Coaltn Noncmercl v. FCC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2001 Decided June 1, 2001

No. 00-1253

Coalition for Noncommercial Media,
Petitioner

v.

Federal Communications Commission and
United States of America,
Respondents

Western New York Public Broadcasting Association,
Intervenor

On Petition for Review of an Order of the
Federal Communications Commission

Jared S. Sher argued the cause for petitioner. On the
briefs were David E. Honig, John C. Quale and Mark C. Del
Bianco.

 James M. Carr, Counsel, Federal Communications Com-
mission, argued the cause for respondents. With him on the
brief were Christopher J. Wright, General Counsel, Daniel
M. Armstrong, Associate General Counsel, A. Douglas Me-
lamed, Acting Assistant Attorney General, U.S. Department
of Justice, Robert B. Nicholson and Adam D. Hirsh, Attor-
neys. Catherine G. O'Sullivan, Attorney, entered an appear-
ance.

Robert A. Woods and Malcolm G. Stevenson were on the
brief for intervenor Western New York Public Broadcasting
Association. Lawrence M. Miller entered an appearance.

Before: Edwards, Chief Judge, Williams and Henderson,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The Coalition for Noncommercial
Media, a nonprofit organization, challenges a Federal Com-
munications Commission order swapping the status of two
television channels licensed to the Western New York Public
Broadcasting Association ("the Association"). As a result of
the swap, Channel 17, previously unreserved, became re-
served for non-commercial use and Channel 23, previously
reserved, ceased to be. (The Commission allots a digital
channel to accompany each analog channel,1 and its order
effected similar switches for the Association's digital chan-
nels.) Pinning standing to the status of its members as
viewers of these channels, the Coalition raises a host of
claims. We find the appeal timely: The Coalition's appeal
properly falls under 47 U.S.C. s 402(a) and its 60-day limit
(see 28 U.S.C. s 2344), rather than under s 402(b) and its 30-
day limit (see s 402(c)), as the Commission urges. But
because the issues that the Coalition preserved for review
lack merit, we affirm.

__________
1 See In re Advanced Television Systems and Their Impact
upon the Existing Television Broadcasting Service, 13 F.C.C.R.
7418, 7517-18 p p 291-92 (1998), aff'd, Community Television, Inc.
v. FCC, 216 F.3d 1133 (D.C. Cir. 2000); see also 47 CFR
s 73.622(a).

 * * *

The Commission began assigning television channels to
geographic regions almost fifty years ago. To encourage the
development of educational programming, the Commission
reserved some channels for noncommercial use, identifying
such channels with an asterisk in what is now called the Table
of Allotments. See In re Amendment of Section 3.606 of the
Commission's Rules and Regulations, 41 F.C.C. Reports 148,
158-64, 228 & n.60 p p 33-49, 253(a) (1952); see also 47 CFR
s 73.606.

To modify a channel assignment, a broadcast licensee must
apply to the Commission, normally thereby exposing itself to
competing license applications. In the case of some relative-
ly simple exchanges, however, the Commission has taken the
view that the application of this general precept might un-
justifiably discourage beneficial exchanges. To address this
concern, it adopted in 1986 a rule expressly permitting a
commercial and a noncommercial broadcaster to petition to
exchange channels without facing competing applications for
the licenses. See In re Amendments to the Television Table
of Assignments to Change Noncommercial Educational Res-
ervations, 59 Rad. Reg. 2d (P & F) 1455 (1986); see also 47
CFR s 1.420(h).

The Association operates two noncommercial television sta-
tions in Buffalo, New York--WNEQ-TV on Channel 23,
which was reserved for noncommercial educational use, and
WNED-TV on Channel 17, which was unreserved. In May
1998, the Association petitioned for a rulemaking to amend
the Table of Allotments to switch the two channels' status.
See Petition for Rule Making, Joint Appendix ("J.A.") at 1.
The Association stated that it would provide "a significantly
enhanced programming operation at Station WNED-TV",
which it claimed was "the more powerful of the two stations",
and would "derive substantial new and necessary financial
support for an endowment fund for its Station WNED-TV
operations through assignment of its facility on unreserved
Channel 23 to a commercial entrepreneur." Id. at 3-4. The

Commission's Mass Media Bureau issued a Notice of Pro-
posed Rule Making on the Association's proposal and received
comments from the Coalition, among others. Finding that
the proposed change in reservation status would improve
noncommercial service in Buffalo and would not eliminate any
noncommercial channel reservations, the Bureau granted the
petition and modified the television licenses under s 316(a) of
the 1934 Communications Act to reflect the change in July
1999. See In re Amendment of Section 73.606(b), Table of
Allotments, Television Broadcast Stations and Section
73.622(b), Table of Allotments, Digital Television Broadcast
Stations (Buffalo, New York), 14 F.C.C.R. 11,856, 11,859,
11,861-62, 11,863 p p 9, 15, 19 (Mass Media Bur. 1999) ("Bu-
reau Order"). The Commission denied the Coalition's appli-
cation for review. See In re Amendment of Section
73.606(b), Table of Allotments, Television Broadcast Stations
and Section 73.622(b), Table of Allotments, Digital Television
Broadcast Stations (Buffalo, New York), FCC 00-130 (Memo-
randum Opinion and Order April 19, 2000), J.A. at 188
("Order"). The Coalition now seeks judicial review.

