United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 31, 1997 Decided January 16, 1998
No. 97-1228
Tribune Company,
Appellant
v.
Federal Communications Commission,
Appellee
________
Consolidated with
No. 97-1229
________
Appeals from Orders of the
Federal Communications Commission
________
Carter G. Phillips argued the cause for appellant, with
whom Mark D. Schneider, Katherine L. Adams, Gary D.
Mitchell, and Charles J. Sennet were on the briefs.
Daniel M. Armstrong, Associate General Counsel, Federal
Communications Commission, argued the cause for appellee,
with whom William E. Kennard, General Counsel at the time
the brief was filed, and C. Grey Pash, Jr., Counsel, were on
the brief.
John F. Sturm, Richard E. Wiley, James R. Bayes, James
J. Popham, Henry L. Baumann, and Jack N. Goodman were
on the brief for amici curiae Association of Local Television
Stations, Inc., et al.
Before: Silberman, Sentelle, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellant challenges the Feder-
al Communication Commission's refusal to grant it a perma-
nent waiver, or at least a temporary waiver pending
the outcome of future rulemaking, of its daily newspaper
cross-ownership rule. We affirm.
I.
Tribune Company, which publishes the Sun-Sentinel news-
paper in Fort Lauderdale, Florida, agreed to merge with
Renaissance Communications Corporation, the owner of six
television station licenses, including WDZL(TV) in Miami,
Florida,1 subject to the FCC's approval of the transfer of
those licenses to Tribune. The Commission, however, deter-
mined that WDZL's Grade A contour 2 encompassed the
entire Fort Lauderdale community; therefore, WDZL and
the Sun-Sentinel were in the same primary market, and the
daily newspaper cross-ownership rule prohibited their com-
mon ownership. The Commission nevertheless granted Trib-
__________
1 The other stations are: KTXL(TV), Sacramento, CA; WTIC-
TV, Hartford, CT; WXIN(TV), Indianapolis, IN; WPMT(TV),
York, PA; and KDAF(TV), Dallas, TX.
2 Grade A contour is a measure of signal field strength. The
Commission has said that the boundary of the Grade A contour is
set where a good picture may be expected to be available for at
least 90% of the time at the best 70% of receiver locations. See
Clarksburg Publ'g Co. v. FCC, 225 F.2d 511, 516 n.12 (D.C. Cir.
1955).
une a temporary waiver of its rule, which allowed Tribune to
take possession of the WDZL station license (the merger was
consummated on March 25, 1997). But it required that
Tribune divest itself of that license or the Sun-Sentinel
before March 22, 1998, one year from the date of the FCC's
order.
The relevant portion of the Commission's daily newspaper
cross-ownership rule provides that "[n]o license for [a] ... TV
broadcast station shall be granted to any party ... if such
party directly or indirectly owns, operates or controls a daily
newspaper and the grant of such license will result in [t]he
Grade A contour of a TV station ... encompassing the entire
community in which such newspaper is published." 47 C.F.R.
s 73.3555(d)(3) (1996). The Commission has explained that
its rule rests on the twin goals of promoting viewpoint
diversity and economic competition. See Multiple Ownership
of Standard, FM, and Television Broadcast Stations, Second
Report and Order, 50 F.C.C.2d 1046, 1074 (1975). Its consti-
tutionality was unanimously upheld by the Supreme Court in
FCC v. National Citizens Committee for Broadcasting
(NCCB), 436 U.S. 775 (1978). The Court observed that under
the Act's public interest standard, see 47 U.S.C. ss 303,
309(a) (1994), it was well within the Commission's domain to
pursue "the First Amendment goal of achieving 'the widest
possible dissemination of information from diverse and antag-
onistic sources.' " NCCB, 436 U.S. at 795 (quoting Associated
Press v. United States, 326 U.S. 1, 20 (1945)). It held that in
light of the "physical scarcity," id. at 799, of the broadcast
spectrum, the rule did not violate the First Amendment
rights of newspaper owners because "there is no 'unabridge-
able First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish.' " Id.
(citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388
(1969)). Nor did it matter that the administrative record
before the Commission did not conclusively establish that the
rule would in fact increase viewpoint diversity in the local
communications market; the agency's predictive judgment
was enough because it was based on its expert knowledge.
NCCB, 436 U.S. at 796-97.
Tribune acknowledged that the FCC's cross-ownership rule
would prohibit it from owning both media outlets. But it
argued before the Commission that the South Florida mass
media market, encompassing Dade (Miami), Broward (Ft.
Lauderdale), and Palm Beach counties, was sufficiently di-
verse and competitive so as to obviate any need to apply the
rule in this case. Tribune identified 23 separately owned
television stations, 69 radio stations operated by 49 different
owners, 7 daily newspapers published by 6 different owners,
15 weekly community newspapers, and in excess of 250
magazines, specialty publications, and consumer journals all
serving the South Florida market. It counted 35 cable
systems providing an average of 62 channels of programming
in the market, and claimed that cable television subscription
rates in each county was above 60%. It showed that approxi-
mately 85% of all households owned a VCR; it also speculat-
ed that many had access to the Internet. And, in light of
certain advertising, subscription, and audience share data, it
argued that the rule clearly was not needed to encourage
economic competition. Tribune claimed that the public would
be disserved by strict enforcement of the rule, because it
could exploit synergies arising from the common ownership of
both print and broadcast news departments to enhance pro-
gramming so as to compete more effectively with other South
Florida news programs. For these reasons, Tribune sought a
permanent waiver of the rule.
The Commission was unpersuaded. Its established waiver
policy, set forth in the FCC's 1975 Second Report and Order,
provides in relevant part that the Commission will consider
waiving the rule "where, for whatever reason, the purposes of
the rule would be disserved by divestiture." In re Applica-
tions of Stockholders of Renaissance Communications Corp.
and Tribune Co. (Renaissance Communications), FCC
97-98, 1997 WL 131036 at p 34 (Mar. 21, 1997). As broad as
this language may appear, the Commission has consistently
interpreted it to allow for waiver only in "exceptional circum-
stances." Metropolitan Council of NAACP Branches v. FCC,
46 F.3d 1154, 1163 (D.C. Cir. 1995). A permanent waiver of
the rule has been granted only twice. In both instances, the
beneficiary was permitted to reacquire a media outlet in
financial distress; in effect, the Commission granted waivers
to permit a rescue.3 According to the FCC, Tribune failed to
show the sort of extraordinary circumstances that would meet
this test. Even if Tribune were correct in asserting there
were a number of competing media voices in the South
Florida market, the FCC believed its primary concern of
ensuring diverse viewpoints from antagonistic sources was
unaffected. The Commission thought Tribune's economic
competition evidence similarly unexceptional. And, the public
benefits Tribune promised were hardly unique; they would
exist in virtually all like combinations. If a waiver were
granted on that basis, the rule would be meaningless.
The Commission determined that to the extent Tribune
called into question the validity of the rule itself or the FCC's
waiver policy, its arguments should be addressed in the
broader context of a rulemaking; they were inappropriate in
a restricted licensing proceeding. Presumably anticipating
this response, appellant asked, in the alternative, that it be
granted, in effect, a temporary waiver until such time as the
Commission completed a rulemaking proceeding to review its
cross-ownership rule or its waiver policy in light of the
changes Tribune identified (which would have extended for a
longer period than the temporary waiver it was ultimately
granted). The FCC declined, apparently because it thought
such action would be inconsistent with prior practice and
because Knight-Ridder, Inc., publisher of the Miami Herald
(which competes with the Sun-Sentinel), was opposed. See
Renaissance Communications at pp 56 n.50, 57.
