Jaramillo v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 1998 Decided December 15, 1998

No. 98-1061

Leticia Jaramillo and

Joseph Rey,

Appellants

v.

Federal Communications Commission,

Appellee

Press Communications LLC,

Intervenor

Appeal of an Order of the

Federal Communications Commission

Bruce A. Eisen argued the cause and filed the briefs for
appellants.

Gregory M. Christopher, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the

brief were Christopher J. Wright, General Counsel, and Dan-
iel M. Armstrong, Associate General Counsel.

Harry F. Cole was on the brief for intervenor Press
Communications LLC.

Before: Wald, Williams and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: Leticia Jaramillo and Joseph Rey
petition for review of a Federal Communications Commission
decision to authorize assignment of a radio license; we dis-
miss for lack of standing.

Press Broadcasting Company sought the FCC's permission
to assign its license for station WTKS(FM), in Cocoa Beach,
Florida, to Paxon Broadcasting of Orlando, L.P. The peti-
tioners here filed a Petition to Deny, arguing that Press was
not qualified to be a licensee because of alleged deception in a
decade-old transaction involving the acquisition of a complete-
ly different station, and that under the Commission's "Jeffer-
son Radio" policy, see Jefferson Radio Co. v. FCC, 340 F.2d
781 (D.C. Cir. 1964), the assignment must be held up until the
Commission had resolved that claim. The FCC's Audio
Services Division dismissed the petition on the merits and
granted Press's application to transfer. The Commission
denied review. 13 F.C.C.R. 1026 (1998).

Petitioners, of course, bear the burden of establishing the
three elements of constitutional standing in this court: injury
in fact, causation, and redressability. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992). They claim to have
done so in two ways: as listeners and as competitors.

The only assertions of fact on which petitioners base their
claim to listener standing is that they are "residents of
Orlando, Florida" and "listeners of WTKS(FM)." (Orlando is
near Cocoa Beach.) But they have identified no serious
causal link between FCC scrutiny of the conduct of a licensee
who seeks to depart from operation of a station and any
possible material impairment of their hopes or expectations as
listeners.

We assume arguendo that petitioners may have suffered a
cognizable injury from being within the listening range of a
radio station held by a licensee that acquired the station in
violation of the FCC's standards of candor. But past injury
is not enough to support the standing of a party who doesn't
seek damages or similar compensation for that injury. See
Branton v. FCC, 993 F.2d 906, 909 (D.C. Cir. 1993). If a
petitioner cannot obtain compensation to himself for a past
injury, he has failed to show its redressability. See Steel Co.
v. Citizens for a Better Env't, 118 S. Ct. 1003, 1018-19 (1998).

Nor could there be any direct future injury, for the out-
come--transfer of the license to another--is exactly the same
as would eventuate if the Commission held up the assignment,
found Press not qualified, and took away its license. The
case is thus completely different from prior decisions of this
court where we found listener standing to object to Commis-
sion decisions that would create or extend some arguably
program-impairing circumstance, such as a duopoly, see Ller-
andi v. FCC, 863 F.2d 79, 85 (D.C. Cir. 1988), or a renewal of
a license for a firm guilty of broadcast policy violations, see
Office of Communication of the United Church of Christ v.
FCC, 359 F.2d 994 (D.C. Cir. 1966) (Fairness Doctrine chal-
lenge).

Here no such continuation is contemplated. What is at
issue is simply an asserted underenforcement of the Jefferson
Radio policy, a policy intended to "enhanc[e] the deterrent
effect of whatever substantive provision supports the attack
on the incumbent licensee." Coalition for the Preservation of
Hispanic Broad. v. FCC, 931 F.2d 73, 80 (D.C. Cir. 1991).
The only adverse impact on listeners of any such underen-
forcement would be a marginal reduction in the in terrorem
effect of the policy on licensees, leading to some marginal
increase in violations of FCC requirements. But just as in
Branton whatever marginal weakening of the deterrent effect
of a statute limiting indecent broadcasting might flow from a
specific non-enforcement of that statute was not "immediate"
enough to meet Article III standards, 993 F.2d at 909-10, so
too is the impact of a mistaken failure to catch a Jefferson
Radio violation. We note that if such a weak and indirect

effect were enough, listeners anywhere could challenge any
underenforcement of the policy.

We doubt that petitioners' alternative theory--competitor
standing--is properly before us. Assuming that a footnote in
petitioners' reply brief sufficiently raises such a theory, how-
ever, we reject it on the merits. Petitioners appear to argue
that their ownership of a television station in the Orlando
area makes them competitors to WTKS(FM). Even assum-
ing in petitioners' favor that competition with a violator of
FCC rules is more burdensome than competition with a true-
blue follower, the effect of the FCC decision here is to bring
about the complete cessation of that competition the moment
that Press ceases to be the licensee. Thus, petitioners as
competitors are left with irremediable past injury from alleg-
edly illegal competition and future deterrence of such compe-
tition; both are as deficient as their equivalents for listener
standing.

At bottom petitioners appear to seek the simple satisfaction
of seeing the laws enforced--perhaps because years of litiga-
tion with Press have made them see their relation with it as a
zero-sum game in which every blow to Press is a boon for
petitioners. This is not the accepted reading of Article III.

We dismiss the petition.

So ordered.