* * *

The Commission published its order on May 4, 2000. See
65 Fed. Reg. 25,865 (2000). The Coalition filed its petition for
review on June 15, 2000. Thus the Coalition's petition was
timely if it belongs under s 402(a)'s 60-day deadline but not
if it belongs under s 402(b)'s 30-day limit. The Coalition's
opening brief oddly asserted that our jurisdiction depended
on s 402(b)(6), a point on which the Commission pounced.
But we decide for ourselves how the petition should be
characterized. See Freeman Engineering Associates, Inc. v.
FCC, 103 F.3d 169, 177 (D.C. Cir. 1997).

For s 402(b)(6) to apply, the Coalition must show that it "is
aggrieved or [its] interests are adversely affected by any
order of the Commission granting or denying any application
described in paragraphs (1) to (4) and (9) of this subsection."
47 U.S.C. s 402(b)(6) (emphasis added); see also Waterway
Communications Systems, Inc. v. FCC, 851 F.2d 401, 403

(D.C. Cir. 1988). The Commission's order, however, neither
grants nor denies any application because the Association did
not submit one; the Association petitioned for a rulemaking
to modify the relevant tables reflecting channel assignments.
It did not seek a modification of its licenses.

The matter is complicated by the fact that, even without a
request, the Commission did modify the licenses. Had the
Association sought the modification, the case would presum-
ably fall under s 402(b)(6), because that subsection cross-
references s 402(b)(2), involving applications to modify an
"authorization" specified in subsection (1), which includes
"station license[s]." This would be true even if the Associa-
tion did not identify its request as an "application." In fact it
made no such request in any form.

But we are still not out of the woods. In Tomah-Mauston
Broadcasting Co. v. FCC, 306 F.2d 811 (D.C. Cir. 1962), we
held that a Commission order denying a petition to stay and
revoke a party's construction permit to build a radio broad-
cast station before it went on the air was reviewable under 47
U.S.C. s 402(b)(6) as an order "ancillary" to the grant of the
construction permit. Id. at 812. In effect the petitioner was
directly seeking to reverse the grant. See also id. (observing
that Commission order was "in substance a re-affirmation of
its earlier grant"). But we have never extended Tomah-
Mauston. In Freeman Engineering Associates, Inc. v. FCC,
103 F.3d 169 (D.C. Cir. 1997), because grant of a "pioneer's
preference" came close to assuring the grantee a license, the
Commission claimed that appeal from such a grant belonged
under s 402(b). Distinguishing Tomah-Mauston, we held
"that the Commission's denial of a pioneer's preference is
neither a denial of a license nor is it ancillary to such,"
stressing that to actually receive the grant the pioneer must
also be "otherwise qualified." Id. at 177-78. Thus even an
application that strongly foreshadows the grant of a s 402(b)
application is not enough. But see WHDH, Inc. v. United
States, 457 F.2d 559, 561 (1st Cir. 1972) (finding s 402(b)
applicable under Tomah-Mauston to appeal attacking grant
of "program test authority," which "is a step short of the
granting of a station license"). That the Commission leapt

forward and on its own hook eliminated the need for such an
application does not create an application where none was
made. We thus find the Coalition's appeal proper under
s 402(a) and timely under the 60-day limit.

* * *

The Coalition makes several arguments before us that it
did not raise with the Commission. See 47 U.S.C. s 405.
Section 405(a) generally dispenses with any need for a peti-
tion for reconsideration with the Commission, but not where
the party seeking review raises a claim "upon which the
Commission ... has been afforded no opportunity to pass."
Although this exhaustion provision does not require that the
"opportunity be afforded in any particular manner, or by any
particular party," Office of Communication of the United
Church of Christ v. FCC, 465 F.2d 519, 523 (D.C. Cir. 1972),
the argument does have to have been meaningfully raised by
someone. See Washington Ass'n for Television & Children
v. FCC, 712 F.2d 677, 681 (D.C. Cir. 1983); Alianza Federal
de Mercedes v. FCC, 539 F.2d 732, 739 (D.C. Cir. 1976).

We find that three of the Coalition's claims have been
waived under 47 U.S.C. s 405. First, the Coalition argues
that when the Commission swapped the channel reservations
in the relevant Tables of Allotments and modified the Associ-
ation's licenses in the same proceeding, it deviated without
explanation from past practice. See Greater Boston Televi-
sion Corp. v. FCC, 444 F.2d 841, 852-53 (D.C. Cir. 1970). In
the Coalition's view this past practice required applicants to
file first for an amendment to the Tables of Allotments and
then separately to modify their licenses to reflect the change.
To support its claim that it made this argument the Coalition
cites a number of pages in its application for Commission
review, see Reply Br. at 11 n.20, but nothing cited reasonably
raises or even suggests this issue. See Time Warner Enter-
tainment Co. v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1998) ("[W]e
ask whether a reasonable Commission necessarily would have
seen the question raised before us as part of the case
presented to it.").

