclusion favor its that that RKO should have (as held Commission the affirmance was “conditional its on the granted decision) renewal of license been on out- Commission’s the ultimate compiled the Los basis of record Id. at proceedings.” come of the [Boston] Angeles proceeding. In a 3-2 decision that n. excoriating criticism from the prompted court’s Shortly after the affirmance see id. at 140-42 Commissioners, dissenting decision, fit- the FCC’s Los new id. (Commissioner Johnson, dissenting); respect emerged ness issues with RKO Lee, (Commissioner dissenting), the proceeding. in the Boston The Securities majority RKO and FCC found (SEC) Exchange and chal- similarly qualified and stated that “cred- be lenged as violative federal securities given comparative it must in a renewal laws undisclosed and over- certain domestic proceeding, applicants when the are other- engaged parent seas conduct equal, public for the value to wise company, proceed- Tire. The SEC General existing the continuation of the service.” filing ing de- resulted of a consent however, Recognizing, that fur- May requiring cree on General might ther character evidence be adduced undergo operational Tire to review against during proceed- RKO the Boston non-management would five directors that ing, open possibili- the Commission left Special culminate in the issuance of a Re- ultimately ty might be entitled port. report, July released This Specifically, to the Los license. proceed- relevance to bore obvious the FCC that “the applica- the Commission ordered report ings as the wide- inasmuch admitted DEEMED BE tion of RKO ... TO ranging Special corporate misconduct. The GRANTED, application Fi- and that the Report recordkeep- concluded that deficient DENIED, BE delity ... IS DEEMED TO ing accounting practices caused had may be subject to whatever action deemed in RKO disclosures inaccuracies financial following resolution appropriate filed with the FCC. before Id. proceeding].” matters Boston [the upon the con- FCC act information could Special Report, tained Tire’s in General Fidelity subsequently appealed When competing applicants RKO the two order, the moved to from this proposed television the Boston license ground appeal on the dismiss assign whereby RKO settlement interlocutory, merely inasmuch order was entity to be to a created Fidelity’s had not final- application been merger applicants. other of the two meaning applica- ly within the denied settlement, This was ex- proposed judicial provision, 47 U.S.C. ble review find- contingent upon FCC pressly made disagreed. Fideli- 402(b)(1). This court ing qualified be a broad- RKO was ty 502 F.2d 443 licensee, obviously had rami- (D.C.Cir.1974). chal- cast dramatic held that merits, fications for the future of the Boston case On Commission found It that RKO was unfit to as a contested was thus licensee of the Fidelity, as well as for another Boston television station. crucial for RKO (WNAC-TV), competitor, Multi-State Communica- RKO F.C.C.2d (an tions, applicant finding television The Commission was based (1) independent grounds: York which three license held RKO’s re- practices; (2) party ciprocal had also been made a to the Boston trade RKO’s inaccu- proceeding), participatory rights reports; to have its rate financial RKO’s lack proceeding broadly during in the Boston con- of candor proceeding.2 Boston hand, decision, companion On the other it was to the In a strued. the FCC held that formerly compet- disqualified benefit of RKO and the these three factors also rights applicants Angeles. Boston for such to be as a licensee of 9 in Channel narrowly interpreted. parties thereupon These latter The Commission ordered further accordingly argued original pleadings on whether the of Fi- allowing Fidelity participate delity, competitor order in the as RKO’s sole in the proceeding licensing proceeding, Boston was limited to the issue could grant- thus be General, anticompetitive reciprocal practices (KHJ-TV), en- ed. Inc. RKO 78 F.C. (1980). gaged by General, Tire. Re- RKO and General C.2d 355 also RKO (WOR-TV), jecting argument, (dis- the FCC ordered Inc. 78 F.C.C.2d 357 (and qualifying Multi-State Communica- on basis of the above tions, factors, Inc.) participate be allowed to on all three as licensee of the New York bearing upon station). issues RKO’s fitness to be a television licensee. The sub- Commission challenged qualification RKO these or- explained sequently that: separate appeals ders in that were then Both and Multi-State have a General, by consolidated this court. RKO clear, substantial interest the outcome FCC, (D.C.Cir.1981), Inc. v. 670 F.2d 215 proceeding____ the Boston [T]he denied, 927, 1974, U.S. S.Ct. reasoning same which led Commis- 1119, 72 L.Ed.2d 442 and 457 U.S. 102 S.Ct. sion to allow and Multi-State to 2931, (1982). rejected 73 L.Ed.2d 1331 reciprocity participate as to and re- [the disqualifying prof- two of the three factors applies to the matters under issues lated] FCC, holding fered that neither the in- consideration as a result of the SEC conduct, 222-25, reciprocal id. at nor the vestigation, since these matters also bear 225-26, misrepresentations, financial id. at qualifications. upon RKO’s basic More- support could on the record before us over, quite it is clear that a Commission hand, disqualification. RKO’s On other qualified in all determination that RKO uphold the court did the Commission’s re- respects licensee —a to be a Commission (i.e., liance RKO’s lack of candor non- requested determination [Boston] facts) during disclosure of material impact significant have a parties proceeding disqualify- Boston as a —would basis Angeles the Los York holding RKO from the license for Bos- Hence, ceedings. requires fairness ton’s at 228-36. Channel Id. While opportu- Fidelity and Multi-State have an noting may that “it well be that such a in the Boston nity participate case finding [i.e., lack of is inconsistent candor] qualifica- the extent it concerns RKO’s holding any- with a licensee tions. where,” 237, id. at we stressed that RKO’s (WNAC-TV), General, proceeding lack of in the 78 F.C. candor Boston RKO (1980). automatically justify could not revocation C.2d Although also based its find- RKO Inc. v. (D.C.Cir.1981), ing upon en- certain nonbroadcast misconduct cert. U.S. gaged parent company, didwe not 102 S.Ct. 72 L.Ed.2d 442 relying upon opinion construe FCC’s disqualifying independent factor. element as an parties of the other City York licens- None before the Angeles or New of its Los Instead, accepts Id. at 236-37. we directed RKO’s creative characteriza- es. Quite proceedings proceedings. be undertaken tion of the FCC’s further two licenses so as to respect contrary, to those both the Commission and Fi- opportunity to demonstrate delity argue vigorously Ange- allow RKO that the Los evidence of meritorious (e.g., presenting les will not be over until all why performance in Los programming) its against fitness issues raised RKO City York merited differ- Angeles and New In- Boston have been resolved. Accordingly, ent treatment. effect of RKO’s lack of asmuch as the affirmed, Boston decision was while proceeding upon in the Boston candor Angeles City York cases Los and New yet license is to be deter- Los proceedings.3 were remanded for further mined, parties these maintain that the Los Angeles proceeding is still alive and well. unfolding, While these events were company Angels and another had support respective arguments, of their separate petitions meantime filed with the contending are find com- sides able to seeking to intervene in FCC June 1980 language judi- fort in the of the manifold Angeles proceeding after the the Los Com- opinions that cial and administrative attempted disqualify mission RKO as Com- licensing saga spawned. In its June 1983 licensee. pare Fidelity subject appeal, the order that is the of this (D.C.Cir.1975) (broadly 703 n. 45 denied these intervention re- conditioning “on the ultimate affirmance quests. proceedings”), outcome of the [Boston] (P F) Rad.Reg.2d now & 53 We cert, denied, 96 S.Ct. affirm. General, (1975) Inc. RKO L.Ed.2d 253 (KHJ-TV), F.C.C.2d II (grant of channel 9 license to RKO made “subject may to whatever action be deemed A following appropriate resolution of the Angels' appeal from the FCC’s proceeding) matters” in the Boston petition predi- intervene is denial FCC, v. 502 F.2d upon assumption cated the that the Los (D.C.Cir.1974) (“[I]n the event the Angeles proceeding ongoing remains a live court affirms the Commission and no deci- assump- challenges RKO anticompetitive activity sive evidence of however, tion, arguing ingeniously that the part developed of RKO is in the Boston proceeding in fact came to an end in 1981 proceeding, preserves Ange- RKO its [Los when this court held that RKO could not be license”) RKO les] upon a broadcast license re- denied based (1971) (limit- 31 F.C.C.2d engaged during in ciprocal practices trade “participation Fidelity’s Boston to mat- theory early 1960s. In RKO’s of the pertaining qualifi- ters to RKO’s character case, in the sole condition contained cations to be a Commission licensee either grant of its license renewal Commission’s by anticompetitive reason of antitrust or Fidelity’s challenge in the face of was by alleged con- activities or reason of issue; reciprocity once this based duct which forms the basis for the [candor] favorably to issue was resolved Board”). issues added the Review argument goes, automati- cally Fidelity’s lingering imprecision terminated. sole which with the benefit of was, hindsight in hope to defease RKO’s license we can discern the various view, thereby extinguished. opinions entirely understandable. At RKO’s is relocating subsequently avoid its station to able to these license in return for Communications, yet proceedings retain its Jersey. further in New York See Multi-State advantage newly-enacted by taking (D.C.Cir.1984). Inc. v. 728 F.2d 1519 legislation granted five-year it an automatic Tallman, course, one, 1, 4, peer could into that time no (1965) (“The the Boston Secretary’s the future and foresee interpretation may not only per be the significantly expand one proceeding would be- language orders, mitted but it reciprocity and yond the related issues. quite clearly is interpretation; reasonable FCC, supra, respect it.”) (cita courts must therefore (“The FCC could not have F.2d at omitted); Corp. Tele-Media tions known, Ange- it when conditioned [the (D.C.Cir.1983). are, did, it proceeding] les the Boston us, under quite the circumstances before outcome would turn on lack of candor unable to hold that the Commission was designated that had not even been issue interpreting unreasonable in its 1973 order proceeding.”). the Boston It would there- fashion did.4 disingenuous now to attribute to fore quotations opinions agency’s from these Our deference to reading isolated its own meaning they were never intended to orders buttressed this instance bear. specific action taken view, approach In our the better 1981 when it remanded the Los opinions acknowledge that these did not case to the Commission for further Fidelity’s participato address the extent of FCC, supra, See RKO v. ceedings. ry rights beyond reciprocity-related is Despite holding F.2d at 236-37. our and then to ask whether sues FCC reciprocal conduct support would not conditioning order the renewal of RKO’s disqualification RKO’s as a broadcast licen- (as 9 license well as the denial of Channel see, 222-25, see id. this court remanded Fidelity’s permit) upon construction the Los case to the FCC “for fur- outcome of Boston was suf ther consideration appropri- as it deems ficiently Fidelity’s broad to accommodate Furthermore, ate.” although subsequently participation arising as to is the orders which the rejected FCC had bearing upon sues RKO’s fitness as a attempt to Fidelity’s participa- limit has, licensee. reciprocity-related tion to issues were course, consistently question answered this review, among those under the court made review, turn, in the affirmative. Our any disagreement no mention of whatever the Commission’s construction of its own respect. with the FCC’s decision On may prior order is narrow: we not overturn contrary, suggested the court compelling it unless there are indications lack of candor in pro- RKO’s the Boston See Brotherhood Rail wrong. that it is ceeding might well be a sufficient basis for Clerks, way and Airline Consolidated stripping id. its Los See license. Adjustment System Board v. Bur reject at 237. We argu- therefore RKO’s Inc., lington Northern 1088 ment that the terms of the Commission’s Red Lion Broadcasting (8th Cir.1982); 1973 order dictate the conclusion that cf. 367, 381, v. Co. RKO/Fidelity comparative S.Ct. proceeding is an 1794, 1801, (1969); Udall v. irrevocably chapter.5 closed challenges It should be noted that the relevant order in to the license-holder of channel nine 4. only this determination is the FCC order conditional- jproceedings.” in new at 669. From Infra ly granting application while conditional- By- the manifold events which unfolded in the ly denying Fidelity’s application. This court's history proceeding, zantine of this the dissent pur- subsequent affirmance of the order did not perceives RKO-Fidelity the death knell for it; instead, modify port any way simply struggle Fidelity in this court’s decision in 1974. adopted Fidelity order. See the FCC Inc. v. Federal Communications supra, F.2d at n. 45. Comm'n, (D.C.Cir.1974) 502 F.2d curiam). (per position 5. The fulcrum of the dissent’s is that fully agreeable could not more hearing comparative between RKO and Fi- salutary principle prior that a decision of this delity by "was the action of closed off fully binding disagreement court is on us. Our which this court the FCC” in a conditional order view, dissenting colleague from with our is in no wise occa- affirmed in In the dissent’s rule; juncture by entertain sioned disaffection with "the Commission could that bedrock whether the FCC committed re- issue as III error when it refused to versible waive A rule. administrative “cut-off” That rule ongo- request join this City Angels’ quite sensibly prescribes a date after nominally styled although permit applicants ing proceeding, construction which are intervene, mutually seeks in essence to previously-filed exclusive with li- petition to applications generally consider the merits of its renewal will cense have the § permit accepted. for a a construction not be C.F.R. 73.- for application (current version).6 3516(e) operate on Resolution station television requires Angeles. Accordingly, understanding this issue of the in Los Channel rule, correctly purposes by served identified the the cut-off as well parties have depart polestar public contrary, we embrace it and from based interest. to the the dissent applying only respect say, suggest fully more modest as we Suffice text, more principle that venerable facts appropriate province judicial that the view, this court's 1974 deci- before us. In our agency review is not to overturn action which is purport did sion in Television not even permitted by and consistent with its own rules rights to decide once and for all the of RKO simply by policy virtue of concerns within the Angeles compar- respect to the Los judiciary perceived over Pharisaic attitudes af- proceeding. The court went to some ative flicting agency in the enforcement of its lengths to that the Commission’s demonstrate own rules. reviewable, by vir- 1973 order was December tue of, alia, upon Fidelity during inter its effects current 6. The version of the cut-off rule pendency proceeding. the Boston vides: found, was, affected and would the court Specification § 73.3516 of facilities. affected the December (cid:127)continue to be on-going since the order would not Boston (e) application permit likely An for a construction "terminate in the near future.” thought This was no means for a new broadcast station or for modifica- however, RKO-Fidelity epic, permit the end of the to be tion of construction or license of a frankly recognized that fact: and this previously authorized broadcast station will effect of the 6 December order will be "[T]he felt in a concrete “Quite accepted filing mutually not be if for it is way quite some time.” Id. application exclusive with an for renewal of cry time” is a far the eternal some from existing license of an broadcast station unless Angeles comparative proceed- demise of the Los ing filing by it is tendered for the end of the first Indeed, perceived by the now dissent. our day of the last full calendar month of the language went brethren in 1974 that we expiring license term. convincingly find clear: (1) application If the license renewal is not may very The 6 December order not be the 73.3539, timely prescribed filed as last order issued the Commission in the filing applications mutually deadline for ex- Angeles proceeding ultimately if RKO los- day therewith clusive is the 90th after the FCC es its license from KHJ-TV as a result of the gives public accepted notice that it has Boston filing. late-filed renewal accurate, proved prophetically Id. This as we any If deadline falls on a nonbusiness already have simply seen. The December 1973order day, the cutoff shall be the close of business relegate Fidelity-RKO strug- did not day of the first full business thereafter. gle the historical annals of the television (3) The dates when the licenses of all us, rather, industry. broadcasting To the con- auxiliary broadcast and broadcast services inescapable Angeles pro- clusion is "the Los 73.733, regularly expire are in §§ listed 73.- 1974, ceeding,” which this court addressed in 1020 and 74.15. alive, pending the was still conclusion of the 73.3516(e). City C.F.R. § 47 It is conceded that Boston Angels’application permit for a construction simply conclusion here thus rea- Our cannot Commission, untimely. The in a statement sonably doing read as violence the handi- "[ujnder party disputes, that no asserts that ago brethren a decade and resur- work of our rules in effect at the time RKO and filed recting Angeles proceeding Phoenix-like applications, competing applications their other purportedly by from ashes created this court's 7, 1966, day could have been filed until June decision. 1974 designated before the Commission the RKO and perceives the dissent doubtless the weak- And Fidelity application hearing.” Ap- for Brief for reading revisionist of our 1974 deci- ness Thus, pellee City Angels, at 20 n. 20. by moving higher ground promptly sion pleading underlying filed its first policy logic with the Commission on the Commission's 13, 1980, there, June the dissent launches a missed the deadline more cut-off rule. From barrage against years. cut-off of the rule than fourteen

