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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2009 Decided June 5, 2009
No. 08-1117
NATIONAL ASSOCIATION OF BROADCASTERS,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS
PROMETHEUS RADIO PROJECT,
INTERVENOR
On Petition for Review of an Order
of the Federal Communications Commission
Jack N. Goodman argued the cause for petitioner. With him
on the briefs were Samir C. Jain, Dileep S. Srihari, Marsha J.
MacBride, Jane E. Mago, Jerianne Timmerman, and Ann West
Bobeck.
2
C. Grey Pash, Jr., Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were Matthew L. Berry, General Counsel, and Jacob M.
Lewis and Daniel M. Armstrong, Associate General Counsel.
Nickolai G. Levin, Robert B. Nicholson, and Robert J. Wiggers,
Attorneys, entered appearances.
Andrew J. Schwartzman and Parul P. Desai were on the
brief for intervenor in support of respondent.
Before: ROGERS, GARLAND and BROWN, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: As part of its continuing effort to
promote low power FM (“LPFM”) radio service, the Federal
Communications Commission in 2007 amended its LPFM rules,
including announcing standards for waivers of certain
protections against interference with full-power FM stations.
Creation of a Low Power Radio Service, Third Report and
Order and Second Further Notice of Proposed Rulemaking, 22
F.C.C. Rcd. 21,912 (Dec. 11, 2007) (“2007 Order”). In so
doing, the Commission purported not to harm the interests of
full-power FM stations or other Commission licensees. Id. at
21,913 ¶ 1. The National Association of Broadcasters (“NAB”)
petitions for review of three changes, each of which it contends
either reduced the protections afforded to full-power FM stations
against signal interference from LPFM stations or gave LPFM
stations primary status over full-power FM stations in particular
circumstances. In adopting these changes, the NAB contends,
the Commission violated the Radio Broadcasting Preservation
Act of 2000, Pub. L. No. 106-553, § 632, 114 Stat. 2762,
2762A-111 (2000) (“the Preservation Act”), and the
Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”).
We hold that the Preservation Act did not bar the Commission
3
from reducing or eliminating interference protections other than
third-adjacent channel minimum distance separation
requirements, and that the NAB’s challenges under the APA are
either unripe or unpersuasive. Accordingly, we deny the
petition in part and dismiss it in part.
I.
In January 2000, the Commission adopted rules authorizing
LPFM radio service in order to “provide opportunities for new
voices to be heard.” See Creation of Low Power Radio Service,
Report and Order, 15 F.C.C. Rcd. 2,205, 2,206 ¶ 1 (Jan. 27,
2000) (“2000 Order”). The LPFM stations were to be “operated
on a noncommercial educational basis,” id., with a maximum of
10 or 100 watts of power, compared to full-power stations that
operate with minimum power of 6,000 to 100,000 watts. To
prevent interference between LPFM stations and full-power
stations near each other on the FM dial, minimum distance
requirements were established for co-channel and first- and
second-adjacent channel LPFM stations but not for third-
adjacent channels. Id. at 2,206-07; see also 47 C.F.R. § 73.807
(2007).1 The Commission found that third-adjacent channel
LPFM stations would not cause “significant new interference to
the service of existing FM stations,” and that “any small amount
of interference that may occur in individual cases would be
outweighed by the benefits of new low power FM stations.”
2000 Order at 2,246 ¶ 104. The Commission imposed minimum
distance requirements for second-adjacent channels because it
1
Because interference is a function of both placement on the
FM radio band and geographic distance, the geographic distance
separation requirements are strictest for radio stations on the same
channel (co-channels) and progressively weaker for stations that are
one (first-adjacent), two (second-adjacent), or three (third-adjacent)
channels apart. See 47 C.F.R. § 73.207.
4
concluded “that the risk of interference from LPFM signals . . .
may be somewhat higher” than the risk from third-adjacent
channels. Id. The Commission also required any LPFM station
causing actual interference to a subsequently authorized new or
modified full-power station to modify its facilities and to cease
operations if modifications could not prevent interference. Id.
at 2,231-32; see also 47 C.F.R § 73.809. On reconsideration it
established complaint and license modification procedures
designed to expedite the resolution of problems associated with
“any unexpected, significant 3rd adjacent channel interference
problems” caused by an LPFM station. Creation of Low Power
Radio Service, Memorandum Opinion and Order on
Reconsideration, 15 F.C.C. Rcd. 19,208, 19,210 ¶ 4 (Sept. 28,
2000); see also 47 C.F.R. § 73.810.