In response to appellant's claim that the cross-ownership
rule was unconstitutional as applied to Tribune, the FCC
pointed to NCCB and the viewpoint diversity rationale that
case endorsed. Tribune implored the FCC to consider
whether the scarcity rationale underlying that decision was
still valid in light of the proliferation of media sources, but the
Commission declined, noting that "nothing in the subsequent
__________
3 The Commission explained that even temporary waivers of
the kind Tribune received are granted in "relatively rare circum-
stances." Renaissance Communications at p 44 n.34.
decisions of the courts" suggested that the rule was unconsti-
tutional. Renaissance Communications at p 51. We agreed
to hear Tribune's appeal on an expedited basis so that
Tribune would have time to effect an orderly divestiture in
the event of an adverse decision.
II.
The Commission's primary objections to appellant's case
are jurisdictional. The Commission contends that because
the Communications Act only allows applicants whose license
transfer application is denied to appeal one of its orders in
our court, 47 U.S.C. s 402(b)(3) (1994), and it granted Trib-
une's application (albeit subject to condition), we must dismiss
Tribune's appeal. Even were we to determine that that
section is not a bar to the appeal, Tribune, the Commission
also argues, failed to comply with the FCC's administrative
exhaustion requirement set forth in its rules. See 47 C.F.R.
s 1.110 (1996).
We start with the statute. In Mobile Communications
Corporation of America v. FCC, 77 F.3d 1399 (D.C. Cir.),
cert. denied, 117 S. Ct. 81 (1996), we decided that when the
Commission grants an application subject to some condition
which the applicant did not request, the application has been
denied for purposes of s 402(b). In that case, the applicant,
Mtel, had sought a license that would have been awarded
without charge under then-applicable law. Before the FCC
ruled on Mtel's application, Congress amended the Communi-
cations Act to require that successful applicants pay for their
licenses, so the Commission imposed a charge. We said that
Mtel's application was properly viewed as being for a free
license rather than a license subject to any condition. By
awarding a license subject to a condition of payment, the
FCC in effect denied that application.
The Commission would have us limit Mobile Communica-
tions to those instances where there has been a change in law
while an application is pending, but we do not see why that is
a principled distinction. We were concerned generally that
by "interpreting an application as one for a license subject to
any condition of the Commission's choosing [we] would permit
the Commission to foreclose judicial review of a de facto
denial by couching its decision as an approval subject to some
intolerable condition." Mobile Communications, 77 F.3d at
1404. Here, Tribune sought to acquire control of the WDZL
license while being allowed to retain ownership of its Sun-
Sentinel newspaper on a permanent basis. The Commis-
sion's order does not permit it to do so. Tribune may hold
both assets temporarily, but must divest itself of one of its
media outlets before March 22, 1998. Therefore, Tribune's
application was denied for purposes of s 402(b)(3).4
Turning to the more troublesome exhaustion argument, the
Commission's rule provides, in pertinent part:
Where the Commission without a hearing grants any
application in part, or with any privileges, terms, or
conditions other than those requested ... the action ...
shall be considered as a grant of such application unless
the applicant shall ... reject[ ] the grant as made.
[Where the applicant seeks reconsideration], the Com-
mission will vacate its original action ... and set the
application for hearing ... .
47 C.F.R. s 1.110 (1996). We have squarely held that "[t]he
plain language of s 1.110 implies an exhaustion requirement"
that "does not allow applicants first to accept a partial grant,
yet later to seek reconsideration of its conditions." Central
Television, Inc. v. FCC, 834 F.2d 186, 190 (D.C. Cir. 1987).