663 understanding as an of this court’s role in ed waiving the cut-off rule so as to reviewing agency’s refusal to waive one allow Angels to file its construction regulations. of its own permit application years fourteen late. scope of our review of this determina- prompted by FCC’s cut-off rule was tion is narrow and contained. general- the watershed decision in Ashbacker Radio § ly 706(2)(A). 5 U.S.C. As we recently FCC, 327, 148, Corp. v. 326 U.S. 66 S.Ct. 90 note, had occasion to applicant for a (1945), “[a]n L.Ed. 108 requiring the Commission only waiver not bears the burden of con- comparative hearing to conduct a whenever vincing the agency that depart mutually should applications exclusive broadcast bepn rules, from the judicial but appeal, have filed. See also 47 U.S.C. applicant 309(e) must (statutory show that the agency’s codification of the rea- Ash- sonings requirement). declining “full hearing” backer In- the waiver were ‘so tended to fill a void insubstantial identified the Su- as to render that denial an ” Ashbacker, preme Court in see 326 abuse of discretion.’ Thomas Radio Co. 9, 9, n. FCC, 333 66 S.Ct. at 151 n. 921, the rule has v. 716 (D.C.Cir.1983); F.2d consistently approved by been this court as see also Corp. FCC, ICBC 926, 716 F.2d valid means which may carry the FCC (D.C.Cir.1983) FCC, WAIT Radio v. affording out its mandate comparative 1203, (D.C.Cir.) (“ 459 F.2d appli- ‘An hearing to mutually exclusive ap- broadcast cant for waiver high faces a hurdle even at See, plicants. e.g., Open Committee starting gate.’ On appeal ... to this FCC, 861, (D.C.Cir. Media v. court, heavier.”), burden ... is even 1976); Athens, FCC, (WATH)v. Radio (D.C.Cir.1968); 401 F.2d 400-01 Cen- (1972) (citation L.Ed.2d 321 omitted). We tury Broadcasting Corp. v. 310 F.2d quite are say unable to the Commis- (D.C.Cir.1962); Ranger v. discretion, sion abused its or otherwise act- (D.C.Cir.1961). arbitrarily, ed when it refused to waive its

