United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2004 Decided December 28, 2004
NO. 03-1444
NEW JERSEY TELEVISION CORPORATION,
APPELLANT
V.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
Appeal of an Order of the
Federal Communications Commission
Stuart W. Nolan, Jr. argued the cause for appellant. With
him on the briefs was Barry D. Wood.
Stanley R. Scheiner, Counsel, Federal Communications
Commission, argued the cause for appellee. On the brief were
John A. Rogovin, General Counsel, Daniel M. Armstrong,
Associate General Counsel, and C. Grey Pash, Jr., Counsel.
Before: HENDERSON and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: New Jersey Television
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Corporation (“NJTV”) appeals from a Federal Communications
Commission order dismissing its application to build a low-
power television broadcast station. The FCC ordered dismissal,
seventeen years after NJTV filed, because the station would
unduly interfere with a full service television station on the same
channel. New Jersey Television Corporation (NJTC), 18 FCC
Rcd 24409, 24409 (2003) (citing 47 C.F.R. § 74.706). NJTV
now requests us to order the FCC to keep the application on file
and give it preferential consideration if the channel becomes
available again. Alternatively, NJTV requests an order of
“displacement relief”—permission that the Commission in some
cases grants licensees and permittees to modify their
broadcasting to reduce interference and thus preserve their
broadcast entitlement—for which it would have been eligible
had the FCC granted the application promptly. NJTV lacks
standing to make the first request and failed to assert the second
before the Commission clearly enough to meet the requirements
of 47 U.S.C. § 405(a). Accordingly, we dismiss the appeal.
* * *
NJTV applied in 1981 to build a low-power station on
Channel 42 in Cherry Hill, New Jersey. In 1983, pursuant to
§ 309(i) of the Communications Act, 47 U.S.C. § 309(i), the
FCC established lotteries—in lieu of comparative hearings—to
grant such licenses when mutually exclusive applicants filed.
Three years later, the FCC accepted NJTV’s application for
filing and held a lottery. NJTV lost, but the lottery became moot
in 1998. That year, the FCC granted Channel 42 to WTXF for
use in that station’s transition from analog to digital
broadcasting; it then dismissed both the lottery winner’s and
NJTV’s applications. WTXF may operate one analog and one
digital channel until the digital transition concludes, at which
point WTXF will return one channel to the FCC. See 47 U.S.C.
§ 309(j)(14). NJTV petitioned for reconsideration, which the
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FCC staff denied. The FCC affirmed the dismissal in 2003, and
NJTV now appeals.
Our analysis begins with “[t]he requirement that jurisdiction
be established as a threshold matter.” Steel Co. v. Citizens for
a Better Environment, 523 U.S. 83, 94 (1998). The priority for
jurisdictional issues, however, doesn’t control the sequence in
which we resolve non-merits issues that prevent us from
reaching the merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 584-85 (1999); see also Grand Council of the Crees v.
FERC, 198 F.3d 950, 954 (D.C. Cir. 2000). One such issue is
Article III standing, the familiar elements of which are (1) injury
in fact, (2) causation, and (3) redressability. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). Apropos injury in fact,
the harm must be “concrete and particularized . . . and actual or
imminent, not conjectural or hypothetical.” Id. (citations and
internal quotation marks omitted). Loss of an opportunity to
compete for a benefit may be an injury in fact if it is not merely
“illusory.” Ranger Cellular v. FCC, 348 F.3d 1044, 1050 (D.C.
Cir. 2003).
NJTV here asserts “an interest in not being exposed to
competing proposals in a prohibitive auction scenario.” App.
Br. at 17. In other words, if WTXF returns Channel 42 to the
FCC and the FCC makes Channel 42 available again, NJTV
hopes that the Commission will assign the channel to one of the
undismissed applicants from the 1986 lottery. With NJTV being
evidently the only such applicant (if it prevails here), its
prospects of securing the channel would be superb.
