United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2002 Decided July 2, 2002
No. 01-1110
New World Radio, Inc.,
Appellant
v.
Federal Communications Commission,
Appellee
Birach Broadcasting Corporation,
Intervenor
Appeal of an Order of the
Federal Communications Commission
Lawrence Roberts argued the cause for the appellant.
Jared S. Sher was on brief.
Thomas E. Chandler, Counsel, Federal Communications
Commission, argued the cause for the appellee. Jane E.
Mago, General Counsel, Federal Communications Commis-
sion, and Daniel M. Armstrong, Associate General Counsel,
Federal Communications Commission, was on brief.
Stephen Diaz Gavin was on brief for the intervenor.
Before: Henderson, Randolph and Rogers, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Dissenting opinion filed by Circuit Judge Randolph.
Karen LeCraft Henderson, Circuit Judge: New World
Radio, Inc. (New World), licensee of AM radio station WUST,
located in Washington, D.C., appeals an order of the Federal
Communications Commission (Commission or FCC) granting
the application of Birach Broadcasting Corporation (Birach)
to renew its license for WDMV(AM) located in Pocomoke
City, Maryland. In re Application of Birach Broadcasting
Corporation for Renewal of License of Station WDMV(AM),
Pocomoke City, Maryland, 16 FCC Rcd 5015 (2001) (Renewal
Application). New World contends the FCC erred in approv-
ing the Renewal Application because Birach failed to satisfy
the "public interest, convenience, and necessity" standard of
47 U.S.C. s 309(k)(1) by failing to broadcast for thirty-two
months. Because we conclude that New World lacks stand-
ing, we dismiss its appeal.
I.
Birach acquired the license for WDMV from Five Star
Broadcasting, Inc. (Five Star) on January 15, 1993. Earlier,
on May 8, 1992, Birach had applied to the Commission for
both a construction permit to change WDMV's community of
license from Pocomoke City to Brinklow, Maryland (Brinklow
Application)1 and for assignment of the WDMV broadcast
license from Five Star to Birach (Assignment Application).
__________
1 Birach sought to move the station to Brinklow because Poco-
moke City already had two local stations, WDMV was losing money
because of the competition, WDMV was likely to go off the air if it
was not sold and Brinklow did not have a local station. FCC Br. 4
(citing Birach's Br. in Support of Grant of Brinklow Application at
3-5).
The Assignment Application advised the Commission that
Birach's obligations under the purchase agreement were con-
tingent on the Commission's approval of the Birach Applica-
tion. See Assignment Application, Exh. I-5. On November
25, 1992 the FCC granted both the Assignment Application
and the Brinklow Application. On January 15, 1993, the day
Birach acquired WDMV, Birach also notified the FCC that it
and Five Star had completed the assignment and that Five
Star had taken WDMV off the air as of January 14, 1993.
See January 15, 1993 Letter from Lauren Colby, counsel for
Birach, to FCC. Birch did not purchase Five Star's Poco-
moke City facilities (for WDMV) at that time because it
planned on resuming operations, after construction, at new
facilities in Brinklow. Id.
On May 6, 1994 Birach applied to the FCC to extend the
Brinklow construction permit beyond the May 25 expiration
date, stating that it was unable to obtain the transmitter site
specified in the Brinklow Application. New World filed an
informal objection to the extension request, alleging that
Birach had engaged in misrepresentations and/or lacked can-
dor in connection with its certification of site availability
included in the Brinklow Application. While Birach attempt-
ed to secure an alternate transmitter site in Brinklow,
WDMV remained off the air pursuant to successive FCC
special temporary authorizations. See August 1, 1994 Letter
from James R. Burtle to Birach (three-month authorization to
remain silent); November 9, 1994 Letter from James R.
Burtle to Birach (same); February 13, 1995 Letter from
James R. Burtle to Birach (same); May 19, 1995 Letter from
James R. Burtle to Birach (same); September 11, 1995 Letter
from James R. Burtle to Birach (same).