The cut-off rule cut-off rule. basically pur- serves two First, poses. it advances the interest of In refusing City Angels’ waiver finality: administrative “There must be (as request well request as the of another point some in time when the Commission untimely applicant), the Commission cor parties can close the door new to a rectly noted that the cut-off rule is “de or, competitive hearing hypotheti- at least signed permit to close the door to [it] cally, no granted.” licenses could ever be parties so that a choice can be made Athens, supra, Radio 401 F.2d at 401. timely between applicants, filed thereby Second, timely it aids applicants giving timely applicants filed protection by granting status,” “protected them a see against opportunistic late-comers.” Ranger, supra, 294 F.2d at that allows (P Rad.Reg.2d prepare them to for what often will F) 53, (1983) (footnotes & omitted). 58-59 expensive time-consuming contest, ful- The FCC concluded that there ly aware were “no competitors they will be compelling unusual and facing. See, e.g., circumstances war Bronco Broadcasting ranting Co., waiver of (1974); this rule.” F.C.C.2d How- ard University, 23 F.C.C.2d This conclusion was well within the Com- (1970).7 mission’s proceed- broad discretion. This case, present In the the FCC determined agency now been before the purposes that these dual would be thwart- the courts for twenty years. almost It obviously suggest is, application late). do not mean to that the filed ever, three months It how- gives timely applicants cut-off rule right against challenge a vested manifestly within the discre- Commission’s untimely competi- from acceptance tion to consider the effects that anof See, e.g., tors. Denton Channel Two Founda- filing upon timely appli- overdue would have tion, Inc., (1981) (waiver grant- 85 F.C.C.2d 983 cants. applicant ed noncommercial educational who governing case law obligated under sion suggest that the Commis- reason to defies begin anew. scrap concluding its discretion abused sion compet- date new permit at this late that to specif- examining City Angels’ Before license would Channel 9 itors for the contentions, stage for this we set the ic goal bringing about the vital thwart observing that the inquiry by branch of our long resolution of fair and final in fash- enjoys wide discretion Furthermore, the controversy.8 drawn-out 4(j) of ioning procedures. Section its own “opportunistic reference Commission’s Act of 47 U.S.C. the Communications agency indicates that late-comers” 154(j), provides in broad fashion that granting waivers that “may proceedings concerned in such conduct FCC Fidelity, status of protected proper contravene conduce to the manner as will best expend- twenty years has for almost and to the ends of dispatch which of business Schreiber, nec- time and resources justice.” the substantial v. ed (1965), unfortunately protract- essary wage this provi- reject City Supreme stated that this these reasons we Court ed battle. For “Congress has left indicates that sion Angels’ that contention judgment the largely to refusing grant a [the Commission’s] its discretion abused conducting of the manner of determination application.9 intervention belated fairly would most its business which proper dis- reasonably accommodate B jus- and the ends of patch of its business two additional Angels (internal mounts 85 S.Ct. at 1467 tice.” Id. that, logical their con- arguments omitted). carried to further not- quotation Court clusion, challenge to the denial go beyond delegation au- congressional that this ed First, petition. argues “pow- it thority encompassed of an intervention to the FCC questions so stale that the record in this case is er to resolve subordinate Second, reopened. scope inquiry, proceeding must be such as the cedure applications in New be heard con- argues that this court’s decision whether should FCC, successively, whether Corp. temporaneously 685 F.2d 708 or Media v. South (D.C.Cir.1982), applicants parties should allowed to intervene requires that new proceedings, and similar compete for Channel 9 one another’s be allowed to (internal quotation and questions.” ar- Acceptance of either of these license. manner, omitted). In like holding punctuation guments would result our consistently recognized that the FCC comparative proceeding have RKO/Fidelity entirely vested with broad discretion structur- in favor of an must be terminated See, ing proceedings. e.g., who its own MCI any applicant FCC, is, Corp. v. compete. This of Telecommunications desired could so (D.C.Cir.1983); course, Un- championed by F.2d Western the same result FCC, Telegraph II. Unlike ion Co. supra Part RKO. See (D.C.Cir.1981); 1121 n. 13 Nader v. at this destina- & have us arrive which would (D.C.Cir.1975). F.2d 195-97 For erro- by holding that the Commission tion reasons, orders, firmly per- following we are prior neously its own construed arguments advanced that the Commis- suaded City Angels contends here, delay as the in these 9. There is no "artificial” limitation previously 8. We have noted it, by allowing pool proceedings have on the RKO’s benefit dissent would works to infra competing de- during peri- candidates. The limitation interim it to retain its licenses rives, rather, of Commis- Corp. v. from Media od. See New South more, long standing, nothing 708, 712, (D.C.Cir.1982); gener- noth- sion rules of see employed hearing 307(d) ("Pending any We can divine no artifice less. ally 47 U.S.C. § appli- the Commission to limit the contenders renewal] and final decision on [a only beyond ..., applicants were cavil the such two who shall continue cation the Commission question. timely applicants effect.”). for the license in license in City Angels overcoming of fall short of the changes stantial that may be of decisional FCC, presumption that the rather than this significance.11 We further note that an court, should determine how best to struc- extremely heavy burden looms before a comparative hearings ture in furtherance party seeking to overturn a final adminis- public of the interest. See, trative grounds order on of staleness. e.g., Transportation, Bowman Inc. v. Ar- City Angels’ argument of first Inc., Freight System, kansas-Best 419 U.S. Fidelity10 Angeles that and the Los both 281, 294-296, 438, 446-447, 95 S.Ct. by undergone area served Channel 9 have L.Ed.2d 447 The contention ad- changes inception dramatic since the of this by petitioner, vanced and embraced proceeding compiled such that the record dissent, is even more City dramatic. of by the FCC is now stale. There can be no in advance Angels hold, asks us to doubt, argues, signifi as the dissent that of administrative determination changes swept cant have over Los final respect to the 9, license for County during past Channel twenty years. that case, inevitably record will argument however, staleness be too this stale to support severely an undercut the fact award to either that RKO or Fideli- updated ty. City Angels record has shown, been accordance with of has not even requires 47 C.F.R. 1.65. That rule assuming that that showing such a could ever applications updated any made,12 be to reflect sub- that the present FCC the case City Angels points having developed, up-to-date out that shifts have record on which among Fidelity's management ultimately occurred bringing and to act in inception proceed- shareholders since promptly of this to a close. brief, ing. opening appellant appeared In its by City Angels 12. The cases cited in which assert that these shifts constituted a transfer of required ongoing this court proceed- meaning control within the 3572(b), of 47 C.F.R. § 73.- give way proceeding opened to a new thereby deprived Fidelity of its applicants uniformly additional involved some rights. Appellant cut-off delity disputed Brief for at 16-17. Fi- circumstance, generally presence parte of ex interpretation regula- of the contacts, integrity that cast doubt tion, arguing that a transfer of control within proceedings. example, Commission's For meaning regulation only “occurs Sangamon Valley our decision in Television applicant passes persons when control of an (“SVTC") States, Corp. v. United F.2d qualifications previously whose have not been (D.C.Cir.1961), remand sub nom. Fort Har- after disclosed to and reviewed the Commission." FCC, Telecasting Corp. rison (D.C.Cir.1963), 324 F.2d 379 (citations Brief for Intervenor omitted). at 25 cert, denied sub nom. SVTC v. brief, reply City Angels In its clari- States, United 376 U.S. 84 S.Ct. point fied that “[t]he is not ... that an unautho- (1964), L.Ed.2d parte concerned the same ex requiring rized transfer of control has occurred originally Supreme contacts that had led the Fidelity suddenly be thrust to the end of the Court to vacate and remand the case to this line, processing but rather be- proceedings. court for further See SVTC v. today fore this court is not the that filed States, United 358 U.S. 79 S.Ct. remand, 3 L.Ed.2d Reply for Channel 9 in 1965.” curiam), (per 47 (D.C.Cir.1959). 269 F.2d 221 Appellant Brief for at 5. We therefore do not decision, In our 1961 we decid- interpret Angels’argument to be that the prohibits ed that the same “basic fairness" that erroneously failed to invoke 47 parte required, given ex contacts all the circum- 73.3572(b). C.F.R. § stances, a fresh start in what had been a tainted Similarly, See 294 F.2d at entirely unnecessary up 11. It is thus to throw WORZ, conclude, our decision in despairingly 345 F.2d 85 our hands and as the (D.C.Cir.), does, seemingly epochal 382 U.S. changes 86 S.Ct. dissent (1965), outgrowth 15 L.Ed.2d was an cannot be taken into account Supreme Court's vacation and juncture. remand on an Commission at this The record here decision,in earlier the same for con- is not frozen. We assume that the Commission WORZ, well, parte sideration of ex contacts. weekly magazines reads news v. (1958). days popula- will not be blind in the to come to requiring applications that new growth changes demographic tion in Los considered, we Angeles. noted that case had been any "th[e] We are not aware of throughout by variety beset cumstances____" principle dubious cir- things the more effect change, they the same. more remain And simply presume fully recognize opinions will not in advance that the that some of our unwilling incapable language expressing Commission is either or in these cases contain con- beyond that had extended what would nor- compile a record suffi- unable to will be expiration mally date of the at- have been withstand a staleness ciently fresh to See id. at issue. at 715-16 license term tack. Open Me- Committee for (distinguishing argument that final is Angels’ of (D.C.Cir.1976)).13 dia v. F.2d 861 decision to continue the Commission’s the fact that concern for com- begin light than In proceeding rather RKO/Fidelity the basis for this court’s petition is inconsistent formed proceeding entirely new an Media, City An- in New South New South decision court’s with this upon misplaced. supra. We held gels’ reliance that case is Corp. v. Media been, Fidelity have and continue it was unreasonable RKO and Media New South be, type com- accept competing appli- engaged to of “license not for the FCC normally propels a petition and tele- licensee RKO radio for certain cations Committee broadcasting.” conditionally better that had been licenses vision Cf. for Media, Open supra, (quot- renewed, noncomparative hear- 543 F.2d at 873 subject Media, supra, ed New South periods 685 F.2d at deferred for ulti- ings that were Indeed, 716). City Angels argues beyond applica- at one mately extending well period. point that a continuation of the RKO/Fi- three-year license renewal ble proceeding acceptance delity comparative com- would “ef- mandating licenses, fectively from needed com- applications for these we shield peting petition____” Appellant Brief for at 13 heavily upon the well-established relied (emphasis supplied). is The defect in the FCC principle public interest best proceeding court in by comparative hearings to deter- identified served was, course, precisely Media mine broadcast license awards. See id. South There, opposite. an incumbent licensee 714-15. We held that (RKO) adequately party an ac- was the found to have been not accounted for “ha[d] competition. from prolong by improperly months and in shielded tion destined claim, by City Angels’ im- years cases even licensee RKO’s are unmoved some event, competitive challenge appears any and which dubious in that a munity from comparative evaluation.” Id. at 715. In so permit applicant (Fidelity) construction however, ample holding, receiving competition the court was careful to not from an (RKO). New South distinguish it from licensee the situation before sit- incumbent Cf. Media, supra, (“[T]he competitors 685 F.2d at 715 court uations which would-be ongoing proceeding attempted “tried to intrude” an close review of Commis- See, length proceedings. ongoing non-comparative tervene in an but li- cern with (dubious prolonged e.g., proceeding "have id. circumstances that has extended be- cense-renewal unconscionably long pe- the ultimate choice an yond the license term at issue—and neither do beyond assembling of the facts riod Media, quoted we. In New South the Com- based”). necessity which that choice must of be Open Media mittee court’s distillation of for however, significant, It is that in no case cited to "conflicting considerations” that would underlie potential that the us did this court hold staleness, record’s question: resolution of this alone, standing justified requiring our The court observed first that mora- "without a an in advance of the termination of administra- competing applications torium on while a re- proceeding begin tive that the anew. hearing progresses, a newal final resolution Given both the extent of our deference to the might severely hampered.” on renewal be structuring proceedings and FCC’s of its own hand, F.2d] 873. On other [543 Supreme teaching in Bowman that a Court’s stated, if the Commission barred com- overturning rarely justified court shall petitors during protracted the full-run re- grounds, decision on sta.eness administrative proceedings, newal a station’s audience would we have doubts as to whether there could be time, deprived "perhaps long po- ongoing justification for a court to hold that an competition normally pro- tential license FCC must be terminated because produce pels broadcasting.” a record a licensee to better Commission will be unable to amply case, support present involving decision. its eventual fresh 685 F.2d at 716. The ongoing comparative proceeding, it does court did not decide 13. The New South Media implicate does not this latter concern. Open question open in Committee left applicant may competing in- Media—whether a (renewal policy regarding expectancy’ sion logic underlying with the the Federal Com- according to ascertain whether the (FCC’s) munications Commission’s cutoff protection incumbent licensees undue to rule, objective limited-period licens- public.”) Cen- (citing detriment of the ing, ground and the need to licensing deci- Enterprises, tral Florida 683 sions on current data in order to reach cert, denied, (D.C.Cir.1982), F.2d 503 - informed decisions. The effect of the ma- 103 S.Ct. 76 L.Ed.2d 346 jority’s decision competition is to limit (1983)). sum, Media South (KHJ-TV) channel nine in Los Angeles to inapposite its own terms involving to a case what this court has described as two ongoing comparative proceeding. “equally poor contenders.”1 For these reasons, the majority errs in affirming IV Commission’s denial of Angels’s We have examined with care the conten- motion to petition intervene and reopen; to tions that this court should mandate termi- I must respectfully firmly but dissent. nation of the RKO/Fidelity comparative them, proceedings, and have found

