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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2003 Decided June 10, 2003
No. 02-1020
RAINBOW/PUSH COALITION,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
SINCLAIR BROADCAST GROUP, INC., ET AL.,
INTERVENORS
Appeal of an Order of the
Federal Communications Commission
David P. Huitema argued the cause for appellant. With
him on the briefs were Michael S. Giannotto and David E.
Honig.
C. Grey Pash, Jr., Counsel, Federal Communications Com-
mission, argued the cause for appellee. With him on the brief
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
were Jane E. Mago, General Counsel, and Daniel M. Arm-
strong, Associate General Counsel.
Kathryn R. Schmeltzer argued the cause for intervenor.
With her on the brief were Barry H. Gottfried and Howard
A. Topel.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Rainbow/PUSH Coalition petitioned
the Federal Communications Commission to deny certain
applications to transfer control of television broadcasting
licenses. The Commission, having determined that some of
Rainbow’s objections relating to the licensees’ prior dealings
had merit, imposed forfeitures upon the licensees but never-
theless granted their applications without holding a hearing.
We hold that Rainbow lacks standing to appeal that decision.
I. Background
The Communications Act of 1934 prohibits the assignment
or transfer of a broadcast license without the approval of the
Commission. 47 U.S.C. § 310(d). In 1998 Sullivan Broadcast
Holdings, Inc. applied for approval to sell five television
stations to Sinclair and to sell five others, including KOKH–
TV in Oklahoma City, Oklahoma, to Glencairn. See Edwin L.
Edwards, Sr., 16 F.C.C. Rcd. 22236, ¶ 2 & n.1 (2001). As the
consideration for its acquisition Glencairn agreed to assume
certain of Sullivan’s debts. Id. ¶ 8.
At the time these applications were filed the Commission’s
so-called ‘‘duopoly’’ rule prohibited the common control of
more than one television license in a market. In August
1999, while the applications were pending, the Commission
revised its broadcast multiple ownership rules, loosening the
‘‘duopoly’’ rule to ‘‘allow common ownership of two stations in
the same [market] if TTT eight independently owned, full-
power and operational television stations TTT will remain
post-merger.’’ Review of the Comm’n’s Regulations Govern-
ing Television Broad., 14 F.C.C. Rcd. 12903, ¶ 8 (1999) (‘‘Re-
3
vised Television Rules’’), reconsid. denied in relevant part, 16
F.C.C. Rcd. 1067, ¶ ¶ 7–24 (2000), remanded in relevant part
sub nom. Sinclair Broad. Group v. FCC, 284 F.3d 148, 158–65
(D.C. Cir.), further rulemaking proposed at 2002 Biennial
Regulatory Review, 17 F.C.C. Rcd. 18503, ¶ ¶ 18–19, 76–77
(2002).
In November 1999 Sullivan, Sinclair, and Glencairn sub-
stantially restructured their proposed transaction and filed
revised applications with the Commission. First, Sullivan
applied to transfer KOKH to Sinclair rather than to Glenc-
airn. Second, Glencairn applied to transfer to Sinclair five
other television stations, including KRRT–TV in Kerrville,
Texas, near San Antonio. Edwards ¶ ¶ 3–4. In consideration
Glencairn was to receive approximately $8 million in Sinclair
stock. Id. ¶ 12. Third, Glencairn sought Commission ap-
proval to transfer control of the corporation from Edwin L.
Edwards to Carolyn Smith. Id. ¶ 3.
Claiming an interest in the matter because one of its
members lived in Oklahoma City and another in San Antonio,
Rainbow filed petitions to deny both the original and the
revised applications. Rainbow alleged that Sinclair was in de
facto control of Glencairn – and therefore already controlled
Glencairn’s stations – in violation of the approval requirement
of § 310(d). Based upon this alleged fact, Rainbow objected
to the original deal on the ground that it would violate the
pre–1999 duopoly rule because both Sinclair and Glencairn
would own stations in Oklahoma City. That objection ap-
pears to have been mooted by the revision of the duopoly
rule. Rainbow also alleged that Glencairn had overstated the
amount of debt it intended to assume as consideration for the
purchase of stations from Sullivan. Id. ¶ ¶ 8–9. Rainbow
asked the Commission first to deny the applications outright
or, alternatively, to hold a hearing, which the Commission
must do if there is ‘‘a substantial and material question of
fact’’ as to whether granting an application would be in the
public interest. 47 U.S.C. § 309(d)(2).