The WDMV license that Birach acquired from Five Star
was scheduled to expire on October 1, 1995. Consistent with
the FCC rule requiring a renewal applicant to file four
months before the expiration date, see 47 C.F.R. 73.3539,
Birach filed an application for renewal of broadcast station
WDMV, Pocomoke City, Maryland dated May 30, 1995 (Re-
newal Application).2 On September 18, 1995 New World filed
an informal objection, claiming, inter alia, that Birach had
not operated the radio station during the approximately 32
months that it held the WDMV license and had no firm plans
to do so. On October 2, 1995 Birach filed an opposition,
arguing that New World's informal objection did not consti-
tute a petition to deny and that, in any event, New World
lacked standing to file a petition to deny because it could not
show that it would be injured by granting the Renewal
Application. In its Reply, New World acknowledged that "it
lacks the required standing to maintain a petition to deny,"
which, it explained, was the reason it "filed its pleading as an
Informal Objection, not a petition to deny." October 11, 1995
Reply [to Birach's Opposition to Informal Objection] at 3 p 5.
On July 15 1996, without having resumed broadcasting
from WDMV, Birach again applied to change the community
of license and relocate WDMV's transmission facilities, this
time from Pocomoke City to Damascus, Maryland (Damascus
Application). The Damascus Application was prompted by
Birach's continuing inability to secure the site specified in the
Brinklow Application. Opposing Birach at every step, New
World filed a petition to dismiss or deny the Damascus
Application.
The Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 (1996) (Telecom Act) became effective on Febru-
ary 8, 1996. Section 312(g) provides that "[i]f a broadcasting
station fails to transmit broadcast signals for any consecutive
12-month period, then the station license granted for the
operation of that broadcast station expires at the end of that
period, notwithstanding any provision, term, or condition of
the license to the contrary." 47 U.S.C. 312(g). Any station
silent as of the date of enactment had one year from the
effective date of the Telecom Act--that is, until February 9,
1997--to begin broadcasting before the license automatically
expired. In order to satisfy the new statutory directive,
Birach purchased Five Star's Pocomoke City transmission
facilities (which, as noted earlier, it had not done at the time
__________
2 The FCC date stamp has the date as June 8, 1995.
it acquired WDMV from Five Star) and resumed operations
at the Pocomoke City, Maryland site on November 11, 1996.
In light of Birach's Damascus Application, on January 14,
1997 the Audio Services Division of the FCC's Mass Media
Bureau dismissed as moot Birach's Brinklow extension re-
quest and canceled its Brinklow construction permit. Janu-
ary 14, 1997 Letter Decision from Linda Blair, Chief, Audio
Services Division, Mass Media Bureau.3 In addition, the
__________
3 On January 4, 2001 the Mass Media Bureau dismissed the
Damascus Application as not "technically grantable" because of the
unacceptable overlap of signal strength contours with another sta-
tion (WWCS(AM)) Birach partly owned in Canonsburg, Pennsylva-
nia in violation of 47 C.F.R. s 73.37(a). Section 73.37(a) provides
that "no application will be accepted for a change of the facilities of
an existing station if the proposed change would involve ... overlap
[of signal strength contours]" with another station as therein de-
scribed. 47 C.F.R. s 73.37(a) (2002). In 1997 Birach had applied
for and been granted a construction permit to reduce WWCS's
daytime power and to change its daytime directional antenna pa-
rameters; these changes, if implemented, would have cured the
unacceptable overlap. See BP-19961015AB. Birach never filed a
license modification application to implement the changes, however,
and its construction permit expired on December 21, 2000. Janu-
ary 4, 1997 Letter Decision from Linda Blair, Chief, Audio Ser-
vices Division, Mass Media Bureau 1 n.2 .