analysis, to be Obviously, without merit. I. Facts being given one cannot dismay resist length proceeding. over sheer of this emphasize Let us at the outset that I do Nevertheless, we take the case as it comes any not condone action that perpetu- that, to us. And it is our considered view ate RKO’s status as licensee of channel given present posture case, Angeles. nine in Los charges The leveled inappropriate would be to order a new to, including, but not limited ille- RKO— ceeding.14 Notwithstanding City of An- gal foreign payments by parent compa- gels’ vigorous protestations to the con- ny, the General Tire Company, and Rubber trary, opening the inevitable result of his illegal tie-ins between parent’s sales of the proceeding to yet all comers would be fur- goods advertising and lack of delay in determining ther who should be grave. candor before the Commission —are Angeles. the licensee of Channel 9 in Los reviewing As one commentator this case This decline to do. observed, “Agencies rarely are confronted The decision under review therefore large body of admissions ca- [such] pable being interpreted as a confession Affirmed. Dissenting misconduct.”2 from a Com- WILKEY, Judge, dissenting. Circuit (on vote) order mission a three to two re- newing license, operating Commis- majority City Angels’s denies mo- “decision, sioner Johnson stated that- the petition reopen tion to intervene and granting RKO’s renewal proceedings. It holds that a Angeles, may very KHJ-TV in Los well award a television license —valid years the worst decision of this “open” for five still Commission dur- nearly after —is ing my twenty years, years term of contravention of an earlier seven and five cross-purposes Judge agreed, decision of this court and at months.”3 adding Bazelon suggestion 14. The dissent's that the result here is 1. Inc. v. Federal Communica- guided Comm’n, put the "desire (D.C.Cir.), RKO out of the tions broadcasting Angeles,” business in Los 46 L.Ed.2d infra (1975). misperceives our role in the review of task, agency important, action. Our limited but straightforward Tollin, is a one—to determine whether Unique The RKO Case: Facts with Ex refusing City the Commission erred in of An- traordinary Consequences, 35 Fed.Com.LJ. gels’ motion to intervene in this It put any is not our mission to seek to RKO or entity broadcasting other out of the business in 3. RKO 44 F.C.C.2d anywhere or else. (1973) (Johnson, Comm’r, dissenting). competition for “[djespite Commission, eral Communications the intense was re- honor, agree.”4 I am constrained markably oblivious events and to the expeditious need for an resolution of this out of the put RKO our desire to But controversy. proceeding began This in Oc- in Los broadcasting business tober that, Commission released the fact not blind us should it, Initial hearing Decision of the put examiner and Fletcher Beaumont playwrights nearly years later, worse than four [may August on 13 medicine “the be] requires 1969,9 tele- Federal law and did not hear malady.” argument oral until only after com- years that, licenses be awarded two vision after on 12 October 1971. the best determine hearings to parative March the Commission As 22 of purpose of com- The licensee.5 qualified decision, prompting a still not reached had ill-served when hearings is parative writ of artificially petition for a Fidelity limited to file a of candidates pool Although The al- re- poor court. we “equally contenders.”6 in this mandamus two li- writ, improprieties of incumbent the Com- leged found fused issue the already cense-holder, RKO, been hint- have to have been unreason- mission’s challenger, Fidelity Tele- But the at. ed report it to its ably delayed and ordered Inc., vision, much better to did not look thirty days.10 The Com- progress within examiner, that “Fi- hearing concluded who (on July), 6 report progress its mission did standpoint of delity from bad” look[ed] when issued a decision still not but had ownership manage- integration of petition 21 Novem- its Fidelity renewed and, along with ment criterion 1973, before On 6 December ber 1973.11 To licensee.”7 “bargain as a broadcast no act, finally this court could instance, Fidelity proposed specific a take its decision. announced were of its shareholders —who that two only part and neither of whom time work hearing The ex- Commission reversed paid experience supervise had broadcast application aminer that “the of and ordered — hearing examiner The staff. GRANTED, DEEMED BE RKO ... IS TO being as ei- suggestion characterized Fidelity application ... IS insincere.8 or ther “witless[]” DENIED, subject BE DEEMED TO may appropri- whatever action deemed Fidelity competing were RKO and While following resolution the matters in ate being quali- the least for distinction nine, license renewal Docket No. 18759 the ostensi- applicant [a for channel fied interest, later, years ceeding the Fed- Two guardian public Boston].” ble correctly Television, philosophy derided Fidelity Federal that the examiner Communica- 4. J., insincere; Comm'n, (Bazelon, being who at 726 as either ‘witless’ or has tions banc). rehearing aspects dissenting en shown lack of candor in certain from denial of —and naked____’’ who (footnote omitted)). before the rather comes (1982). 309(e) compara- The U.S.C. See 47 5. hearing originated requirement the Su- tive preme in Ashbacker Radio Court’s decision General, (KHJ-TV), 8. Inc. 44 F.C.C.2d at Comm'n, Corp. v. Federal Communications 227. 327, 333, S.Ct. L.Ed. (1945). 9. See id. at 149. Television, Fidelity v. Federal Communica- Inc. Television, Fidelity Inc. v. Federal Communi- Comm’n, 515 F.2d tions Comm'n, (D.C.Cir. 22 No. Mar. cations 73-1313 1973) (unreported). (KHJ-TV),44 F.C.C.2d 7. RKO Inc. 1969); (Initial accord Decision Television, v. Federal Com- 11. See Communications Inc. v. Federal Comm’n, (D.C. munications Comm’n, curiam) (denying (per 515 F.2d at 705 Cir.), denied, 423 U.S. banc) ("When petition rehearing en L.Ed,2d (1975). away, left with the distinct clears we are smoke 'nothing' applicant, impression that we have 44 F.C.C.2d 12. RKO of a South- who has offered a novel construct integration philosophy; land service who affirmed, The Commission’s 1973 Decision Was conditional the A. According Final to a Prior Decision proceeding.13 of the Boston outcome this Court affirmance, years after our Five Although majority quite right determined that RKO was not point agency’s out that an construction of of the Boston sta- qualified to be licensee its own orders is entitled to substantial application for tion and denied its renew- deference,17 an earlier decision of this court time, adopted At the same an order al.14 construed the FCC’s 1973 order conditional- finding in the Los case that RKO ly granting RKO’s renewal final.18 As we stated in requisite qualifications Tele- lacked the to re- vision, Inc. v. Federal Communications time, main licensee of KHJ-TV.15 At that Commission, City Angels filed a motion leave to principle finality in administra- petition reopen proceed- intervene and not, however, tive governed law is by the ings. The Commission did not even con- agency’s administrative characterization petition sider the motion and until three action, rather, but a realistic years elapsed, had then denied assessment of the nature and effect of Angels’s request conclusory para- in a sought Hence, the order to be reviewed. graph.16 majority denies this motion “a final order necessarily need not be the opinion respectfully I today; from its dis- very last order” in agency proceeding, sent. but rather is purposes final for judicial of “impose[s]