The Commission determined that for purposes of the trans-
actions at issue Sinclair was, as alleged, in de facto control of
4
Glencairn, and therefore in violation of § 310(d). Edwards,
16 F.C.C. Rcd. 22236, ¶ ¶ 23–28. For this it fined Sinclair and
Glencairn $40,000 each. Id. ¶ 29. The agency nonetheless
granted their applications without a hearing, conditioned upon
certain changes, not relevant here, in the agreements. Not-
ing that the parties had cooperated in its investigation and
‘‘manifested no palpable intent to deceive the Commission,’’
the Commission found nothing in the record to suggest that
the broadcasters’ violation ‘‘raise[d] questions about the char-
acter qualification of these parties to be licensees.’’ Id. ¶ 21.
Although they had been parties to an unauthorized transfer
of control, whereby Sinclair assumed de facto control of
Glencairn, their ‘‘actions appear[ed] to reflect reliance on past
[Commission] staff decisions involving similar facts, and thus
appear[ed] to be miscalculations TTT as to what was permissi-
ble.’’ Id. Moreover, Edwards’ impending departure from
Glencairn would ‘‘mitigat[e] the potential for future lapses.’’
Id. With regard to the alleged financial misrepresentation,
which the Commission characterized as a mere ‘‘misstate-
ment’’ and a ‘‘mistake,’’ the Commission concluded there was
no substantial and material question of fact and therefore no
need for a hearing. Id. ¶ 28.
II. Analysis
On appeal Rainbow claims the Commission’s failure either
to deny the licensees’ applications or to hold a hearing on its
allegations was arbitrary and capricious. We cannot reach
the merits of Rainbow’s claim, however, because, as the
Commission argues, the appellant lacks standing to appeal,
wherefore we lack jurisdiction over its case. Sierra Club v.
EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
An association, such as Rainbow, has standing to sue under
Article III of the Constitution of the United States only if (1)
at least one of its members would have standing to sue in his
own right; (2) the interest it seeks to protect is germane to
its purpose; and (3) neither the claim asserted nor the relief
requested requires the member to participate in the lawsuit.
Hunt v. Washington State Apple Adver. Comm’n, 432 U.S.
5
333, 343 (1977). Because Rainbow has not demonstrated that
it meets the first requirement, we need not consider the
others.
The ‘‘irreducible constitutional minimum of standing con-
tains three elements’’: (1) injury-in-fact, (2) causation, and (3)
redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992). The injury must be both ‘‘concrete and partic-
ularized’’ and ‘‘actual or imminent.’’ Id. at 560. The burden
on a party challenging an administrative decision in the court
of appeals is ‘‘to show a substantial probability that it has
been injured, that the defendant caused its injury, and that
the court could redress that injury.’’ Sierra Club, 292 F.3d at
899. This burden is ‘‘the same as that of a plaintiff moving
for summary judgment in the district court,’’ in that the party
must produce actual evidence, not mere allegations, of facts
that support its standing. Id.
Rainbow seems to argue that our cases establish a per se
rule that a person has standing to protect the ‘‘public inter-
est’’ by challenging any decision of the Commission regulating
(or, as in this case, declining to regulate) a broadcaster in
whose listening or viewing area the person lives. Thus, we
are told (in the appellant’s reply brief) with respect to the
first two elements of standing, ‘‘When the FCC permits the
transfer of a license to a party that will not operate in the
public interest, the FCC causes injury to the station’s audi-
ence sufficient to create standing.’’ If there were no more to
standing than that, however, then the ‘‘irreducible constitu-
tional minimum’’ would be irreducible only because it could
not be any smaller and still be said to exist.