On December 21, 2000, Congress enacted the Preservation
Act, which did three things of relevance to this appeal.
Section 632(a)(1)(A) directed the Commission to amend the
LPFM rules to “prescribe minimum distance separations for
third-adjacent channels (as well as for co-channels and first- and
second-adjacent channels)” (emphasis added). Section
632(a)(2)(A) barred the Commission from “eliminat[ing] or
reduc[ing] the minimum distance separations for third-adjacent
channels required by paragraph (1)(A)” (emphasis added). And,
§ 632(b)(1) and (b)(2) required the Commission to engage an
independent testing entity to study whether harmful interference
would result if LPFM stations were not subject to third-adjacent
channel minimum distance separation requirements, and to file
a report with Congress. The Commission amended the LPFM
rules accordingly in 2001, Creation of a Low Power Radio
Service, Second Report and Order, 16 F.C.C. Rcd. 8,026 (Apr.
2, 2001), and forwarded the independent study to Congress in
2004, with a recommendation that Congress “modify the statute
to eliminate the third-adjacent channel distance separation
requirements for LPFM stations,” FEDERAL COMMUNICATIONS
5
COMMISSION, REPORT TO THE CONGRESS ON THE LOW POWER
INTERFERENCE TESTING PROGRAM, PUB. L. NO. 106-553 (2004).
To date, Congress has not acted on that recommendation.
In December 2007, the Commission amended the LPFM
rules, pointing to “considerably” changed circumstances arising
from both “the January 2007 lifting of the freeze on the filing of
FM community of license modification proposals, and the
implementation of streamlined licensing procedures [that]
resulted in a one-time flurry of filing activity . . . .” 2007 Order
at 21,938 ¶ 63. The amendments were designed to minimize the
loss of LPFM stations and increase the number of LPFM
stations on the air without causing interference to existing full-
power service. The Commission explained that over the seven
years since it had established the LPFM service, the service had
“flourished for the most part,” but had also “encountered unique
obstacles.” Id. at 21,917 ¶ 10. Only approximately one third of
LPFM applications had been granted and although 809 stations
were operating at the time of the 2007 Order, 17 station licenses
and 95 construction permits had been cancelled due to
noncompliance with technical or procedural requirements. Id.
The NAB challenges three provisions of the amended rules,
the first two involving second-adjacent channel protections, the
third involving displacement protection for LPFM stations:
(1) The modification of the cease-operations requirement
in 47 C.F.R. § 73.809, where an LPFM station is causing
interference to a subsequently authorized new or modified
full-power FM station, to apply only to co-channels and
first-adjacent channels, not second-adjacent channels. Id.
at 21,938 ¶ 63.
(2) The interim standards for waiving minimum distance
requirements where a subsequently authorized new or
6
modified full-power FM station would be short-spaced to
the LPFM station and thus cause the LPFM station to be
displaced where an alternate, fully-spaced and rule-
compliant channel was unavailable to the LPFM station. Id.
at 21,939-40 ¶¶ 66-67.
(3) A rebuttable non-binding presumption favoring LPFM
stations deemed to be appropriate by the Commission
because “the public interest would be better served by a
waiver of the Commission Rule making LPFM stations
secondary to subsequently authorized full-[power FM]
stations and the dismissal of an ‘encroaching’ community
of license reallotment application when the threatened
LPFM station can demonstrate it has regularly provided at
least eight hours per day of locally originated
programming.” Id. at 21,940-41 ¶¶ 68-69.
The Commission invited comment on whether to codify the
second and third changes. Id. at 21,942-46.
II.
