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 170. The license renewal “standing alone” is not enough. Maj. op. at 171.
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 plaintiffs injury needs to be “actual or imminent, not conjectural or hypothetical.” Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (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 Poco-moke 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. § 309(k). We give “substantial judicial deference” to the FCC’s judgment in this regard. FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 1275, 67 L.Ed.2d 521 (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. 28, 2001). New World Radio’s arguments have not convinced me this action was beyond the FCC’s power, so I would affirm the agency’s decision on the merits.