On January 9, 2001 Birach filed a new WWCS modification
application to eliminate unacceptable overlap with the facilities
proposed in the Damascus Application, apparently curing the defect
that led to the dismissal of the Damascus Application. See July 18,
2001 Letter Decision at 2. Subsequently, the Mass Media Bureau
granted Birach's petition for reconsideration and reinstated the
Damascus Application based on Birach's amendment that made the
Damascus Application and a new WWCS Application contingent
applications pursuant to 47 C.F.R. s 73.3517(c) (allowing AM licen-
see to file contingent modification applications if granting contin-
gent applications "will reduce interference to one or more AM
stations or will otherwise increase the area of interference-free
service"). New World then petitioned for reconsideration of the
Mass Media Bureau's reinstatement of the Damascus Application,
asserting that it improperly relied on the presumed validity of
letter decision granted Birach's Renewal Application, stating
that "because New World's allegations in its Informal Objec-
tion ... relate only to the station's silent status, ... we grant
the pending license renewal application in light of
WDMV(AM)'s resumption of broadcast operations." Id.4
On February 18, 1997, New World petitioned for reconsid-
eration of the January 14, 1997 letter decision granting
Birach's Renewal Application, reasserting the arguments
made in its informal objection. The Audio Services Division,
by letter, denied New World's petition for reconsideration
and request for a hearing on November 20, 1997. November
20, 1997 Letter Decision from Linda Blair, Chief, Audio
Services Division, Mass Media Bureau. New World then
petitioned for review by the Commission on November 22,
1997. Birach opposed New World's petition. On February
28, 2001 the FCC denied New World's petition. See In re
__________
Birach's new WWCS Application, which New World claims was
defective because it attempted to revive a construction permit
automatically forfeited under the Commission's regulations. See
August 23, 2001 New World Petition for Reconsideration of Rein-
statement of Damascus Application at 4 p 6 & n.5 (citing 47 C.F.R.
s 73.3598(e)). New World also claimed that reinstatement was
premature because "the Division also needs to address a number of
other issues related to the [Damascus] Application," (e.g., New
World's petition to dismiss or deny). Id. at 4-5 p 7. A separate
Audio Services Division letter ruling related to a modification
application for Station WWTL(AM) filed by Birach's sister compa-
ny, Elijah Broadcasting Corporation, also addressed some Damas-
cus Application issues. See July 18, 2001 Letter Ruling from Peter
H. Doyle, Chief, Audio Services Division, to Elijah Broadcasting,
et al. That letter ruling is subject to a petition for reconsideration
filed by New World on August 22, 2001. As of December 17, 2001
reinstatement of the Damascus Application remained pending, ap-
parently awaiting resolution of the issues raised in New World's
petition for reconsideration.
4 The letter decision also noted the Commission's policy of assis-
tance to those stations facing the statutory deadline. See January
14, 1997 Letter Decision from Linda Blair, Chief, Audio Services
Division, Mass Media Bureau at 3-4.
Application of Birach Broadcasting Corporation for Renewal
of License of Station WDMV(AM), Pocomoke City, Mary-
land, 16 FCC Rcd 5015 (2001) (Order). The FCC concluded
that New World's charge that Birach had made misrepresen-
tations in connection with its filing of the Assignment and
Brinklow Applications, which charge was first raised by New
World eighteen months after both applications had become
final, was untimely. Id. at p 8. The FCC further concluded
that New World's argument was based on the erroneous view
that Birach was required to make efforts to resume broad-
casting at Pocomoke City while at the same time seeking to
relocate to Brinklow and then to Damascus. Id. Regarding
any subsequent Birach misrepresentation involving Birach's
operation of the station at Pocomoke City, the FCC again
found no merit in New World's allegations. Id. In light of
its longstanding policy to encourage a silent station to resume
operations, the FCC affirmed the grant of Birach's Renewal
Application. Id. at p 11. In so concluding, it also noted that
Birach had never been warned that keeping the station silent
could jeopardize any renewal application. Id.
New World filed a timely notice of appeal on March 7, 2001.
Birach subsequently intervened in support of the Commis-
sion. New World contends the FCC decision to grant the
Renewal Application was arbitrary and capricious because
Birach failed to broadcast any programming for more than
thirty-one months. For the same reason, New World con-
tends the FCC's order contravenes the public interest. Fi-
nally, New World argues that the FCC's failure to examine
adequately whether Birach made misrepresentations coinci-
dent with its Assignment and Brinklow Applications left
unresolved questions of fact about Birach's qualifications to
remain a licensee. The FCC first challenges New World's
standing to seek review of Birach's Renewal Application.
Because we agree that New World lacks standing, we do not
reach its arguments on the merits.
II.
