*1 primary quality the national ambient air Measures Contingency D. applica- attainment date standard argues Finally, the Sierra Club part. ble under this Such measures contingency of measures that the' absence plan in shall be included revision as the revised precludes approval also contingency measures to take effect in we Washington Again, Area. for the SIPs any such case without further action agree. or the Administrator. State 172(c)(9) that requires the Act Section “specific include measures a revised SIP 7502(c); 7511a(c)(9) § § Id. id. see also make if the area fails to undertaken be (requiring contingency measures “be or attain progress, further reasonable in for area of plan included revision” quality air primary ambient national nonattainment). serious date.” by the attainment standard itself, As can be seen from the statute 7502(c)(9); see also id. § U.S.C. simply suggesting the EPA that a errs (revised 7511a(c)(9) for area of seri- § SIP contingency state need not include mea- provide ous nonattainment “shall sures in the revisions to the SIP it submits specific measures to be implementation of for an area of nonattainment. For this any if the area fails meet undertaken too, reason, authority EPA lacked milestone”). The EPA main- applicable approve the revised submitted SIPs measures are re- “contingency tains that States in this case. of the overall nonattainment quired part component of of each plan, not as feature III. Conclusion Compare U.S.C. plan.” 7502(c)(9) for the (“plan provide shall reasons, foregoing For the the EPA’s measures),
implementation” contingency approval of the revised for the Wash- SIPs 7502(c)(1) with, e.g., (“plan provisions §id. vacated, ington Metropolitan Area is provide” implementation shall Agency this matter is remanded to RACM). Therefore, EPA, says the it law- further consideration. fully provisions the revised approve Washington Area de- of the SIPs for the So ordered. contingency measures
spite the absence
therein. is, argument to the EPA’s
The answer out, to found points
as the Sierra Club be
in,§ 172(c), which lists the elements
must be included in revised SIP for spe- That section
area nonattainment.
cifically declares: provisions plan
The plan (including
items) under required to submitted part following: comply
this shall INC., RADIO, Appellant, NEW WORLD (9) Contingency measures plan provide imple- Such shall for the un- mentation of to be specific measures
dertaken area fails make rea- FEDERAL COMMUNICATIONS COMMISSION, Appellee. attain progress, sonable further *2 Corporation, Intervenor.
No. 01-1110.
United Court of Appeals, States
District of Columbia Circuit. Feb.
Argued
Decided HENDERSON, LeCRAFT
KAREN Judge: Circuit World), (New Radio, Inc. WUST, locat radio station *3 of AM licensee D.C., an order appeals Washington, ined Commis Communications Federal FCC) granting (Commission or sion Broadcasting Corpo Birach application for its license (Birach) renew ration City, WDMV(AM) in Pocomoke located Birach re Application Maryland. Renewal Corporation for WDMV(AM), Poco Station License of Rcd Maryland, (2001) (Renewal Applica 2001 WL the FCC tion). contends Applica the Renewal approving erred satisfy the failed to Birach tion convenience, necessi interest, and “public 309(k)(l) by of 47 U.S.C. ty” standard thirty-two months. for failing to broadcast that New World we conclude Because appeal. we dismiss standing, lacks argued cause Roberts Lawrence brief. Sher on Jared S. appellant. I. Counsel, Chandler, Federal E. Thomas the license WDMV acquired Birach Commission, argued Communications (Five Broadcasting, Inc. Five Star Mago, E. Jane appellee. cause Earlier, on Star) January Counsel, Communications Federal General applied Birach May Armstrong, M. Commission, Daniel and permit a construction for both Commission Counsel, Com- Federal General Associate license community change WDMV’s Commission, brief. onwas munications Brinklow, Mary- City Pocomoke for as- (Brinklow Application)1 for the brief was on land Diaz Gavin Stephen of the WDMV signment intervenor. Ap- (Assignment to Birach Star
from Five Assignment HENDERSON, plication). RANDOLPH Before: obli- the Commission advised ROGERS, Judges. Circuit agreement purchase under gations ap- the Commission’s contingent were by Circuit court filed for the Opinion As- Application. of the Birach proval Judge KAREN LeCRAFT 1-5. On No- Exh. Application, signment filed opinion Dissenting HENDERSON. both 25,1992 granted the FCC vember Judge RANDOLPH. by Circuit Brinklow not sold and it was go the air if off Brink- the station sought move FCC Br. a local station. did not have two already had low because Support of Grant (citing Br. in Birach's money stations, losing be- local 3-5). Application at likely to Brinklow competition, WDMVwas cause of Assignment Application and the Brinklow September 1995 New World filed an Application. January On day objection, informal claiming, alia, inter WDMV, Birach acquired Birach also noti- that Birach operated had not the radio fied the FCC that it and Five Star had station during the approximately 32 completed the