The NAB challenges the Commission’s statutory
interpretation and also raises objections under the APA. Upon
reviewing an agency’s interpretation of a statute it administers,
the court applies the familiar two-step analysis of Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837
(1984). Under step one, where a statute “has directly spoken to
the precise question at issue,” id. at 842, the court and the
agency “must give effect to the unambiguously expressed intent
of Congress,” id. at 843. Under step two, when the statute is
silent or ambiguous regarding the specific question, the court
asks “whether the agency’s answer is based on a permissible
construction of the statute.” Id. Regarding the APA challenges,
the court will reverse only if the agency’s action is arbitrary or
7
capricious or manifestly contrary to the statute. See FCC v. Fox
Television Stations, Inc., No. 07-582, slip op. at 9-12 (U.S. Apr.
28, 2009); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). We conclude that the NAB has
read into the Preservation Act words Congress did not enact and
that its efforts to avoid the plain text are unavailing, and further
that its APA challenges are unpersuasive or unripe.
A.
Section 632(a)(1)(A) of the Preservation Act requires the
Commission to “prescribe minimum distance separation for
third-adjacent channels (as well as for co-channels and first- and
second-adjacent channels).” By contrast, § 632(a)(2)(A) bars
the Commission from “eliminat[ing] or reduc[ing] the minimum
distance separations for third-adjacent channels required by
paragraph 1(A)” but makes no reference to other channels. The
cross-reference to § 632(a)(1)(A) is tied explicitly to “the
minimum distance separations for third-adjacent channels.” By
their clear text, § 632(a)(1) and (a)(2) are not opposite sides of
the same coin, requiring minimum distance separations for all
four categories and then banning elimination or reduction of
those. In § 632(a)(1)(A), Congress acknowledged the four
categories of minimum distance separations employed by the
Commission. In § 632(a)(2)(A), Congress restricted the
Commission’s authority to eliminate or reduce those separations
in only one category, third-adjacent channels. Under the general
presumption that an omission is intentional where Congress has
referred to something in one subsection but not in another,
Russello v. United States, 464 U.S. 16, 23 (1983); see also
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452-54 (2002), the
fact that § 632(a)(1)(A) mentions all four categories but
§ 632(a)(2)(A) mentions only third-adjacent channels further
indicates that § 632(a)(2)(A) restricts the Commission’s
authority only with respect to that category. The NAB’s
reliance on the discussion of superfluity in statutory
8
interpretation in Entergy Corp. v. Riverkeeper, Inc., No. 07-588,
slip op. at 8 (U.S. Apr. 1, 2009), and Corley v. United States,
No. 07-10441, slip. op. at 9-12 (U.S. Apr. 6, 2009), is misplaced.
Reading the Preservation Act in accord with its plain text does
not render § 632(a)(1)(A) superfluous because that provision
requires the Commission to establish third-adjacent channel
minimum distance separation requirements and acknowledges
that the Commission has already imposed minimum distance
requirements for the other channels. On the other hand, reading
§ 632(a)(1)(A) to prohibit the Commission from limiting
interference protections would render § 632(a)(2)(A) super-
fluous. The statute should be read in a manner that gives effect
to all of its provisions. See Hibbs v. Winn, 542 U.S. 88, 101
(2004).
The context in which Congress acted supports reading the
Preservation Act in a manner consistent with its plain text. The
NAB suggests “it would make no sense to conclude that
Congress meant to prohibit the [Commission] only from
eliminating third-adjacent protections, while leaving the
Commission free to reduce interference protections from
channels closer on the ‘dial’ that would cause even greater
interference.” Petr’s Br. at 21. However, as the Commission
points out, the “issue pressing Congress at the time” was the
absence of third-adjacent channel minimum distance separation
requirements. See Respt’s Br. at 24. Confirming that
§ 632(a)(2)(A) focused on the third-adjacent channel, Congress
directed the Commission in subsection (b) to engage an
independent testing entity to study third-adjacent channel
interference. Having prescribed a course of action for the
Commission with regard to the third-adjacent channel,
Congress’s silence in § 632(a)(2)(A) as to other channels
indicates no other restrictions were placed on the Commission’s
authority in regulating LPFM stations.
9
The NAB’s evidence that Congress had a broader purpose
is, at best, of minimal persuasive force because “‘courts have no
authority to enforce [a] principl[e] gleaned solely from
legislative history that has no statutory reference point.’”
Shannon v. United States, 512 U.S. 573, 583-84 (1994) (quoting
Int’l Bhd. of Elec. Workers, Local Union No. 474, AFL-CIO v.