Tribune contends, drawing on the logic of Mobile Commu-
nications' holding, that s 1.110 is not applicable because its
__________
4 Tribune comes before us as both appellant and petitioner,
having appealed the Commission's order in case No. 97-1228 pursu-
ant to s 402(b), and having petitioned for review of that order in
case No. 97-1229 pursuant to 47 U.S.C. s 402(a). As we have said
before, "the provisions for judicial review contained in ss 402(a) and
402(b) are mutually exclusive," Friedman v. FCC, 263 F.2d 493, 494
(D.C. Cir. 1959), so that a claim directed to the same matters may
be brought only under one of the two provisions. See Freeman
Eng'g Assocs. v. FCC, 103 F.3d 169, 177 (D.C. Cir. 1997). Having
decided that Mobile Communications establishes that s 402(b)(3) is
the proper avenue of review when the Commission grants an
application subject to an unasked for condition, we dismiss the
petition in No. 97-1229.
application was really denied. But s 1.110, unlike s 402(b),
is written to specifically deal with a conditional grant and it
could not be clearer that it covers the present case. Just
because a partial grant is a denial for purposes of s 402(b)(3)
does not mean that the same reasoning applies to s 1.110.
Indeed, we said in Mobile Communications, 77 F.3d at 1404,
that "a party whose license application has been denied by
approval subject to conditions (other than ones requested by
the applicant) must normally comply" with s 1.110. Requir-
ing a party who wishes to protest a conditional grant to seek
rehearing before the Commission does not jeopardize that
applicant's rights to appeal as did the Commission's pre-
Mobile Communications construction of s 402(b)(3).
Tribune also argues that it would have been futile for it to
have sought reconsideration in this case. We have recognized
that s 1.110 does not bar review where appellant can show
futility, Central Television, 834 F.2d at 191 n.11, although we
have also cautioned that "[f]utility should not lightly be
presumed." Washington Ass'n for Television and Children
v. FCC, 712 F.2d 677, 682 n.9 (D.C. Cir. 1983). In Mobile
Communications, 77 F.3d at 1404, we said that the basic
reason for s 1.110's exhaustion requirement was to protect
"the Commission's interest in crystallizing its position prior to
review." Of course it follows that reconsideration would be of
no purpose if the Commission's position is already "crystal-
lized." That conclusion is in accord with our decisions in
Omnipoint Corporation v. FCC, 78 F.3d 620, 635 (D.C. Cir.
1996), where we held that it would have been futile to raise an
issue on rehearing under s 405 of the Communications Act
where the FCC was "wedded" to its procedures and Chad-
moore Communications, Inc. v. FCC, 113 F.3d 235, 239-40
(D.C. Cir. 1997), where we seemed to suggest that reconsider-
ation under that same section was futile because the Commis-
sion was firmly entrenched in its position (one judge disa-
greed on the facts, but did not challenge the principle).
On the other hand, in Action for Children's Television v.
FCC, 564 F.2d 458, 469 (D.C. Cir. 1977) (the case upon which
we relied in Central Television in establishing that s 1.110
contains a futility exception), we said that reconsideration
would not be futile if a novel factual issue exists, or if an
agency's views on a particular legal issue had not generally
been made known. We thought the same thing in Noel
Foods v. NLRB, 82 F.3d 1113, 1121 (D.C. Cir. 1996), where
the NLRB "betrayed no awareness" of an issue in its deci-
sion. In short, we think that Mobile Communications sums
it up well; to show that reconsideration would have been
futile, an appellant must show that the Commission has left
no doubt about its position. It was suggested (but only at
oral argument) that the exhaustion requirement, because it
provides for a hearing before an ALJ, should be limited to
those cases in which there is a factual dispute. Yet the
Commission does not interpret its regulation in that manner
and we see no reason why it should. It may not be apparent
when an applicant wishes to challenge a condition whether
factual evidence is needed or not. And even if only legal or
policy arguments are presented, it surely is not inappropriate
for the Commission to insist that the arguments be presented
first to an ALJ, who would then present to the Commission a
recommended decision. Accordingly, we are obliged to exam-
ine appellant's arguments and the Commission's treatment of
them, both in this case and others, to determine whether it
would have been futile for Tribune to have complied with the
Commission's administrative exhaustion requirement. We
must determine whether the FCC has taken a hard and fast
position, or whether appellant had a decent chance of convinc-
ing the FCC on rehearing. Paradoxically, the more persua-
sive appellant's argument, the worse off it may be with
respect to exhaustion.5
III.