As authority for automatic audience standing, Rainbow
relies upon Office of Communication of United Church of
Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) (UCC). The
appellants there had petitioned to intervene in opposition to a
broadcaster’s application to renew its license, alleging that its
station ‘‘did not give a fair and balanced presentation of
controversial issues, especially those concerning Negroes.’’
Id. at 998. In deciding that at least some of the appellants
6
had standing to appear before the Commission,* we rejected
the Commission’s arguments that ‘‘the only types of effects
sufficient to support standing are economic injury and electri-
cal interference,’’ and that ‘‘members of the listening public
do not suffer any injury peculiar to them’’ and therefore lack
standing. Id. at 1000. Rather, we recognized that ‘‘standing
is accorded to persons not for the protection of their private
interest but only to vindicate the public interest.’’ Id. at
1001. In light of the Commission’s acknowledgment that it
‘‘cannot begin to monitor or oversee the performance of every
one of thousands of licensees,’’ id. at 1003, we found ‘‘no
reason to exclude those with such an obvious and acute
concern as the listening audience.’’ Id. at 1002. We there-
fore remanded the matter to the Commission with instruc-
tions to ‘‘allow standing to one or more of [the appellants] as
responsible representatives’’ of the audience. Id. at 1006.
Thus in UCC did we establish that audience members may
have standing to challenge a decision of the Commission
because they may bring to the Commission’s attention mat-
ters relating to a broadcaster’s programming. We did not,
however, purport to apply a more relaxed standard to audi-
ence members than to other litigants seeking to demonstrate
their standing under Article III. It was perfectly clear in
* The precise issue before the court in UCC was whether certain
members of the audience had standing to appear before the Com-
mission under § 309(d) of the Communications Act. The court
assumed, however, that ‘‘the same standards are applicable to
determining standing before the Commission and standing to appeal
a Commission order to this court,’’ and therefore ‘‘used the cases
dealing with standing in the two tribunals interchangeably.’’ 359
F.2d at 1000 n.8. We assume, for purposes of this appeal, that the
court’s views on standing were applicable not only to standing
under the Act but also to constitutional standing. But see Enviro-
care, Inc. v. NRC, 194 F.3d 72, 74 (D.C. Cir. 1999) (‘‘Agencies, of
course, are not constrained by Article III of the Constitution; nor
are they governed by judicially-created standing doctrines restrict-
ing access to the federal courts. The criteria for establishing
‘administrative standing’ therefore may permissibly be less demand-
ing than the criteria for ‘judicial standing’ ’’).
7
UCC that the appellants would be injured, and substantially
so, by the Commission’s grant of the renewal license. The
appellants had complained that ‘‘Negro individuals and insti-
tutions are given very much less television exposure than
others are given and that programs are generally disrespect-
ful toward Negroes.’’ Id. at 998 n.4. This allegation was
‘‘particularized and accompanied by a detailed presentation of
the results of Appellants’ monitoring of a typical week’s
programming.’’ Id. As the Commission’s order noted, simi-
lar complaints had been made to the broadcaster for ten
years, id. at 997–98, indicating that if the Commission re-
newed the broadcaster’s license, the licensee could be expect-
ed to continue programming in the same vein. In short, the
appellants’ proffer demonstrated that the Commission’s re-
newal of the license would adversely affect them.
Rainbow has not made a comparable showing; indeed, it
has not even tried to do so. In its initial brief Rainbow stated
broadly that it ‘‘is an organization committed to furthering
social, racial, and economic justice’’ and that it ‘‘seeks to
ensure that professional opportunities in broadcasting expand
for minorities and that communities have access to diverse
broadcasting sources.’’ Rainbow also stated that ‘‘[s]everal’’
of its members ‘‘live and watch television in the markets that
are at issue in this appeal.’’ Although Rainbow did not so
indicate in its brief, cf. Sierra Club, 292 F.3d at 900–01 (‘‘the
petitioner may carry its burden of production by citing any
record evidence relevant to its claim of standing’’), that claim
is apparently supported to the extent of two declarations in
the record compiled before the agency. In each the declarant
alleges she is a Rainbow member and a ‘‘regular viewer’’ of
either KOKH or KRRT. Each declarant also alleges that if
the relevant application were granted, then ‘‘members of
Rainbow/PUSH, including myself, would be deprived of job
opportunities and program service in the public interest.’’