review when it an obligation, right, or legal some den[ies] fix[es] II. Analysis relationship as a consummation of the 19 process.” administrative comparative The hearing between RKO This by authoritative decision panel of was closed off in 1973 circuit this merits at least as much defer- FCC; action of the the Commission’s condi- ence as that showed majority tional order was affirmed court Commission in this case. on, point 1975. From that the Commission 1. The majority’s straw man could challenges entertain to the license- majority up when, The sets a straw man holder of channel nine only proceed- in new describing theory case, RKO’s of the ings. proceeding A new ipso open is facto argument refutes the that “the sole condi- challengers to new Fidelity. as well as to tion grant contained in the Commission’s of Because the instant cannot rea- its license renewal in the face Fidelity’s sonably be understood as a continuation of challenge reciprocity based begun the one in 1965 and terminated issue; once this issue was resolved favor- the Commission’s order in it must ably argument goes, therefor be a which ceeding automatically terminated.”20 If Angels should be allowed to intervene. depiction this were an accurate of the Television, General, 13. See 16. See RKO (KHJ-TV), Inc. v. Federal Com- Inc. 54 Rad. Comm’n, munications (P F) (1983). F.2d at 703 n. 45. 515 & 59 Reg.2d General, (WNAC-TV), 14. See RKO Inc. F.C. 17. See Maj.Op. General, (1980), modified, Inc. C.2d 1, 2-3 Comm'n, v. Federal Communications 670 F.2d 18. Inc. v. Federal Com- cert, (D.C.Cir.1981), 215, 221-38 Comm'n, munications L.Ed.2d (D.C.Cir.1974) curiam). (per 15. See RKO 78 F.C.C.2d (footnotes omitted). 19. Id. at 448 (1980), modified, 355, 355-56 Comm'n, v. Federal Communications 670 F.2d at Maj.Op. 221-38. on the ultimate outcome decision) point in events, have a sion’s majority proceedings.” after the WNAC court remanded