Tribune essentially makes two arguments. It argues (with
the support of amici Newspaper Association of America,
__________
5 The Commission's counsel suggests that appellant's failure to
comply with s 1.110 prevents us from reviewing any of Tribune's
claims. But we think that if it would have been futile for Tribune to
have sought reconsideration of any particular claim, that claim may
be severed from the rest and heard.
Association of Local Television Stations, and National Associ-
ation of Broadcasters) that the "factual and legal foundations"
supporting the daily newspaper cross-ownership rule have
been irreparably shaken by the dramatic changes in the
media marketplace over the last two decades. Since there
has been a proliferation of media outlets, it can no longer be
said that those outlets are scarce, and therefore the rule
should no longer be applied to applicants, or at least not
Tribune. Tribune alternatively claims that the Commission
arbitrarily denied Tribune a procedural alternative--a longer
temporary waiver--that it had recently offered to a similarly
situated applicant. We think that it would have been useless
for Tribune to seek reconsideration of the former, but not the
latter of those arguments.
* * * *
Tribune presents its dispute with the cross-ownership rule
in three different forms: as a challenge to the rule, as a
challenge to the Commission's waiver policy, and as an "as
applied" challenge. But whichever way the argument is
made, the Commission clearly and repeatedly demonstrated
that it would apply its rule, as upheld by the Supreme Court
in NCCB, in this adjudicatory license transfer proceeding; if
the rule is to be reconsidered, it must be in a rulemaking
proceeding. Renaissance Communications at pp 50, 51. It
can hardly be said that Tribune had a realistic chance to
convince the FCC otherwise on rehearing, and reconsidera-
tion, then, would have been futile. We therefore consider
each variation of Tribune's argument.
First, it is claimed that the Commission is obliged to
reconsider its cross-ownership rule or at least to not apply it
in this case. The Commission, as we noted, refused to do so
in the context of an adjudicatory licensing proceeding. Trib-
une (perhaps because of time constraints imposed by the
merger) did not ask the Commission to initiate a new rule-
making procedure, so it can hardly appeal the Commission's
refusal to do so. And it is hornbook administrative law that
an agency need not--indeed should not--entertain a chal-
lenge to a regulation, adopted pursuant to notice and com-
ment, in an adjudication or licensing proceeding. See P.
Strauss, et al., Gellhorn and Byse's Administrative Law 657
(9th ed. 1995) (agency is bound by its substantive rules unless
validly amended or rescinded); Consumer Energy Council of
Am. v. FERC, 673 F.2d 425, 446 (D.C. Cir. 1982) (APA
contemplates that a substantive rule would be amended or
repealed by rulemaking under APA).
We have suggested (in dicta) that where an agency is
confronted with an undisputable indication that its rule is
illegal, either because of the reasoning of a Supreme Court
decision or intervening legislation, it may be entitled, indeed
obliged, to decline to apply it. American Tel. & Tel. Co. v.
FCC (AT&T), 978 F.2d 727, 733 (D.C. Cir. 1993).6 Appellant
would have us treat its claim as coming within the AT&T
exception because the legality--the constitutionality--of the
cross-ownership rule was based on the scarcity doctrine, and
the Supreme Court has obliquely suggested it might reconsid-
er that doctrine on the FCC's "signal ... that technological
developments have advanced so far that some revision of the
system of broadcast regulation may be required." FCC v.
League of Women Voters, 468 U.S. 364, 377 n.11 (1984). That
possibility is simply not in the same ballpark as a clear
manifestation that the rule, without any further inquiry, is
illegal. It may well be that faced with a rulemaking petition
the FCC would be thought arbitrary and capricious if it
refused to reconsider its rule in light of persuasive evidence
that the scarcity rationale is no longer tenable. See Ameri-
can Horse Protection Ass'n v. Lyng, 812 F.2d 1 (D.C. Cir.