These statements do not establish the declarants’ standing.
They merely identify rather than document two potential
types of injury: loss of ‘‘job opportunities’’ and deprivation of
‘‘program service in the public interest.’’ Rainbow’s briefs
say nothing at all about job opportunities, and therefore
8
neither shall we. Rainbow’s real claim of injury goes to the
alleged deprivation of ‘‘program service in the public inter-
est,’’ but that claim is not sufficiently ‘‘concrete and particu-
larized’’ to pass constitutional muster.
Rainbow is challenging the Commission’s decision not to
hold a hearing in order to determine (1) whether Sinclair’s de
facto control of Glencairn was so indicative of untrustworthi-
ness that a harsher sanction than a fine was required, and (2)
whether Edwards intentionally misrepresented facts to the
Commission. Ultimately it seeks to have the Commission
strip both Sinclair and Glencairn of all their licenses (the
great majority of which are for communities where, so far as
the record reveals, Rainbow has no members). It is unclear,
however, just how the Commission’s failure to do that causes
harm to the appellants, that is, deprives its member-viewers
even in Oklahoma City or San Antonio of ‘‘program service in
the public interest.’’ Indeed, Rainbow does not attempt to
show that either Sinclair’s illicit control of Glencairn’s stations
before the rule was changed in 1999 or Glencairn’s alleged
misrepresentation concerning the debt it would assume in the
originally contemplated transaction had a direct effect upon
the programming available to its member-viewers.
Instead Rainbow makes only broad and conclusory asser-
tions – and even these come only in its reply brief – to the
effect that ‘‘illicit control detracts from the public interest in
diverse media ownership and access to as broad a range of
programming content and viewpoints as possible’’; ‘‘Sinclair’s
control of Glencairn has lowered the number and diversity of
independent broadcasters to which Rainbow/PUSH members
have access in each of the markets where both Sinclair and
Glencairn have held licenses’’; and ‘‘Sinclair’s acquisition of
the licenses would not serve the public interest because TTT
Sinclair has demonstrated a propensity for violating agency
rules.’’ These statements do elaborate upon Rainbow’s theo-
ries of injury but they do nothing to support them.
We understand Rainbow to present two theories. First,
increased concentration in the ownership of broadcast sta-
tions results in fewer voices being heard and therefore in
9
decreased diversity in content; ergo, the public interest auto-
matically suffers when two formerly independent stations
come under common ownership. Second, the public interest
suffers if a rule-breaker – especially a deceitful rule-breaker –
is permitted to hold a license, because the Commission relies
heavily upon a licensee’s candor and honesty to administer
the Communications Act in the public interest.
The first theory has an intuitive appeal, and indeed some-
thing very like it underpins the Commission’s duopoly rule.
See Revised Television Rules, 14 F.C.C. Rcd. 12903, ¶ 7.
While it is reasonable for the Commission, however, to as-
sume that a greater concentration of ownership may decrease
the diversity of voices on the airwaves, and to erect a
prophylactic regulation in order to avert that possibility, see
FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775 (1978)
(upholding Commission’s regulation barring co-located news-
paper-broadcast combinations based upon this reasoning), it
does not follow that common control of two licenses in the
same market necessarily or even probably affects their pro-
gramming. Absent a showing that Sinclair’s assumption of
control of KOKH or KRRT resulted in some actual effect
upon the programming of those or of the commonly controlled
stations in their markets, Rainbow’s fears of decreased diver-
sity remain purely speculative.