This claim is something of an upgrade from what NJTV
sought explicitly from the Commission, which was merely that
its application be kept on file. But that deficiency doesn’t in
itself undermine NJTV’s assertion of standing here, as the
Article III requirement “kicks in” only “[w]hen the petitioner
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later seeks judicial review.” See Sierra Club v. EPA, 292 F.3d
895, 899 (D.C. Cir. 2002). The question remains whether any
combination of fact or doctrine, presented in the administrative
record or before the court, puts flesh on NJTV’s notion that
being kept on file would have had a real prospect of leading to
preferential treatment. Id. at 899-901. No such combination
appears.
The digital transition may not end at a precisely foreseeable
time, but it will end. An interest in the enforcement of cut-off
rules, which is what NJTV is really asserting, nevertheless “is
just that—an interest, not a vested right.” Bachow
Communications, Inc. v. FCC, 237 F.3d 683, 688 (D.C. Cir.
2001). Even so, if the FCC had a policy of protecting the
interests of parties who prevailed under ancient cut-off rules and
competitions, NJTV’s prospects of securing the desired
entitlement still might be ranked a “realistic possibility.” See
Ranger Cellular, 348 F.3d at 1050.
But NJTV points to no such policy, and we can discern
none. Indeed, on the very day it dismissed NJTV’s application,
the Mass Media Bureau unceremoniously threw out the lottery
winner’s as well. Further, the Commission appears to have a
practice of moving on from obsolete allocation systems when
new ones become available. Cf. Bachow, 237 F.3d at 686.
Finally, 47 U.S.C. § 309(j)(1) seems to require auctioning
generally, subject to exceptions that appear not to include low-
power television. See § 309(j)(2). The FCC has in fact read
§ 309(j) as placing low-power stations within the auction
process. In re Amendment of Parts 73 and 74 of the
Commission’s Rules To Establish Rules for Digital Low Power
Television, Television Translator, and Television Booster
Stations and To Amend Rules for Digital Class A Television
Stations, 19 FCC Rcd 19331, at ¶ 163, 2004 FCC LEXIS 5632
(2004). We of course do not prejudge the validity of this
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conclusion, but it is ample—even if it were later found to be an
invalid reading of § 309(j)—to demolish any idea that the
Commission generally preserves the results of ancient lotteries
in amber. NJTV has come nowhere near showing that the
victory it desires is a “realistic possibility.”
NJTV next requests the displacement relief to which it
would have been entitled had the FCC granted the application by
1997—when the relevant regulation protecting digital channels
took effect. See 47 C.F.R. § 74.706. Of course, the FCC must
be afforded an “opportunity to pass” on an appealable issue as
“a condition precedent to judicial review.” 47 U.S.C. § 405(a);
see BDPCS, Inc. v. FCC, 351 F.3d 1177, 1182 (D.C. Cir. 2003).
If the disputed issue was not raised before the FCC, we will
nonetheless review it if “a reasonable Commission necessarily
would have seen the [issue] as part of the case presented to it.”
Time Warner Entertainment Co. v. FCC, 144 F.3d 75, 81 (D.C.
Cir. 1998).
NJTV failed to satisfy § 405(a). In its petition for
reconsideration, NJTV did not indicate that its request for
displacement relief arose from a claim of unreasonable FCC
delay. The theory crystallized slightly in NJTV’s application for
full Commission review, which alleged that NJTV “would have
been unquestionably eligible for a displacement frequency” had
the FCC not delayed processing. The solution NJTV proposed,
however, was for the FCC to “at least give NJTV the
opportunity to pursue its dream of New Jersey-oriented service
once adequate spectrum . . . becomes available again.” That
request was too vague to provide the FCC an opportunity to pass
on the idea that the FCC’s delay had been so unreasonable as to
entitle NJTV to the remedy of being treated as if it had prevailed
in the initial competition. See Bartholdi Cable Co., Inc. v. FCC,
114 F.3d 274, 279 (D.C. Cir. 1997) (“The Commission need not
sift pleadings and documents to identify arguments that are not
stated with clarity by a petitioner.”) (internal quotation marks
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and citation omitted).
Accordingly, the appeal is
Dismissed.