 Grant Television, Inc., a licensee of station WNYO-TV in
Buffalo, New York, did raise this issue--but only before the
Mass Media Bureau. See J.A. at 35-38. Grant Television
was not a party to the Commission's review. As s 405
requires that the Commission itself--and not merely a Com-
mission bureau--have had an opportunity to pass on the
issue, see Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279
(1997), Grant's comments are not enough.

To be sure a few sentences of the Commission order made
reference, in its background section, to the Mass Media
Bureau's disposition of the issue that the Coalition is now
raising. Order at p 5, J.A. at 189. But the "mere fact that
the Commission discusses an issue does not mean that it was
provided a meaningful 'opportunity to pass' on the issue."
Bartholdi, 114 F.3d at 280; see also Time Warner, 144 F.3d
at 79-80. Only a discussion offered in response to someone's
argument--such as petitioner's, another party's, or a Com-
missioner's--qualifies. See Bartholdi, 114 F.3d at 280. Our
reference in Petroleum Communications, Inc. v. FCC, 22
F.3d 1164 (D.C. Cir. 1994), to instances where the Commis-
sion "considered the issue ... on its own motion," id. at 1170,
appears to be confined to cases where a dissenting commis-
sioner posed the challenge.

The obstacles for the two remaining barred claims are
more straightforward. The Coalition itself concedes, Reply
Br. at 21 n.42, that it never raised its claim that the Commis-
sion's failure to alert interested parties that it might modify
the Association's licenses when it changed the relevant Tables
of Allotments was a violation of the Administrative Procedure
Act's notice requirements. See 5 U.S.C. s 553(b). And the
Coalition identifies no place where it objected that the Associ-
ation's proposal reduced the number of reserved digital chan-
nels in Buffalo, New York because the original table placed
asterisks next to both Channel 32 and Channel 43 (a superfi-
cially valid proposition that the Association, rightly or wrong-
ly, explained as having resulted from a pre-existing typo-
graphical error in the original digital Table of Allotments, see
Petition for Rule Making, J.A. at 2 n.1). No party made this
argument below and the Coalition cannot raise it now.

 None of the exceptions to s 405's exhaustion requirement
is available for these three claims. See Washington Ass'n for
Television & Children, 712 F.2d at 681-83. The Commission
is not obliged to guess what arguments might be before it;
thus we move on without reaching the merits of these claims.

* * *

Surviving are the Coalition's objections to the Commission's
rejection of two counterproposals that the Coalition had made
to the Notice of Proposed Rule Making on the Association's
channel-swapping proposal. The first asked the Commission
to reserve both of the Association's channels for noncommer-
cial use. The second asked the Commission to reserve all
unreserved stations in the nation that were being used for
noncommercial use. See J.A. at 59.

The Commission acknowledged that the Mass Media Bu-
reau did not specifically address the first proposal but said
that any error was harmless for several reasons. See Order
at p 11, J.A. at 191. On appeal, the Coalition's opening brief
challenges only the Commission's point that "a third party
may not petition for a change in another station's authoriza-
tion, particularly if the licensee has disavowed an interest in
the particular proposed change." Id. But the Coalition cites
no case or Commission rule that would suggest otherwise--
except in cases, see Reply Brief at 16-17 n.31, where a
licensee or potential licensee of a nearby channel claimed that
an existing license would, in the absence of modification,
create interference, and thus mutual exclusivity within the
meaning of Ashbacker Radio Corp. v. FCC, 326 U.S. 327
(1945). Yet the Coalition did not contest the Commission's
reading of Ashbacker as inapplicable to its proposal until its
Reply Brief, and that, as we have said many times, is too late
for a new argument. See United States v. Wilson, 240 F.3d
39, 45 (D.C. Cir. 2001).

The Bureau dismissed the second proposal--to impose
reserved status on all stations that are in noncommercial
use--stating that it "is not mutually exclusive with the Buffa-
lo proposal and is therefore not appropriately filed in this

proceeding." Bureau Order, 14 F.C.C.R. at 11,856 n.2. The
Commission observed that the issue should be "raised as a
general rulemaking, not as an issue to be resolved in an
adjudicatory proceeding such as this." Order at p 12, J.A. at
191.

The Commission's dismissal of these two counterproposals
was reasonable and adequately explained. See Motor Vehicle
Manufacturers Ass'n of the United States v. State Farm
Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983). There is no
sense at all in the claim that the Commission's action here is
inconsistent with its decision in In re Deletion of Noncom-
mercial Reservation of Channel *16, 482-488 MHz, Pitts-
burgh, Pennsylvania, 11 F.C.C.R. 11,700 (1996). The propos-
al there involved a deletion of one of two reserved channels,
effecting a net reduction; here there was no such reduction.

The Coalition's petition is

Denied.