1987); WWHT, Inc. v. FCC, 656 F.2d 807 (D.C. Cir. 1981);
Geller v. FCC, 610 F.2d 973 (D.C. Cir. 1979) (per curiam).7
__________
6 We suggested in that unusual event the agency would pre-
sumably issue a notice of proposed revocation of the rule--which
would essentially go into effect immediately.
7 The scarcity doctrine has been the subject of "intense criti-
cism," see, e.g., Time Warner Entertainment Co. v. FCC, 105 F.3d
723, 724 (D.C. Cir. 1997) (Williams, J., dissenting from denial of
rehearing en banc); many have questioned its continuing validity.
And the Supreme Court's suggestion that it might reconsider
the scarcity doctrine on the FCC's "signal" in League of
Women Voters may impose an implicit obligation on the
Commission. Congress, since 1987, expressly forbad the
Commission (in appropriations legislation) from reconsidering
its daily newspaper cross-ownership rule, but it has now
directed the FCC to review all of its media ownership rules,
including the one in question, at least biennially. See Tele-
communications Act of 1996, Pub. L. No 104-104, s 202(h),
110 Stat. 56, 111-12 (1996). Still, whether the Commission is
obliged to reconsider its rule can be raised to this court only
on review of a Commission denial of a rulemaking petition.
Appellant's next formulation is that the Commission was
obligated to reconsider its waiver policy in the licensing
proceeding. Appellant relies on two of our prior cases,
Meredith Corporation v. FCC, 809 F.2d 863 (D.C. Cir. 1987),
and Bechtel v. FCC, 957 F.2d 873 (D.C. Cir. 1992), in which
we held that an FCC policy could be challenged in an
adjudicatory or license proceeding. Appellant's difficulty is
that its claim and supporting evidence calls into question not
just the FCC's waiver policy, but the continuing validity of an
underlying rationale justifying the cross-ownership rule it-
self--the scarcity doctrine. As the Commission points out, if
the FCC were to grant waivers on the grounds appellant
suggests, virtually all like combinations would also be entitled
to a waiver, and nothing would remain of the rule. Changes
in the media marketplace are not unique to South Florida.
Neither of the cases appellant relies upon involved an implicit
attack on a rule adopted under the APA.
Finally, Tribune argues that the rule, as applied to Trib-
une, is unconstitutional. But the so-called "as applied" chal-
lenge is, like appellant's challenge to the FCC's waiver policy,
really no different than a challenge to the rule. It is as
apparent to us as it was to the Commission that Tribune is
not presenting a unique "as applied" case. Again, the evi-
dence Tribune presents is not particular to the South Florida
market; most, if not all, of the country's media markets have
experienced similar growth. In any event, in upholding the
rule in NCCB, the Supreme Court did so by relying, in part,
on the Commission's predictive judgment, based on experi-
ence, that it was unrealistic to expect diversity from common-
ly owned entities. The Commission apparently is still wed-
ded to that judgment, see Renaissance Communications at
pp 47, 51, and nothing in the subsequent decisions of the
Court have called the constitutional validity of that judgment
into question. Nor are we free to "reexamine the scarcity
doctrine in this case on this record," as Tribune asks. The
Supreme Court has told the lower federal courts in no
uncertain terms that we are to leave the overruling of its
opinions to the Court itself. See State Oil Co. v. Khan, 118
S. Ct. 275, 284 (1997); see also United States v. $639,558, 955
F.2d 712, 718 (D.C. Cir. 1992). We are stuck with the
scarcity doctrine until the day that the Supreme Court tells
us that the Red Lion no longer rules the broadcast jungle.