assignment and that Five months that it held the WDMV license and Star had taken WDMV off the air as of had no firm plans to do so. On October 1993. See January 1993 1995 Birach filed an opposition, arguing Letter from Lauren Colby, counsel for Bi- that New World’s informal objection did rach, to FCC. Birch purchase did not constitute that, to deny and (for Five Star’s event, in any New World lacked standing *4 WDMV) at that time planned it on to petition file a to deny because it could resuming operations, construction, after at not show that injured it by grant- would new in facilities Brinklow. Id. ing the Application. Renewal In its Reply, New World acknowledged that “it lacks 6,May On 1994 Birach applied to the required the standing to maintain a peti- FCC extend the Brinklow construction which, tion to deny,” explained, it was the permit date, beyond May expiration 25 reason it “filed its pleading as an Informal stating that it was to obtain unable Objection, not a deny.” Octo- transmitter specified site in the Brinklow 11, ber 1995 Reply [to Birach’s Opposition Application. New World filed an informal ¶ Objection] to Informal at 3 5. objection extension request, alleging engaged Birach had in misrepresenta- 1996, On 15 having without re- tions lacked candor and/or connection sumed WDMV, broadcasting from Birach with its certification of availability in- again site applied change the community of cluded in the Brinklow Application. While license and relocate WDMV’s transmission attempted Birach to secure an facilities, alternate this time from Brinklow, transmitter site in Damascus, (Damascus WDMV re- Maryland Applica- tion). mained off the air pursuant to successive Damascus special FCC temporary authorizations. prompted by continuing inability Birach’s 1, August 1994 Letter from James R. specified secure the site in the Brinklow (three-month to Birach Burtle Application. authoriza- Opposing Birach every at silent); tion 9, to remain November 1994 step, New World filed a petition to dismiss Letter from James R. Burtle to Birach or deny the Application. Damascus (same); 13, February Letter from 1996, Telecommunications Act of (same); James R. Burtle to Birach May 104-104, (1996) Pub.L. No. 110 Stat. 56 19, 1995 Letter from James R. Burtle to (Telecom Act) became effective on Febru- (same); Birach September 11, 1995 Letter 8, ary 1996. Section 312(g) provides that from (same). R. James Burtle to Birach broadcasting “[i]f a station fails to transmit
The WDMV license that Birach acquired signals for any 12- consecutive from Five Star was expire scheduled to period, month then the station license 1,1995. October Consistent granted FCC operation of that broadcast rule requiring a applicant renewal to file expires station at the end of period, four date, months before expiration see any notwithstanding provision, term, or n conditionof the license to 73.3539, 47 C.F.R. Birach an applica- filed contrary.” tion for- renewal of broadcast Any U.S.C. 312(g). station silent as of WDMV, Pocomoke City, Maryland dated the date of enactment had one year from (Renewal May Application).2 On the effective date of the Telecom Act—that 2. The stamp date has date as June canceled request and low extension begin broad- 1997—to February
is, until
January
permit.
construction
Brinklow
automatically ex-
before
casting
Blair,
Linda
llr,.
Decision
1997 Letter
the new statuto-
satisfy
In order
pired.
Division,
Me
Mass
Chief,
Services
Audio
Five Star’s
directive,
purchased
ry
Bureau,3
addition, the letter deci
In
dia
transmission
Application,
Renewal
Birach’s
granted
at
sion
earlier,
not done
it
(which, as noted
allega
New World’s
stating
“because
Five
acquired
the time
...
relate
Objection
in its Informal
tions
Poco-
Star)
operations
resumed
status,
... we
silent
the station’s
only to
November
site
Maryland
applica
license renewal
pending
grant the
WDMV(AM)’s resumption
light
tion
Applica-
Damascus
Birach’s
light of
Id.4
operations.”
of broadcast
Ser-
Audio
January
tion, on
peti-
February
On
Media
Mass
the FGC’s
Division of
vices
January
reconsideration
tioned
Brink-
as moot
dismissed
Bureau
contingent
granting
applications
fication
Bureau
the Mass Media
3. On
*5
one
to
reduce interference
applications "will
Application as
Damascus
the
dismissed
in-
otherwise
or will
AM stations
unac-
or more
of the
grantable” because
"technically
service”).
strength
area of interference-free
signal
crease
overlap of
ceptable
contours
(WWCS(AM))'
reconsidera-
petitioned
Birach
for
then
World
New
station
with another
Pennsylvania in
reinstate-
Canonsburg,
Bureau's
the Mass Media
tion of
partly owned in
73.37(a).
asserting
Application,
§
Section
the Damascus
C.F.R.
of
ment
of 47
violation
presumed
will be
application
relied on
73.37(a)
improperly
provides that “no
that
Application,
of an
change of the
new WWCS
validity
a
of Birach’s
for
accepted
change would
be-
defective
proposed
claims was
existing
if
New World
station
which
strength con-
signal
a
overlap
attempted to revive
construction
[of
...
cause it
involve
de-
therein
under
automatically
another
with
forfeited
permit
tours]”
(2002).