NLRB, 814 F.2d 697, 712 ( D.C. Cir. 1987)) (emphasis deleted
and alterations made in Shannon). The NAB points to
statements in the House Commerce Committee Report, see H.R.
REP. NO. 106-567, at 8 (2000), and several statements by
Members on the House floor that the legislation was intended to
require the Commission to impose protections at least as strict
as were in existence on January 1, 2000. But the statutory text
is narrower. For example, the Report states that “LPFM stations
which are authorized under this section, but cause interference
to new or modified facilities of a full-power station, would be
required to modify their facilities or cease operations.” Id. No
such requirement appears in the Preservation Act, which does
not address signal interference protections other than minimum
distance separation. Likewise, the limitation referred to in
Congressman Tauzin’s statement that “the bill maintains
Congressional authority over any future changes made to the
interference protections that exist in the FM dial today,” 146
CONG. REC. 5,611 (2000), appears nowhere in the statute.
Furthermore, not only do the statements in the Committee
Report on which the NAB relies lack a “statutory reference
point,” Shannon, 512 U.S. at 584, aspects of the legislative
history support reading the statute as restricting the
Commission’s authority only with respect to third-adjacent
channels. For instance, the headings of the proposed legislation
printed in the Report read “(a) Third-Adjacent Channel
Protections Required,” and “(b) Further Evaluation of Need for
Third-Adjacent Channel Protections,” H.R. REP. NO. 106-567,
at 2, and the Report’s discussion of the need for legislation
10
emphasizes the Commission’s failure to provide for third-
adjacent channel protections, id. at 4. Not only did the House
Committee retreat from a bill that would have prevented the
Commission from authorizing LPFM at all, see H.R. 3439,
106th Cong. (1999), floor statements indicate that the bill passed
by the House was a “true compromise” and “allows for the
[Commission] to proceed with plans to implement a low-power
FM radio service to address the community needs of many
localities,” 146 CONG. REC. at 5,611 (statement of Rep. Tauzin);
see id. at 5,614 (statement of Rep. Pallone) (the compromise
“allows the [Commission] to move forward with the low-power
FM as long as it protects existing third-channel interference
protections”); id. at 5,612-13 (statement of Rep. Oxley). These
statements are consistent with the conclusion reflected in the
plain text that Congress did not intend to restrain the
Commission’s authority to respond to new circumstances
potentially threatening LPFM stations other than with respect to
third-adjacent channel minimum separation requirements.
In a further attempt to avoid the plain text, the NAB
maintains it produces absurd results. See Engine Mfrs. Ass’n v.
EPA, 88 F.3d 1075, 1088-89 (D.C. Cir. 1996). In the NAB’s
view, “Congress understood that the [Commission] would have
to peel back the outmermost layer of protections before reaching
the inner layers, and the [Act]’s protection of the outer layer thus
protected the whole.” Petr’s Br. at 23. Seemingly intuitive, this
assertion is unsupported by the statutory text. Even assuming
the logic behind relaxing requirements for third-adjacent
channels before those for first- or second-adjacent channels, the
NAB has not shown that the former must precede the latter.
Although entirely eliminating the requirements for second-
adjacent channels while retaining the requirements for third-
adjacent channels might fail the arbitrary and capricious test,
that is not what the Commission has done. Rather, the
Commission has simply announced limited circumstances in
11
which it will waive the second-adjacent requirements. Having
addressed only the minimum distance requirements for third-
adjacent channels, Congress did not implicitly restrict the
Commission’s authority with regard to the separate but related
issue of second-adjacent channel requirements.
In sum, Congress spoke directly to third-adjacent channel
minimum distance separation protections but was silent
regarding the Commission’s authority to reduce or eliminate
protections for other channels. Moreover, the modification of
the cease-operations requirement and the announcement of a
presumption favoring waiver of secondary status do not concern
minimum distance-separation requirements, and thus are not
covered by the text of the statute at all. The limited nature of
Congress’s direction is unsurprising because the Commission
had already imposed protections on the other channels. Other
than acknowledging those existing protections, Congress left
undisturbed the Commission’s authority to adopt regulations,
including ones to modify the second-adjacent channel distance
protection in Section 73.809 of its rules, to set standards for
waiving second-adjacent channel minimum distance
requirements in Section 73.807, or to set standards for
determining whether an LPFM station should be accorded
primary status over an encroaching full-power station. Because
Congress did not address the subjects that are the focus of the
NAB’s challenges, the Commission’s interpretation of the
Preservation Act as limiting its authority only with respect to
third-adjacent channel minimum distance requirements reflects
the plain text and the context in which Congress acted, and is
neither “demonstrably at odds with the intentions of its drafters,”
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir.