* * * *
Tribune's second main argument, that the Commission
behaved in an arbitrary and capricious manner by not staying
the running of the divestiture period until a rulemaking to
review the daily newspaper cross-ownership rule was com-
pleted, is its most compelling.8 Two Commissioners in fact
endorsed this course of action in separate statements. As
Tribune points out, the Commission previously followed a
closely analogous course of action in In re Applications of
Capital Cities/ABC, Inc., and the Walt Disney Company, 11
F.C.C.R. 5841 (1996). In that case, the FCC approved the
transfer of a radio license to a company that owned a
newspaper in the same primary market, subject to an order
to divest one of the assets within a year. Appellant is, of
course, subject to the same condition. Yet in Capital Cities,
the Commission at the same time began a review of its daily
newspaper/radio cross-ownership waiver policy. See id. at
5851; see also In the Matter of Newspaper/Radio Cross-
__________
8 We note that Tribune devoted only one paragraph in a 58
page brief to making this argument, which barely survives our
requirement that a parties' arguments be sufficiently developed lest
waived.
Ownership Waiver Policy, 11 F.C.C.R. 13003 (1996) (notice of
inquiry seeking comment on that policy). When it became
clear that the proceeding to reexamine the waiver policy
would not be completed until after the 12 month period had
expired, the Commission granted Disney's request to defer
the divestiture date until six months from the issuance of the
effective date of the FCC's action in that proceeding. The
Commission apparently denied Tribune's request for what
would be in effect a temporary waiver pending the outcome of
a rulemaking concerning its daily newspaper/television cross-
ownership rule in this case because such course of action
would be somehow inconsistent with prior practice, Renais-
sance Communications at p 57, and because Knight-Ridder,
Tribune's competitor, opposed it. Id. at p 56 n.50.
Unfortunately for appellant, we are foreclosed from consid-
ering its claim that the Commission's inconsistent treatment
of the two cases reflects arbitrary and capricious decision-
making, because we do not think that reconsideration of this
specific challenge would have been futile. The Commission's
answer as to why it granted a temporary waiver pending the
completion of a rulemaking in Capital Cities, but did not in
Tribune's case, seems inexplicable. We agree with appellant
that the Commission "essentially ignored" this portion of
Tribune's argument. We can only speculate why the Com-
mission did not give this issue the care it deserved. It
appears that before the FCC, as before us, Tribune did not
make this claim its focus; Tribune directs us to only three
pages of its approximately 400 page application to show that
it made the argument before the Commission. Had Tribune
sought reconsideration, the Commission's attention surely
would have been squarely drawn to the issue. We thus, given
the logic of appellant's argument and the FCC's inadequate
response, do not see how we can conclude that reconsidera-
tion would have been futile.
We are not unsympathetic to Tribune's position. Amici
filed a petition for rulemaking seeking repeal of the daily
newspaper cross-ownership rule (after the Commission's or-
der in the Tribune proceeding). The government's counsel
told us at oral argument that the Commission plans, pursuant
to the requirement imposed by the Telecommunications Act
of 1996, to review its cross-ownership rule in the near future.
But the Commission subsequently informed us that it does
not expect a review to begin until the summer or the fall of
1998. It seems a shame for Tribune not to be given the same
relief as Disney in Capital Cities. Still, Tribune could have
protected itself by seeking reconsideration. Or, had it filed a
petition for rulemaking at the same time that it filed its
transfer application, the Commission might have been more
willing to consider Tribune's temporary waiver alternative.
Tribune did not pursue either option, perhaps because, as the
Commission suggests, to challenge the FCC's original deci-
sion would have jeopardized its merger agreement with Re-
naissance. Whatever Tribune's reason may have been, the
Commission is entitled to preserve the "finality of its deci-
sions." Central Television, 834 F.2d at 190-91.
* * * *
The Commission's order is affirmed. Tribune's petition for
review in No. 97-1229 is denied, and the portion of its appeal
for which reconsideration would not have been futile is dis-
missed for want of jurisdiction.
So ordered.