The FCC challenges New World's standing, asserting New
World is not injured by the grant of Birach's Renewal Appli-
cation for the Pocomoke City license. Section 402(b) of the
Federal Communications Act, 47 U.S.C. ss 151 et seq. (1982)
(Act), provides that "any ... person who is aggrieved or
whose interests are adversely affected by any order of the
Commission granting or denying any application" may seek
judicial review thereof. 47 U.S.C. s 402(b)(6). A party is
"aggrieved" under the statute if it satisfies both the constitu-
tional and prudential requirements of standing. See Orange
Park Florida T.V., Inc. v. FCC, 811 F.2d 663, 670 (D.C. Cir.
1987); see also City of Orrville v. FERC, 147 F.3d 979, 985
(D.C. Cir. 1998) (citing Louisiana Energy & Power Auth. v.
FERC, 141 F.3d 364, 366 (D.C. Cir. 1998) (interpreting "ag-
grieved" party language in Federal Power Act, 16 U.S.C.
s 825)).5
To establish Article III standing, a party must allege (1) an
injury-in-fact that is (2) "fairly traceable" to the defendant's
conduct and (3) likely to be redressed by a favorable judicial
decision. Jersey Shore Broadcasting Corp. v. FCC, 37 F.3d
1531, 1535 (D.C. Cir. 1994) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). To establish "injury-in-
fact," the plaintiff must show "an invasion of a legally protect-
ed interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical." Sun-
Com Mobile & Data Inc. v. FCC, 87 F.3d 1386, 1388 (D.C.
Cir. 1996) (citations omitted). The burden is on the party
seeking judicial review "clearly to allege facts demonstrating
that he is a proper party to invoke judicial resolution of the
dispute and the exercise of the court's powers." SunCom
Mobile & Data Inc., 87 F.3d at 1388 (quoting Warth v.
Seldin, 422 U.S. 490, 518 (1975)). Moreover, "when the
[party] is not himself the object of the government action or
inaction he challenges, standing is not precluded, but it is
__________
5 Despite the FCC's claim to the contrary, New World's acknowl-
edgment at the agency level that it lacked "the required standing to
maintain a petition to deny" Birach's Renewal Application does not
decide New World's Article III standing. Nor is New World's
participation in the agency proceedings sufficient by itself to sustain
Article III standing. See Fund Democracy v. SEC, 278 F.3d 21, 27
(D.C. Cir. 2002).
ordinarily 'substantially more difficult' to establish." Lujan,
504 U.S. at 562 (citations omitted).
New World claims to be "aggrieved" by the FCC's grant of
Birach's Renewal Application for Pocomoke City because
renewal allows Birach to keep its license, moving one step
closer to competing with, and therefore economically injuring,
WUST, New World's Washington, D.C. station. New World's
claim is not without support; the United States Supreme
Court, in the Camp triad, upheld "competitor standing" even
though the economic injury was latent. See Ass'n of Data
Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970)
(sellers of data processing services had standing to test ruling
allowing national banks to sell data processing services be-
cause competition "might entail some future loss of profits" in
that respondent bank was already preparing to perform such
services for two of plaintiffs' clients); Arnold Tours, Inc. v.
Camp, 400 U.S. 45, 45-46 (1970) (travel agents had "competi-
tor standing" to challenge ruling allowing national banks to
provide travel services); Investment Co. Inst. v. Camp, 401
U.S. 617, 620-21 (1971) (investment companies had "competi-
tor standing" to test regulatory ruling authorizing national
banks to operate collective investment funds). Moreover, the
Supreme Court held long ago that a competing broadcast
station has "aggrieved" party standing under section 402(b) of
the Act to challenge the grant of a license to another "on the
ground that the resulting competition may work economic
injury to him." FCC v. Sanders Brothers Radio Station, 309
U.S. 475, 477 (1940). Nonetheless, the Camp cases and
Sanders Brothers are premised on the petitioner's status as a
direct and current competitor whose bottom line may be
adversely affected by the challenged government action.