1998) (quoting United States v. Ron Pair Enters., 489 U.S. 235,
242 (1982)), nor “contrary to common sense,” id.
12
B.
The NAB’s challenges on APA grounds range from broad
assertions of arbitrariness to more technical objections. While
of varying force, none demonstrate, at least at this point, that the
NAB’s petition should be granted. Although the Commission
maintains the NAB’s contentions regarding the interim waiver
policies are not ripe, see Abbot Labs. v. Gardner, 387 U.S. 136,
147 (1967); Natural Res. Def. Council v. EPA, No. 07-1151
(D.C. Cir. Mar. 20, 2009); AT&T Corp. v. FCC, 349 F.3d 692,
699-700 (D.C. Cir. 2003), whether the Commission violated the
APA’s notice and comment requirement in announcing waiver
standards and the requirement that it provide an adequate
explanation for its actions are questions of law where factual
development would not aid review. See Better Gov’t Ass’n v.
Dep’t of State, 780 F.2d 86, 92-93 (D.C. Cir. 1986).
Accordingly, these challenges are ripe, see Sabre, Inc. v. Dep’t
of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005); Gen. Elec.
Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002), although some
of the NAB’s other challenges are unripe. The challenges that
are ripe lack merit.
1. As regards the Commission’s weakening of second-
adjacent channel interference protections under Sections 73.807
and 73.809, the NAB asserts that a “single unsupported
sentence” is the totality of the Commission’s reasoning and fails
to satisfy the APA’s requirement that the Commission provide
a reasoned explanation for the change. Petr’s Br. at 16. In that
sentence, the Commission stated: “Based on desired-to-
undesired (“D/U”) signal strength ratio calculations, in most
circumstances interference would be predicted to extend from
ten to two hundred meters from the LPFM station antenna.”
2007 Order at 21,939 ¶ 65. However, this sentence was only
part of the Commission’s reasoned and adequate explanation for
the change in its approach to second-adjacent channel
protections. See FCC v. Fox Television Stations, Inc., No. 07-
13
582, slip op. at 10 (U.S. Apr. 28, 2009); Motor Vehicle Mfrs.
Ass’n, 453 U.S. at 42-43.
In the 2007 Order, the Commission described the changed
circumstances that prompted it to “adjust[] the balance of the
competing priorities of interference protection and preserving
existing service.” Respt’s Br. at 41; see 2007 Order at 21,913.
The Commission explained that its staff had identified
approximately 40 LPFM stations that could be forced to cease
operations under Section 73.809 because of increases in full-
power FM station modification applications. To minimize
displacement threats from the increasing number of encroaching
full-power FM stations while minimizing the impact on full-
power stations, the Commission limited the reach of Section
73.809 to co-channels and first-adjacent channels but retained
the second-adjacent channel minimum distance requirement for
allotting LPFM stations in the first instance contained in Section
73.807. The Commission also explained that any interference
to full-power stations would be minimal because “second-
adjacent channel interference to a full service station is generally
predicted to occur only in the immediate vicinity of the LPFM
station transmitter site,” and the stations could implement
“various techniques” to “substantially reduce[]” predicted
interference, 2007 Order at 21,938 ¶ 63, noting that such
techniques had already been successfully employed, see id. at ¶
62.
The Commission’s discussion of the changed circumstances
and minimal predicted interference satisfy the APA’s
requirement that an agency justify a reversal in course. As the
Supreme Court recently cautioned in Fox Television Stations,
there is “no basis in the Administrative Procedure Act or in our
opinions for a requirement that all agency change be subjected
to more searching review” than when an agency adopts a policy
in the first instance. FCC v. Fox Television Stations, Inc., No.