23,
73.37(a)
August
§
See
regulations.
47 C.F.R.
scribed.
Commission’s
granted
applied for and been
Reconsideration
Petition for
1997 Birach
World
2001 New
day-
WWCS’s
Application
reduce
permit
Damascus
of
construction
of Reinstatement
73.3598(e)).
change
daytime di-
its
¶
§
power
(citing
time
and
47 -C.F.R.
4 6 & n.5
changes,
these
parameters;
antenna
reinstatement
rectional
also claimed that
New World
unac-
cured the
have
implemented, would
also
Division
"the-
premature
Bi-
overlap. See
ceptable
BP-19961015AB.
issues
of other
address a number
needs
appli-
modification
(e.g.,
never filed
Application,”
rach
to the [Damascus]
related
however,
changes,
implement
deny).
Id.
cation
petition to dismiss
New World's
expired on De-
permit
¶
its construction
Divi-
separate
Services
Audio
7. A
at 4-5
4,
21,
De-
January
1997 Letter
cember
a modification
ruling
related
letter
sion
Blair, Chief,
Services
Audio
WWTL(AM)
Linda
cision
filed
Station
for
application
from
Division,
1 n.2.
Bureau
Media
Mass
company, Elijah
Birach’s sister
9,
a new
filed
some Damascus
also addressed
Corporation,
On
18,
to eliminate
application
July
Letter
WWCS modification
See
Application issues.
pro-
overlap
the facilities
unacceptable
Doyle, Chief,
Ser-
Audio
H.
Ruling
Peter
apparent-
Application,
Division,
Broadcasting,
the Damascus
et al.
posed
Elijah
vices
the dismissal
led to
curing
ly
the defect
subject
petition
ruling
.for
That letter
Application.
Damascus
Au-
by New World
filed
reconsideration
Subsequently, the
at 2.
Letter Decision
of December
gust
2001. As
granted Birach’s
Media Bureau
Mass
Application
of the Damascus
reinstatement
Damas-
and reinstated
reconsideration
awaiting
reso-
apparently
pending,
remained
amend-
Birach’s
Application based
cus
New World’s
raised
issues
lution
Application
Damascus
that made
ment
petition for reconsideration.
ap-
contingent
WWCS
and new
also noted
Commis-
73.3517(c)
decision
The
letter
47 C.F.R.
pursuant to
plications
stations
to those
assistance
policy of
sion's
contingent modi-
file
(allowing AMlicensee
14, 1997 letter
granting
decision
Birach’s
New World filed a timely notice
ap-
Renewal Application, reasserting
argu
peal
on March
2001. Birach subse-
ments made
objection.
in its informal
quently intervened in support of the Com-
Division,
letter,
Audio
Services
mission.
denied
New World contends the FCC
New
petition for
decision to grant
reconsideration
the Renewal Application
and request
for a hearing on
November
arbitrary
capricious, because Bi-
1997. November
1997 Letter
rach
Decision
failed to broadcast any programming
Blair,
Linda
Chief,
Audio
more
thirty-one
Services
than
For the
months..
Division,
reason,
Media
Mass
Bureau.
same
New
New World contends the
World then petitioned for
FCC’s
review
public
order contravenes the
inter-
Commission on November
est. Finally,
1997. Bi
New
argues
World
that the
rach opposed New World’s petition.