wondering why this [Boston] sup- anticompetitive holding that conduct — 2. decision this court ad- ground defeasance posedly sole to be the FCC’s 1973 order judging granted conditionally renewal license final disqualifi- support RKO’s RKO —could not licensee.21 cation rejected In 1974 court the Commis- license mission could the Commission’s rendered continued licensure solely But the condition would be challenge inappropriate only anticompetitive strip RKO order to its basic removed —and under — successfully surviv- predicated RKO’s conduct. if it qualifica- operating pertained the Com- remand fact, judicial review.” We the Commission’s for so at this time.”25 constituted ^[1973] therefore sion’s holding.27 not a order is contention that a final order for not properly Instead, decision of December final “its had “[w]e [held] before the good 6 December purposes reasons First, finality proceeding. The ma- we tions in the Boston described indicia it states the order and its historical context. acknowledges as much when within jority “[tjhis subse- in a footnote that court’s The order purports December itself order quent Hearing of the complete affirmance review 1973] of the [FCC’s it; any way modify purport Fideli- did not Examiner's decision favor of instead, finality adopted or- simply ty____ the FCC of that determina- tion made renewal of in the 6 December order. der.” That order manifest “subject to what- merely If the Commission intended operating appraisal competing appli- interim appropriate ever action may be deemed cations on the basis of the Los of the matters following resolution [includ- record, decipher why a loss are at to any other ing anticompetitive conduct and undertook a thor- Commission such qualifications”] in affecting “basic matters ough applicant’s qualifica- review of each Boston license renewal Docket No. 18759 [a 23 tions. Likewise, af- this court’s proceeding].” Moreover, 1973 order an interim is not firmance the Commission’s decision (as what was involved in the two manda- made was the Commis- was “conditional General, abeyance subject (citing to “such id. ra 21. See at 661 RKO Inc. v. 215, Comm'n, appears necessary appro- 670 F.2d action ... as to be and Federal Communications cert, 927, in, denied, (D.C.Cir.1981), light priate evidence and introduced of, (1982)). 102 S.Ct. 72 L.Ed.2d the outcome the Boston concern- General, qualifications of RKO Inc. to be omitted). (citation at 661 n. 4 or continue be a licensee the Commis- Id. to 22. sion”). General, 44 F.C.C.2d 23. Television, added). Fidelity (1973) Inc. v. Communi- (emphasis 25. Federal Comm'n, (D.C.Cir. cations 1974) curiam). (per Communi- 24. Federal Comm’n, (D.C. 703 n. 45 cations Cir.) omitted), (emphasis added citation 444. L.Ed.2d 253 majority’s lengthy discussion of pro- the Com- The Commission convened the Boston breadth the condition attached to order, ceeding, party, Fidelity's scope a mission’s and the was made qualifications participation rights proceeding, as broadcast is consider RKO’s basic Boston (KHI-TV point. any probative Absent licensee. See RKO beside more evidence, WNAC-TV), (authoriz- condition with a F.C.C.2d broad combined ing Fidelity hearing wide-ranging right participate "participate in on the in a concurrent issues, designated pertain as detracts from the likelihood that insofar such issues Inc., qualifications is we need to such order final. But not look Commission”); secondary (promising court’s id. evidence in this case. This a licensee of the any favoring dispositive. to hold RKO over 1974 decision is decision proceedings. mus ‘deeming’ was if the order Commission the denial of Fideli- confronted two decisions of this court ty’s application eventually reversed,” unequivocally wherein we concluded that operate RKO will continue to KHJ-TV in order Angeles pro- in the Los final meantime, “at least until the Boston issue, ceeding must but declined to so proceeding is terminated.”30 order the Commission on the basis of its Third, we considered the effect of review that representations final on the process administrative in reaching forthcoming. was The 6 December our decision that the Commission’s 1973 expressed Commission order either order Although was final. 6 Decem- “[t]he purported comply effort to Commission’s may very ber order not last order directives, implied with this court’s or issued Ange- a deliberate effort to deceive this Commission in the Los decision. court or evade its proceeding,” les Fidelity interpreted the 6 December promulgated order was high- at the [t]he order as When learned that final.... est level of the Commission after com- issued, the 6 December order had it felt plete evaluation of the entire evidence sought the relief it of a —release produced proceeding which, in a early as provided by final order —had been the Commission decided to iso- Commission, accordingly requested late from the Boston That petition the court to dismiss its renewed only applicants involved in the Los for writ of mandamus as moot. Had the Angeles proceeding were RKO and Fidel- felt that the order was not a ity, comparative qualifications whose determination, perceive final we fail to have now been on the resolved basis of why respond did not complete compiled record request____ persuasive ceeding, the order’s fi- aspect Another of the 6 December or nality.31 dispo finality der which reveals its is its petition sition RKO’s to dismiss Fi conclusion, we exclaimed that “it is delity’s a license as beyond peradventure clear that the Decem- moot. If the 6 December order was not ber order is a determination of Fi- final a final resolution of the Los delity’s application on the basis of the proceeding, the Commission’s rationale record in Angeles proceeding.” the Los us, dismissing petition escapes logical only dismissal is since such a if 3. The propriety to anoth- of deference decision on the basis of that final panel er this circuit of record had been made.28 opinion in Fidelity Our Second, pointed impact we out that “[t]he v. Federal Communications Commission the of 6 December order on but- was not intended to language be mere in tresses our conclusion” that the order is final and hence contending reviewable.29 For which “the sides “[e]ven [could take] (emphasis being 28. 502 F.2d at 449-50 added and broadcast licensee then made in Boston. omitted). omitted and footnotes grant This form of defeasible resembles a con- title, veyance subsequent of with a condition Id. at 450. which could lead to divestiture—title is con- veyed despite possibility at the time the that the statutory authority practice 30. Id. The for this contingency will materialize. The defeasible 307(c) (1982). is found at 47 U.S.C. § perfectly form of RKO’s license is therefore added). (emphasis 31. 502 F.2d at 451 my understanding consistent with —and understanding panel of our in —that added). (emphasis 32. Id. at 452 FCC’s 1973 decision was a final order which order award- The Commission made its 1973 proceedings relating terminated to channel ing channel to RKO over condi- nine Angeles. nine in Los successfully surviving tional challenge qualifications be a to its basic agency, an administrative it re- fore That decision was —and comfort.” ... prior judgment respect a of this au- fuses to thought it remained —the today I until court. of this court determin- decision thoritative 1973 order ing whether Commission’s 1973 Decision The Commission’s B. final; in decided no if this court was Be to Be Final in Should Construed did, says majority now than the more Interest in Favor Light the Public of the merits of wrong to reach