14
07-582, slip op. at 10 (U.S. Apr. 28, 2009). The extent of the
Commission’s explanation distinguishes this case from
American Radio League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir.
2008), where the Commission summarily dismissed empirical
data submitted at its invitation. Moreover, the quoted
observation about predicted interference on which the NAB
focuses is, as the Commission points out, not cryptic because
“the concept of desired-to-undesired signals is basic to making
these sorts of potential interference determinations and is spelled
out in Commission rules for addressing ‘short-spaced’
situations.” Respt’s Br. at 34 (citing 47 C.F.R. § 73.215).
2. The NAB challenges the Commission’s interference
finding on the ground that it is untethered to record evidence.
But the Commission’s statement about predicted interference
from second-adjacent channel LPFM stations is consistent with
its conclusion in 2000. Then the Commission concluded, upon
considering technical studies submitted by a number of
commenters including the NAB, that the risk of interference
from LPFM signals on second-adjacent channels “may be
somewhat higher” than the “small amount of interference that
may occur” from signals on third-adjacent channels. 2000 Order
at 2,246 ¶ 104. Likewise, in 2005, the Commission stated that
“it would be useful to consider whether to limit the Section
73.809 interference procedures to situations involving co- and
first-adjacent channel predicted interference, where the
predicted interference areas are substantially greater than for
second- and third-adjacent channel interference.” 2005 Further
Notice at 6,780 ¶ 38. In the 2007 Order, the Commission
concluded that “in most circumstances interference would be
predicted to extend from ten to two hundred meters from the
LPFM station antenna.” 2007 Order at 21,939 ¶ 65. This
statement reflects that the Commission’s engineering judgment
did not change, but rather the Commission reevaluated the
15
competing priorities of interference protection and preserving
existing service in the face of changed circumstances.
Moreover, one aspect of the NAB’s challenge is unripe. In
connection with the waiver standards, the Commission made the
interference prediction in the context of suggesting that
“[c]learly it will be advantageous to an LPFM applicant’s
waiver showing to propose modifications that minimize the area
of predicted interference.” 2007 Order at 21,939 ¶ 65. It is as of
yet unclear whether and how the stated interference prediction
will affect the Commission’s consideration of a particular
waiver request and such a fact-bound inquiry is best assessed in
a concrete setting. See Ohio Forestry Ass’n v. Sierra Club, 523
U.S. 726, 732 (1998). Hardship is minimal at best because
NAB’s members may assert a particular claim of harm when a
waiver is sought, see AT&T Corp. v. FCC, 349 F.3d 692, 700
(D.C. Cir. 2003), and the Commission’s final action on waiver
requests is not to occur until it completes the rulemaking begun
in the 2007 Order.
3. The NAB also contends the Commission’s adoption of
the waiver policies violates the APA notice-and-comment
requirement. (The NAB conceded at oral argument that notice-
and-comment procedures are not required to establish the
Commission’s rebuttable presumption favoring waiver of
secondary status, as our precedent makes clear, see Pandhandle
Producers & Royalty Owners Ass’n v. Econ. Regulatory Admin.,
822 F.2d 1105, 1110 (D.C. Cir. 1987).) The APA exempts from
its notice-and-comment requirement “interpretative rules,
general statements of policy, or rules of agency organization,
procedure, or practice.” 5 U.S.C. § 553(b)(A); see also Ctr. for
Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d
798, 807 (D.C. Cir. 2006). In determining whether an agency
has issued a statement of policy rather than a binding rule
subject to notice-and-comment, the court looks to the effects of
16
the agency’s action, asking whether the agency has imposed any
rights and obligations or has left itself free to exercise discretion,
taking into account the agency’s phrasing, Ctr. for Auto Safety,
452 F.3d at 806. The court further considers: “(1) the [a]gency’s
own characterization of the action; (2) whether the action was
published in the Federal Register or the Code of Federal
Regulations; and (3) whether the action has binding effects on
private parties or on the agency,” Molycorp, Inc. v. EPA, 197
F.3d 543, 545 (D.C. Cir. 1999). See Ctr. for Auto Safety, 452
F.3d at 806-07.