On
failure to examine adequately
February 28, 2001 the
denied
whether Birach
FCC
New
made misrepresentations
World’s petition. See In Application
re
coincident with its Assignment and Brink-
Birach Broadcasting Corporation
Applications
low
Re
left unresolved questions
newal
WDMV(AM),
License
Station
of fact about
qualifications
Birach’s
to re-
City, Maryland,
main a
FCC Red
licensee. The FCC first challenges
(2001) (Order).
charge was first raised II. eighteen months after applications both final, ¶ had become untimely. Id. at 8. FCC challenges New The FCC further concluded that New standing, asserting New World is World’s argument was based the erro injured not grant of Birach’s Re neous view that Birach required newal Application for the make efforts to resume broadcasting 402(b) at license. Section of the Federal Pocomoke City while at the same time Act, §§ Communications 47 U.S.C. 151 et seeking to (1982) relocate to Brinklow and seq. (Act), then provides “any ... to Damascus. Id. Regarding any person subse aggrieved who is or whose interests quent misrepresentation involving adversely are affected any order of the operation of the station at Poco- Commission granting or denying any ap again the FCC found no plication” merit judicial seek review thereof. in New allegations.- 402(b)(6). Id. In light § 47 U.S.C. A is party “ag its longstanding policy encourage grieved” of. under the statute if it satisfies silent station resume operations, both the constitutional and re prudential FCC affirmed the grant of Birach’s Re quirements standing. Orange Park ¶ newal Application. Id. T.V., FCC, so con Florida 664, Inc. v. F.2d 811 cluding, it also noted that (D.C.Cir.1987); Birach had nev 670 see also Orr er been warned that keeping FERC, the station 979, (D.C.Cir. ville v. 147 F.3d 985 silent jeopardize any 1998) renewal appli (citing Louisiana Energy & Power cation. Id. FERC, Auth. 364, v. 141 F.3d 366
facing statutory 14, Division, deadline. See Audio Services Mass Media Bureau Blair, 1997 Letter Decision Chief, Linda at 3-4. 170 World’s claim is not
(D.C.Cir.1998)
D.C. station. New
“aggrieved”
(interpreting
Act,
States Su
support;
without
United
16
in Federal Power
party language
Court,
triad,
Camp
upheld
in the
825)).5
preme
U.S.C.
though
standing” even
“competitor
standing,
III
Article
To establish
injury was latent. See Ass’n
economic
(1)
injury-in-fact
allege
must
party
v.
397
Processing
Orgs. Camp,
Serv.
Data
(2)
“fairly
defen
that is
traceable”
150, 152,
829,
827,
25 L.Ed.2d
U.S.
90 S.Ct.
(3) likely to be re
dant’s conduct
(1970) (sellers
processing
of data
ser
184
judicial decision.
by a favorable
dressed
ruling allowing
had
to test
vices
FCC,
v.
Jersey
Corp.
Shore
processing
data
ser
national banks to sell
(D.C.Cir.1994)
1531,
(citing
1535
37 F.3d
“might entail
competition
vices
Wildlife, 504 U.S.
Lujan v. Defenders of
profits”
respon
future
some
loss
2130,
2136,
119 L.Ed.2d
112 S.Ct.
already preparing
per
dent
bank was
(1992)).
“injury-in-fact,”
To
351
establish
plaintiffs’
for two of
form such services
plaintiff
must show “an invasion of
Tours,
clients);
Camp,
Inc. v.
400
Arnold
(a)
interest which is
con
legally protected
158, 159,
45, 45-46,
27
91 S.Ct.
U.S.
(b)
actual or
particularized
crete and
(travel
(1970)
agents had
179
L.Ed.2d
imminent,
conjectural
hypothetical.”
challenge ruling
standing” to
“competitor
FCC,
Mobile Data Inc. v.
87
SunCom
&
allowing
provide
national
travel
banks
(citations
(D.C.Cir.1996)
F.3d
services);
Camp,
v.
Investment Co. Inst.
omitted).
party
is
burden
620-21, 91
1093-
U.S.
“clearly
allege
judicial review
seeking
(1971) (investment
com
172
competitor.
a
it as
directly affects
Wilson,
that
will
World,
Mount
unlike
that New
18, 1997
World
See,
February
New
e.g.,
raise
cannot
it
because
two bites
get
not
Deny Damascus
to Dismiss
Petition
subsequent
any
in
issues”
“programming
aware of
court is
While
pro- Application.
transfer
Application/license
Damascus
in the
compete
accurate,
apparent desire
distinction,
Birach’s
This
ceeding.8
market, New World’s
Washington,
Arti-
D.C.
New World
give
not
does
nonetheless
injury is too remote
re-
“injury-in-fact”
“chain
events”
standing.
III
cle
we
say, as
did
cannot
person
standing.
a
We
distinguish
confer
“serves
quirement
Park,
spec
a
World has
that New
Orange
the outcome
in
in
stake
a direct
with
that
“concrete,
interest
a per-
economic
small—-from
ified
though
litigation —even
by the Com
damaged
problem.”
in the
perceptibly
interest
a mere
has been
son with
Park,
F.2d
Challenging
Orange
811
v. Students
States
mission’s
United
award.”