we were Licensing Qualified the Most order because Commission’s Broadcaster regarding Remarks ripe for review. not majori- finality opinions, in other if a construction of the Commis- Even upon,34 are reliance ty properly disclaims final com- 1973 order as were not sion’s in strictest sense gratuitous logic pelled in this case it is—the —dic.ta —and term. rule, underlying the Commission’s cutoff limited-period licensing, theory behind not majority today would if the Even rapid changes appli- evident in the and the panel the same result have reached community for channel nine and the cants judg- the earlier court reached require proceed- they would serve that this respected colleagues should be ment of our reopened. ing be expectation of consisten- legitimate and the litigants part agencies cy on the purpose 1. rule. cutoff Wright, fulfilled. As Professors should be regu- discharge responsibility To its Miller, Cooper in their discussion state broadcasting “public case,35 open-air defer- late the doctrine of law of interest,” the Commission must balance regard to an “issue ence is due even with any competing considerations. On the one implicitly despite the lack of resolved hand, “[tjhere palpable public inter- is the The treatise writers explicit statement.”36 assuring remaining that the limited “[rjelationships within a est point out qualified greater go facilities to the best appeals demand court of deference hand, “[tjhere is they typi- applicant”; on the other rulings, partly because to earlier procedures and adminis- judgment of also an interest cally involve the concurrent techniques trative that enable the Commis- judges, importantly and more two or more efficiently, they usually represent a deliberate sion to handle work load because optimum already with use of limited administrative reached in a case that The cutoff rule fulfills the designed to control fur- resources.”38 well advanced and ironic, theory latter function. It is based on the given It is proceedings.”37 ther achieving finality expedition that some willingness prostrate itself be- majority’s granted: If the motion to intervene should be Maj.Op. proceeding per- terminated in then proceeding proceed- the current is a new force 34. See id. at 660-661. all, ing open including City Angeles; if the merely a current continuation technically is not 35. Law of the case doctrine proceeding, decision of this the 1965 proceedings: applicable my under view of these holding the Commission's order to be fi- began in 1965 was termi- If the case, proceeding nal is the law of the the thus 1973 order and nated the Commission’s in terminated this court’s affirmance court, by this this the 1975 affirmance then and the same result is reached. holding the Commission's order court's decision appeal ripe was rendered in to be "final’’ and for Cooper, 36. 18 C. A. Miller & E. Wright, Federal proceeding current one. a different front the at 789 dilemma, Practice Procedure caught majority for if But the in (footnote omitted). terminated in 1973 the was not majority’s holding upshot of the —which is the added). (emphasis 37. holding today this court’s earlier decision —then be final is the the order to Commission’s 1973 Athens, (WATH) Com- v. Federal be fol- 38. Radio law the and should therefore of case (D.C. Comm'n, Thus, majority. whichever view munications lowed the case, Cir.1968). City Angels’s in this of one takes of events comparative hearings in of licenses is the calls for the award with new interest. The rule works well in public entrants at time.44 The licensing ordinary comparative hearings, but public cess assumes the from benefits extraordinary—the proceeding has case periodic qualifications the reexamination of nearly twenty years.39 In dragged on for of incumbent licenseholders and considera- case, applicants off new for cutting any challengers tion of desire to enter who both RKO and Fidel- channel nine insulates than nineteen the field. After more years, ity competition precisely “at the time from principle licensing the of limited-period de- public might the interest favor the when opened mands that the up ranks be to new spur competition of or an alternative licen- just challengers, they in ordinary as are the see.” years. situation after The five promote competition This desire to is re- square cannot its keeping action here the of this circuit flected the ranks challenges closed but after two Corporation v. South Media Federal years—both nineteen discredited several Communications Commission.41 In that ways—with the policy fundamental held could not ease we that the Commission act administering. it is acceptance applications delay competing lengthy hearings when had to held con- 3. Changes in the applicants license (RKO’s) cerning a broadcast licensee’s ba- the community they would Although City An- qualifications.42 sic serve intervenor, appears as an gels here require purpose its intervention is to Fidelity, Because greater and the open Commission to new Angeles Los area metropolitan they seek Angels, along experienced serve changes have dramatic applicants, with various other would have since and Fidelity filed ex- mutually compete opportunity for the license applications clusive the Commis- operate past on channel- nine. Based on required sion should to convene newa experience broadcasting in the California proceeding to intervening consider market, estimates ability events and the challengers of new reasonably could therefore antici- “[o]ne meet dynamic the needs of the pate applicants a sizeable number of for community. the Los VHF channel.”43 compiled record this case was first limited-period The logic behind li- 2. Fidelity’s management and inves- censing changed significantly past tors have in the years. seventy nineteen percent The communications act limits the dura- Almost years Fidelity’s tion of broadcast licenses to five changed stock hands between general procedural ap- 39. A rule should not be See id. at 715. plied way in such as to undermine the majority’s attempted distinction—that purposes designed it was to serve. WAIT Cf. compara- court in New South called Media Comm’n, Radio Federal Communications hearings comparative hearing tive while a al- (D.C.Cir.1969) (“[A] general F.2d rule, ready exists in this sterile. case—is A stale objectives deemed valid because overall documenting "qualifications” record two interest, public may are in not be in the adequately mediocre contenders does not fulfill ‘public applicant interest' if extended to an who objectives comparative hearing. proposes a that will new service not undermine applicants years Fresh are after needed nineteen rule, policy, served been satisfy competition the concern interest.”), adjudged public heart of New South Media. S.Ct. 43. Brief for Federal Communications Commis- Assoc., Broadcasting 40. Carlisle F.C.C.2d sion at 23 n. 25. (1976) (deferment appli- renewal 889 cation). 307(c), 309(e) (1982). 44. See 47 U.S.C. §§ (D.C.Cir.1982). 41. F.2d 685 708

674 1983, gent licensing decision —it the most of is also and the number share and

1965 glaring deficiency seven times.45 the current record. increased over holders addition, currently and experiencing a coordinator is such program Angeles Los immigrants has twice great of a influx of that some long-time stockholder charges involving The guilty to criminal have it to an invasion.47 pled likened grand Angeles changes fraud and theft.46 so dramatic that Los are Time magazine appeared the cover of on may also be of different The status many just last summer.48 transforma- years ago. On nineteen from what was rapid population tions include a increase record, we cannot know wheth- the current (more foreign two million additional than requisite true or not because this is er 1970)49 immigrants changes since and inquiry made. But has not been factual composition50 of that would ethnic the sort point the Com- precisely is —until impact of on selection a broadcaster evidentiary holds a mission serve Los area.51 RKO has will not know whether years it filed changed in the nineteen since Language many decisions of this court its license to chan- renew an unwillingness agencies evince an to allow nine. nel make decisions based on outdated therefore unreliable factual records.52 of Inquiry into transformed needs "in- majority's observation cases perhaps of that these Angeles service area the Los circumstance, reaching importance generally an intelli- volved some greatest best, Reply Appellant prolonged have the ultimate choice 45. See Brief of unconscionably long period beyond the assem- bling choice must of the facts which that 46. See id. at 7. necessity prepared of be based ... We are not 1983, Island, say guardianship public to interest, ... that the of the 13 June 47. See The Ellis Time, 18, by Congress the Commis- entrusted sion, adequately by confining the effectuated light applicants choice to these two 48. See id. put years ago. over We facts on the record ten 1982, reopened, according think should ("[Djuring See id. to Rand 90,000 estimates, provided foreign adequate opportunity re- immigrants for the more than 1970, there, ceipt applications persons who more than 2 mil- of new from settled and since cert, herein."), lion.”). appeared de- have not hitherto nied, 893, 180, U.S. L.Ed.2d 150 382 15 (1965); ("The Telecasting Corp. Harrison v. Feder- 50. See id. at 19 statistical evidence Fort 379, Comm'n, immigrant tide In 1960 one in nine al F.2d 387 is stark. Communications 324 (D.C.Cir.1963) ("'[I]t Hispanic, Angeles County appropriate Los residents was would not Today one in ten a scant one 100 was Asian. for the in 1961 on the determine Nearly county supplemented a third of the is now is Asian. basis of a somewhat 1957 record Hispanic, ought are kin- as almost two-thirds L.A. VHF 2 to be where and to whom Channel limited, sweep dergartners. assigned.’ ethnic Nor is this that under our ... reiterate inner-city Although been a affair. whites have 2 in Terre 1961 order the license of Channel city minority in the hemmed-in Haute is to be determined the basis of (in population comparative qualifications applicants time 48% of a 3 for some as of now, time, million), suddenly, shy Anglos present also are rather a record made than on (3.8 county majority throughout (emphasis the whole of a added and omitted and in 1959...." million).' Today, omitted)), everyone in million out 7.9 citation WORZ, minority group.”). (1964); is a member L.A. S.Ct. Comm’n, F.2d Federal Communications (D.C.Cir.1963) curiam) (reporting many (per (denying pe- mem- 51. See id. at 19-20 cert, denied, banc), groups rehearing watch their own tition en bers of various ethnic lines, stations, (1964); ethnic not cross S.Ct. television do L.Ed.2d foreign primary Sangamon Valley States, tongue Corp. their lan- v. United retain a Television ("[I]t (D.C.Cir.1961) guage). appropriate Commission to not be for the WORZ, on the a somewhat Communications determine in 1961 basis of 52. See Inc. v. Federal Comm’n, (D.C.Cir.1965) (per supplemented record and to whom where ought (empha- curiam) (“[TJhis throughout assigned." VHF to be been beset Channel case has which, added)). by variety sis circumstances dubious