Here, the Commission characterized its announcement as a
“clarification,” 2007 Order at 21,939 ¶ 64, of its waiver
standards while expressly “le[aving] itself free to exercise
discretion,” Center for Auto Safety, 452 F.3d at 806. The
standards are generalized and only take effect once the
Commission, or the Media Bureau, determines that a waiver is
in the public interest; therefore, they do not yet have a binding
effect on private parties and they do not bind the Commission to
a particular result in any case. The standards also were not
published in the Code of Federal Regulations, and the
Commission will not take final action on waiver requests until
the rulemaking begun in the 2007 Order is completed. The
NAB’s citations to cases defining waiver as a tool to be used in
narrow circumstances neither speak to the APA notice-and-
comment question nor cast doubt upon the Commission’s waiver
standards, which address individualized cases and specify
prerequisites for granting a waiver as well as factors the
Commission will consider. See 2007 Order at 21,940 ¶ 67,
21,941 ¶ 69. So understood the policy “genuinely leaves the
agency . . . free to exercise discretion.” Cmty. Nutrition Inst. v.
Young, 818 F.2d 942, 946 (D.C. Cir. 1987). The Commission’s
announcement of waiver standards thus falls within the APA
exception for general statements of policy.
17
The NAB persists that although an agency typically may
promulgate de minimus exemptions to statutes it administers, see
Shays v. FEC, 414 F.3d 76, 113-14 (D.C. Cir. 2005), the
Commission could not view, and has not viewed, second-
adjacent protections as de minimus. However, the Commission
has authority under its rules, see 47 C.F.R. § 1.3, to waive
requirements not mandated by statute where strict compliance
would not be in the public interest, so long as it articulates
identifiable standards for exercising that authority. See
NetworkIP, LLC v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008);
Ne. Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir.
1990); WAIT Radio v. FCC, 418 F.3d 1153, 1159 (D.C. Cir.
1969). In announcing the waiver standards, the Commission
satisfied those conditions. The interim minimum distance
waiver policy is to apply only where implementation of a new
or modified full-power station would result in the full-power and
LPFM stations operating at less than the required minimum
distance separation and there is no alternate, fully-spaced, rule-
complaint channel available to the LPFM station. 2007 Order
at 12,939-40, ¶¶ 65-67. Where the LPFM station has been
regularly providing eight hours of daily locally originated
programming, the Commission will apply a rebuttable
presumption that the public interest favors the LPFM station
over granting the full-power station’s modification application,
id. at 21,940 ¶ 68, and the Commission retained discretion to
deny a waiver request in any event, id. at 21,941 ¶ 69.
4. Finally, the NAB’s contention that the presumption in
favor of LPFM weakens protections for full-power stations is
unavailing given the narrow scope of the Preservation Act’s
restriction on the Commission’s authority. Furthermore, the
NAB’s interpretation of the presumption’s effect — that second-
adjacent channel protection no longer exists — ignores the six
factors that a full-power station may contest, 2007 Order at
21,941 ¶ 69, the rebuttable nature of the presumption, and the
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Commission’s retention of discretion to deny a waiver request
even where the LPFM station has made the required showing.
The Commission stated it intended to limit the presumption to
those LPFM stations that have “regularly provided at least eight
hours per day of locally originated programming,” 2007 Order
at 21,940 ¶ 68, and not to apply it where a full-power facility
proposes to improve service to the community covered by its
license. Id. at 21,941 ¶¶ 69-70. In suggesting that the secondary
stature of LPFM stations under the new presumption violates the
APA because the presumption is based on an unsupported
assumption that stations that provide local programming serve
the public interest, the NAB overlooks that the presumption
reflects the Commission’s view that locally originated
programming is a primary benefit of the LPFM service. See id.
at 21,922 ¶ 24. And, contrary to the NAB’s suggestion, the
presumption appears not to implicate the Commission’s
consideration of programming content as the Commission’s
reference to “locally originating programming,” id. at 21,940 ¶
68, refers under its rules to the geographic location of the
production of programming, see 47 C.F.R. § 73.872(b)(3), not
the substantive content of the programs. As there is no clear
indication that the Commission will regulate content in applying
the presumption, the challenge based on the Commission’s
regulation of content is unripe.
Accordingly, we deny the petition in part and dismiss the
petition in part.