(SCRAP),
added);
Associ
see also
Procedures
Agency
(emphasis
at
Regulatory
673
FERC,
2417
F.2d
899
n.
93
v.
ated Gas Distribs.
U.S.
(1973).
(D.C.Cir.1990)
World’s
(competitor
New
L.Ed.2d
n.
issues”
action
challenged
raising “programming
“the
in
standing
interest
in
stake
enough
illegal
it
direct
transactions
give
allegedly
does not
authorized
Renewal.Applica-
poten
Birach’s
and immediate
the outcome
the clear
have
that
here.
standing
sales”
to establish
own
petitioners’
tion
compete
tial to
Treasury
added)); National
(emphasis
attempts
past
Pointing to
States, 101
v.
Union
United
Employees
D.C.
Washington
to the
relocate
(no
(D.C.Cir.1996)
stand
1423, 1427
F.3d
that the
asserts
FCC’s
area,
“certainly impend
not
injury
ing
on
based
li
to renewal of
“is tantamount
decision
FAA,
Airlines,
Inc. v.
Northwest
ing”);
in
competing
radio station
for a
cense
(that
(D.C.Cir.1986)
par
195, 201
795 F.2d
in
support
there is
market.”
D.C.
While
in which
“imagine
can
circumstances
ty
that
assertion
caselaw
our court’s
action”
agency’s
by the
be affected
injury under Arti
cognizable
party suffers
addition,
standing).
insufficient
regulatory
agency “lift[s]
an
III when
cle
argument
events”
“chain of
or
competitors
other
their
restrictions
actions
independent
depends
Loui
competition,”
increased
allow[s]
wise
its case
FERC,
distinguishing
parties,
third
v.
Auth.
Energy
Power
siana
variety competitor
(citations
“garden
(D.C.Cir.1998)
364, 367
141 F.3d
simply
court
require
which
cases”
not fit
omitted),
description does
this
“firmly
causation
a chain of
acknowledge
this hold
read
here. We
decision
of economics.”
in the basic law
rooted
standing” doc
“competitor
ing
apply
ICC,
F.2d
Transp. Union
impos United
itself
action that
agency
trine to an
Moreover, Birach
(D.C.Cir.1989).
908, 913
i.e.,
provides
that
injury,
competitive
aes
Five Star’s
purchased
now
ex has
existing competitor
to an
benefits
to broadcast
in order
peti
in the
of entrants
number
pands the
“tan
Finally, New
location.
market,
action
agency
tioner’s
Birach,
contention assumes
tamount”
direction
most,
step
is,
the first
relocate
efforts to
past
has failed
which
is criti
*9
competition.
difference
future
FCC
license,
persuade
now
will
op
have an
New World will
cal because
field.
reverse
decision
any FCC
challenge
portunity
transfer
subsequent
license
in.
regulation
broadcast
FCC
no
8.
World cites
proceeding.
raising
failure
prohibit
Birach's
its
would
reasons,
foregoing
For the
decide
whether the station had served “the
is
appeal
public interest, convenience, and necessi-
309(k).
ty.” 47
U.S.C.
giveWe
“sub-
Dismissed.
judicial
stantial
deference” to the FCC’s
RANDOLPH, Circuit Judge, dissenting:
judgment
regard.
this
FCC v. WNCN
Guild,
Listeners
582, 596,
450 U.S.
Because the
yet granted
FCC has not
1266, 1275,
(1981).
ernment action.” op. at “standing renewal alone” is not
enough. Maj. op. at 171.
I respectfully disagree. A party need
not wait until an allegedly after illegal
agency action injury causes to bring suit. The test for constitutional standing is less GERBER, John E. III and Defenders plaintiffs severe: a injury needs to be Wildlife, Appellants. imminent, “actual or conjectural hypothetical.” Bennett v. Spear, 520 U.S. NORTON, Secretary, Gale A. 154, 167, 117 S.Ct. 137 L.Ed.2d Department Interior, (1997). For years almost ten en-—its al., Appellees. et tire term of ownership sought has —Birach move WDMV into the D.C. broadcast No. 01-5247. market. The approved compa- United States of Appeals, Court first ny’s application move, and Birach District of Columbia Circuit. currently attempting to resolve the objections FCC’s technical to its second Argued May 7, 2002.
request. did not broadcast Decided years, almost four further proof that Bi- sought rach the WDMV license so money
make in Washington, mar- D.C.
ket, rather than the unprofitable Poco- Maryland, market. com- Any
petitive injury is surely “imminent.”-
I would affirm In renewing the FCC. WDMV,
the license for the FCC had to