In Sanders Brothers, the Court reviewed the FCC's deci-
sion to grant, in a consolidated hearing, two applicants (Sand-
ers Brothers and Telegraph Herald) separate licenses to
broadcast from the same city, Dubuque, Iowa. Sanders
Brothers sought to relocate its transmitter and studios to
Dubuque, Iowa after having for some years held a broadcast
license for a station in East Dubuque, Illinois, located across
the Mississippi River from Dubuque, Iowa. The Telegraph
Herald, a newspaper published in Dubuque, Iowa, was apply-
ing for a construction permit to erect a broadcasting station
in that city. While it found that economic injury to an
existing station was not "a separate and independent ele-
ment" that the Commission was required to consider in
determining whether to grant a license, the Court nonetheless
concluded that Sanders Brothers, as an existing station "like-
ly to be financially injured by issuance of the license," had
standing to challenge the FCC's finding that the "public
interest, convenience, and necessity" would be served by
granting the Telegraph Herald application. Sanders Broth-
ers, 309 U.S. at 476-77. In particular, Sanders Brothers
alleged that there existed insufficient advertising revenue,
talent and need for an additional station in Dubuque. The
Sanders Brothers Court found standing in the circumstance
of two stations competing for the right to broadcast in one
city. In contrast, New World does not, and cannot, allege
that granting Birach's Renewal Application for Pocomoke
City will, standing alone, "financially injure" New World's
position in the Washington, D.C. marketplace. The FCC's
decision to grant Birach's Renewal Application merely allows
Birach to retain its Pocomoke City license. Instead, New
World's "competitive injury" will occur, if at all, only if Birach
subsequently seeks and secures the relocation of its Poco-
moke City broadcast license to the Washington, D.C. pro-
gramming area.
In Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d
1462, 1465 (D.C. Cir. 1989), Mount Wilson, an FM station
licensee, challenged the FCC's decision to allot a new FM
channel on a nearby frequency, claiming that the mere allot-
ment made the possibility of future competition more likely
and thereby adversely affected the current market value of
its station. Id. at 1463. In establishing a new FM radio
station, the FCC first allots the channel or frequency to a
particular community and then considers applications for a
license on that channel. Id. at 1465-67. In Mount Wilson,
we found "doubtful" whether the mere allotment, without the
issuance of a license, could damage Mount Wilson's "concrete,
economic interest" sufficiently to confer standing. Id. at
1465.6 Similarly here, granting Birach's Renewal Application
by itself does not adequately harm New World to establish
standing. In its Reply Brief, New World attempts to distin-
guish Mount Wilson by attaching great significance to Mount
Wilson's "two bites at the same apple" language,7 pointing
out that New World, unlike Mount Wilson, will not get two
bites because it cannot raise "programming issues" in any
subsequent Damascus Application/license transfer proceed-
ing.8 This distinction, if accurate, nonetheless does not give
New World Article III standing. The "injury-in-fact" re-
quirement "serves to distinguish a person with a direct stake
in the outcome of a litigation--even though small--from a
person with a mere interest in the problem." United States
v. Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 690 n.14 (1973). New World's inter-
est in raising "programming issues" does not give it a direct
enough stake in the outcome of Birach's Renewal Application
to establish its standing here.
Pointing to Birach's past attempts to relocate WDMV to
the Washington D.C. area, New World asserts that the FCC's
__________
6 The court ultimately dismissed Mount Wilson's appeal as unripe.
See Mount Wilson, 884 F.2d at 1467.
7 In its ripeness discussion, the court noted that no prior case had
held that "allotment of a channel alone results in sufficient economic
injury to existing license holders to make an appeal ripe." Mount
Wilson, 884 F.2d at 1467. The court found that "[a]ll institutional
interests recognized in the decisions of this and other courts
militate against immediate review here" because "[e]very issue
raised by petitioners now can be raised, together with all relevant
Step 2 issues, in a single appeal after the Commission has ruled on
the pending license applications." Id. While the "two bites at the
same apple" ripeness issue may not be present here, the court's
observation that "[t]his or any appeal from a channel allotment
decision may be made unnecessary by future agency action" fits
here as well because Birach may never succeed in relocating
WDMV to the Washington, D.C. area.