675 parte contacts, ex placed. Fidelity’s cast disdain presence 1.65, that for section integrity upon below, the of the Commis- doubt as reflected in the “rais 53 proceedings,” partial is best a very sion’s questions” es serious the 55—not least with, begin there remains response. To of which is the to majority extent which the expressing concern the language the over update can trust to the record on record; ma- agency’s the staleness remand. Nor can RKO sup be trusted to jority intimating no for basis ply critical concerning information its activ contacts must parte akin something to ex It has withholding ities. confessed to ma evidentiary a infect the record before financial terial information from the Com mandatory.54 More becomes past. Considering prior mission the the fundamentally, parte ex anti- contacts and information-providers record the on quated objectionable data are for the same majority rely, why which the risk the they on reason: render unreliable data possibility that the Commission bewill un rely which the Commission must to reach to compile sufficiently able a record fresh informed decision. both cases withstand staleness attack and the remedy is also the same: unreliable delay inevitable attendant such chal purged must be and new evi- information lenge? passage nearly The twenty just gathered. dence That the task years suggests proceed need for a new should case. undertake ing to create a new record and to entertain an entirely To obviate the need for new applications from whatever new contenders puts proceeding, majority great store demand to be heard. (1983), ap requires 47 C.F.R. 1.65 plicants inform the Commission of Spectre Unending Delay III. The “[sjubstantial significant changes furnished them to the Com The complaint granting information FCC's is that intervene, The majority’s Angels’s mission. reliance is mis motion to (one Maj.Op. year). delay at 665 n. 12. The this case between greater delay four and ten times than the changes Court confronted and more majority dramat- Transp., 54. The cites Bowman remaining grounds 281, ic. cases went off on Inc., Freight Sys., Arkansas-Best 419 U.S. other than v. staleness. United States Inter- 294-96, 438, 446-47, S.Ct. 42 447 95 L.Ed.2d 491, 524, Comm’n, state Commerce 396 U.S. 90 (1974), proposition for "a court shall 708, 724, (Interstate (1970) S.Ct. justified rarely overturning an administra- Commerce Commission need not take further grounds.” Maj.Op. tive on staleness merger impact evidence on when harm feared But the Court’s ratio decidendi was 666 n. 12. materialize); did not Illinois Comm'n Commerce grounds. comprised of narrower The Court States, 474, 481, 783, v. United 785, U.S. S.Ct. 292 54 parties to was concerned that if proceedings administrative (1934) (question 78 L.Ed. of fact 1371 repeatedly reopen were able Commission); the Interstate United Commerce decision, agency’s the eve “there record on of an Co., 490, Ry. v. States Northern U.S. Pacific hope would be little the administrative 407, 494, 406, (1933) (es- 53 S.Ct. 77 L.Ed. 914 cess could ever be in an order consummated toppel). subject reopening." that would not be 295, (quoting U.S. at 95 S.Ct. at 446 Interstate General, (KHJ-TV), 55. RKO Inc. 44 F.C.C.2d Jersey City, Commerce Comm’n v. 322 U.S. (1973); see Inc. Federal 1129, 1134, (1944)). 88 L.Ed. 1420 64 S.Ct. Comm'n, Communications 705 n. suggest majority does not (D.C.Cir.) curiam) (per (denying petition requires twenty years process a re- (”[T]he rehearing banc) en stated newal. ‘repeated timely that there awas failure to make Moreover, (and cited Bowman cases necessary reports developments of new af itself) reopen proceedings Bowman refused to fecting proposal. practice It noted that ‘this lapse grounds when be- of “staleness” [Fidelity’s] continued even after attention hearing evidentiary varied tween and decision keep was directed to need its house in years. ”), one and See Bowman between five order.’ S.Ct. Inc., Freight Sys., (1975); (KHJ- Transp., v. Arkansas-Best 46 L.Ed.2d Inc. (five 135-36; TV), years); St. 419 U.S. at 95 S.Ct. at 44 F.C.C.2d at cf. Rad.Reg.2d States, (P F) Joseph United Stock Yards Co. v. & 60 & n. 38, 47, 720, 723, 80 L.Ed. sibly candidates li- up proceeding superior new for broadcast opening to thereby in- censes the small incremental disrupt an otherwise order- is worth will applicants, be en- necessary vestment that would occasioned delay hearings, ly process, applications. years tertaining lucra- their more RKO with several vest ownership KHJ.56 The ma- of station tive pro- time Ultimately, the total this license fear, asserting that jority harbors the same ceeding up to the If the takes is FCC. FCC opening this “the inevitable result dispatch, with it determined to act will do is yet further ceeding to all comers would likely, given past so. More FCC’s ina- determining who should delay in bility the issues in to resolve this case Angeles.”57 in Los of Channel 9 licensee (nearly timely prompting fashion a writ Unfortunately, delay feared by this court to force the mandamus Com- majority will occur opinion), and the mission issue an case will this permitted to applicants new are decades, linger whether on for another two whether In not. the first for this license or apply applicants for are additional this channel (1) must place, remand the Commission allowed in or not. continue licen- RKO’s fitness to examine Fidelity’s examine of channel nine see IV. Conclusion (3) compare the qualifications, and

basic majority Because the affirms a Commis- prospective licen- of the two qualifications denying sion a motion intervene order complete, After that arduous task sees. thought I ter- a case which this court had to comply order the Commission—in nearly years ago, minated ten and because engage majority the dictates —must deprive holding today will the citizens of gather wide-ranging expedition to in- in a genuine benefits of update twenty-year-old formation competition broadcasting in television record. come, years I respectfully untold dis- monumental tasks could take These sent. fact, recognition In years. the Com- already two-phase entered mission second,

scheduling which the order58 under phase may begin not even un-

comparative, Thus,

til clear that sometime soon, re- proceeding will not be over

gardless appeal. of how resolve this necessarily

comparison to the resources resolving the contest between

committed additional time con- up opening

sumed challengers probably sig- not be Moreover, competition pos-

nificant. 84M-989, (KHJ-TV), 56. See Brief Federal Communications Com- FCC Nos. (27 1984). applicants mission 27-28. Feb. enlarge have filed various motions to the issues Maj.Op. delay final which could disposition the license to nine for channel 84-26, 58. many years more to come. (25 1984); Jan. Nos.

Case Details

Case Name: City of Angels Broadcasting, Inc. v. Federal Communications Commission, Fidelity Television, Inc., Rko General, Inc., Intervenors

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 28, 1984

Citation: 745 F.2d 656

Docket Number: 83-1741

Court Abbreviation: D.C. Cir.