Similarly, Rainbow’s second theory suggests only that the
Commission would be wise to enforce aggressively the re-
quirement of candor in its proceedings, as a deterrent to
potential violators. In that regard the Supreme Court has
stated that the Commission may refuse to renew a license
because of the licensee’s misrepresentations, FCC v. WOKO,
Inc., 329 U.S. 223 (1946), and we have stated that the
Commission ‘‘would be derelict if it did not hold broadcasters
to high standards of punctilio, given the special status of
licensees as trustees of a scarce public resource.’’ Leflore
Broad. Co. v. FCC, 636 F.2d 454, 461 (1980). It does not
follow, however, that the audience is harmed whenever the
Commission punishes a particular misrepresentation with less
than the ultimate sanction. At any rate, Rainbow’s bare
allegations, unsupported by any evidence, obviously cannot
10
establish an ‘‘actual or imminent’’ effect upon programming
sufficient to support a motion for summary judgment. See
Sierra Club, 292 F.3d at 899.
Rainbow claims our decision in Llerandi v. FCC, 863 F.2d
79, 85 (1988), requires a different result. There we stated
that the appellant’s affidavit, asserting that he lived in the
relevant market, ‘‘[of its own force] establishe[d] the requisite
injury necessary to satisfy the strictures of Article III’’
because ‘‘[l]isteners are, by definition, injured when licenses
are issued in contravention of the policies undergirding the
duopoly rule.’’ Llerandi is of no help to the appellant,
however.
Llerandi was a case in which the petitioners were ‘‘in-
vok[ing] and press[ing] the duopoly rule’’ itself, id. at 85, and
thus seeking to take advantage of a prophylaxis the Commis-
sion had designed to protect listeners from the possibility that
programming would be degraded by the creation of a duopo-
ly. In light of the Commission’s 1999 revision of the duopoly
rule, petitioners cannot and do not allege that granting the
applications at issue here would actually violate the current
rule. Rather they make only the more general, and vague,
claim that Sinclair’s acquisition of the licenses ‘‘would reduce
the diversity’’ of programming in San Antonio and Oklahoma
City.
But the Commission’s revision of its rule deprives this
claim of any support that it might once have derived from the
agency’s expertise, and Rainbow offers nothing acceptable in
its stead. In Sierra Club, we held that a petitioner cannot
‘‘rest on TTT mere allegations, but must set forth by affidavit
or other evidence specific facts’’ in support of its claim of
injury. 292 F.3d at 899. Rainbow, however, has submitted
nothing more than identical declarations from two of its
members, asserting that each ‘‘would be seriously aggrieved’’
by a grant of the applications because ‘‘as a consequence TTT
members of Rainbow/PUSH, including myself, would be de-
prived of TTT program service in the public interest.’’ Those
declarations are insufficient to satisfy the requirements of
Sierra Club. They do not state why the declarants believe
11
that a grant of the applications would deprive them of ‘‘pro-
gram service in the public interest.’’ Indeed, they do not
offer evidence that programming after a grant would be any
different than it was before, or even ‘‘plausible predictions
about [the] likely programming decisions’’ of the applicants.
Huddy v. FCC, 236 F.3d 720, 722 (D.C. Cir. 2001).
Nor do the other cases Rainbow invokes support its stand-
ing here. In Hale v. FCC, 425 F.2d 556 (1970), we dismissed
an intervenor’s challenge to the appellants’ standing without
reporting what the appellants had alleged and with only a
brief reference to UCC. Id. at 558 n.2. As we have said,
however, nothing in UCC suggests or could be taken to mean
that Rainbow can be excused from the ordinary requirements
for demonstrating its standing under Article III. The same
is true of our one-sentence rejection of the challenge to the
standing of the appellant in Joseph v. FCC, 404 F.2d 207, 211
(1968) (‘‘The allegations in the motion [for reconsideration]
before the Commission demonstrated at least prima facie
standing’’), which sentence appears to be inconsistent with
the requirement of actual evidence explicated in Sierra Club.
In short, Rainbow has failed to produce evidence that it (or
one of its members) has suffered the injury-in-fact required
for standing. We reject its argument that a member of a
station’s audience can establish her standing merely by alleg-
ing that if the Commission were to grant a particular license
application then she ‘‘would be deprived of TTT program
service in the public interest.’’
III. Conclusion
For the foregoing reasons the appeal is
Dismissed.