8 New World cites no FCC regulation that would prohibit its
raising Birach's failure to broadcast in a subsequent license transfer
proceeding.
decision "is tantamount to renewal of license for a radio
station competing in the D.C. market." While there is sup-
port in our court's caselaw for the assertion that a party
suffers cognizable injury under Article III when an agency
"lift[s] regulatory restrictions on their competitors or other-
wise allow[s] increased competition," Louisiana Energy and
Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)
(citations omitted), this description does not fit the FCC's
decision here. We read this holding to apply the "competitor
standing" doctrine to an agency action that itself imposes a
competitive injury, i.e., that provides benefits to an existing
competitor or expands the number of entrants in the petition-
er's market, not an agency action that is, at most, the first
step in the direction of future competition. The difference is
critical because New World will have an opportunity to
challenge any FCC decision that directly affects it as a
competitor. See, e.g., February 18, 1997 New World Petition
to Dismiss and Deny Damascus Application. While the court
is aware of Birach's apparent desire to compete in the
Washington, D.C. market, New World's "chain of events"
injury is too remote to confer standing. We cannot say, as
we did in Orange Park, that New World has specified a
"concrete, economic interest that has been perceptibly dam-
aged by the Commission's award." Orange Park, 811 F.2d at
673 (emphasis added); see also Associated Gas Distribs. v.
FERC, 899 F.2d 1250, 1259 (D.C. Cir. 1990) (competitor had
standing because "the challenged action authorized allegedly
illegal transactions that have the clear and immediate poten-
tial to compete with petitioners' own sales" (emphasis add-
ed)); National Treasury Employees Union v. United States,
101 F.3d 1423, 1427 (D.C. Cir. 1996) (no standing based on
injury not "certainly impending"); Northwest Airlines, Inc. v.
FAA, 795 F.2d 195, 201 (D.C. Cir. 1986) (that party can
"imagine circumstances in which it could be affected by the
agency's action" insufficient for standing). In addition, New
World's "chain of events" argument depends on the indepen-
dent actions of third parties, distinguishing its case from the
"garden variety competitor standing cases" which require a
court to simply acknowledge a chain of causation "firmly
rooted in the basic law of economics." United Transp. Union
v. ICC, 891 F.2d 908, 913 (D.C. Cir. 1989). Moreover, Birach
has now purchased Five Star's Pocomoke City facilities in
order to broadcast from that location. Finally, New World's
"tantamount" contention assumes that Birach, which has
failed in past efforts to relocate the license, will now persuade
the FCC to reverse field.
For the foregoing reasons, New World's appeal is
Dismissed.
Randolph, Circuit Judge, dissenting: Because the FCC has
not yet granted the latest application by Birach Broadcasting
Corporation (the intervenor in this case) to relocate its station
into the Washington, D.C. radio market, the majority holds
that New World Radio (the petitioner) does not have standing
to challenge the FCC's renewal of the very broadcast license
Birach seeks to relocate. Economic competitors, the majority
holds, have only suffered a constitutional injury-in-fact where
the petitioner is "a direct and current competitor whose
bottom line may be adversely affected by the challenged
government action." Maj. op. at 9. The license renewal
"standing alone" is not enough. Maj. op. at 10.
I respectfully disagree. A party need not wait until after
an allegedly illegal agency action causes injury to bring suit.
The test for constitutional standing is less severe: a plaintiff's
injury needs to be "actual or imminent, not conjectural or
hypothetical." Bennett v. Spear, 520 U.S. 154, 167 (1997).
For almost ten years--its entire term of ownership--Birach
has sought to move WDMV into the D.C. broadcast market.
The FCC approved the company's first application to move,
and Birach is currently attempting to resolve the FCC's
technical objections to its second request. WDMV did not
broadcast for almost four years, further proof that Birach
sought the WDMV license so it could make money in the
Washington, D.C. market, rather than in the unprofitable
Pocomoke City, Maryland, market. Any competitive injury is
surely "imminent."
I would affirm the FCC. In renewing the license for
WDMV, the FCC had to decide whether the station had
served "the public interest, convenience, and necessity." 47
U.S.C. s 309(k). We give "substantial judicial deference" to
the FCC's judgment in this regard. FCC v. WNCN Listen-
ers Guild, 450 U.S. 582, 596 (1981). On the "unique facts of
this case," including the FCC's repeated assurances that the
station could remain silent as it sought to relocate, the FCC
renewed WDMV's license despite its failure to broadcast for
several years. In re Birach Broad. Corp., No. BR-
950608YB, at 6 (Feb. 22, 2001). New World Radio's argu-
ments have not convinced me this action was beyond the
FCC's power, so I would affirm the agency's decision on the
merits.