N Amer Catholic Educ v. FCC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2006 Decided January 31, 2006

No. 04-1384

NORTH AMERICAN CATHOLIC EDUCATIONAL PROGRAMMING
FOUNDATION, INC.,
APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE

CLARK COUNTY SCHOOL DISTRICT,
INTERVENOR

Appeal of an Order of the
Federal Communications Commission

Eric H. Zagrans argued the cause for appellant. On the
briefs was Howard J. Barr.

Gregory M. Christopher, Counsel, Federal Communications
Commission, argued the cause for appellee. With him on the
brief were Samuel L. Feder, General Counsel, Richard K.
Welch, Associate General Counsel, and Daniel M. Armstrong,
Associate General Counsel. Roberta L. Cook, Counsel, entered
an appearance.
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Todd Stansbury argued the cause for intervenor. With him
on the brief was Eve Klindera Reed.

Before: SENTELLE, Circuit Judge, EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: The North American Catholic
Educational Programming Foundation (“the Foundation”)
petitions for review of a decision by the Federal
Communications Commission (“FCC” or “the Commission”).
The Commission denied the Foundation’s licensing application
for Instructional Television Fixed Services (“ITFS”) and instead
granted the license to the Clark County School District
(“CCSD” or “the District”). The Foundation contends the FCC
unlawfully waived the applicability of a rule limiting CCSD to
only four ITFS channels. However, we lack jurisdiction over
the Foundation’s petition because it was untimely filed. We
therefore dismiss the petition for review.

I

ITFS licenses empower competing broadcasters—such as
the Foundation and the District—to provide educational and
cultural programming to schools, hospitals, nursing homes,
training centers, clinics, and rehabilitation centers. The FCC is
statutorily obligated to dole out ITFS licenses so “as to provide
a fair, efficient, and equitable distribution of” the microwave
spectrum. 47 U.S.C. § 307(b). Pursuant to this statutory
mandate, the Commission has promulgated rules that limit each
licensee to no more than four ITFS channels per market. See 47
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C.F.R. § 74.902(d) (1993).1 If a licensee seeks licenses to
operate more than four ITFS channels, it must petition for a
waiver. See In re Amendment of Part 74 of the Commission’s
Rules & Regulations in Regard to the Instructional Television
Fixed Service, 98 F.C.C. 2d 925, 933 (1984) (“Waiver Order”).
“Such requests must include a complete description of how the
additional channels will be used for traditional ITFS purposes
and why present channel capacity is insufficient to
accommodate the additional needs. The waiver burden will be
exceedingly high particularly in areas where a large demand for
channels exists.” Id.

On May 13, 1992, the Foundation applied for an ITFS
license to serve the Henderson, Nevada market. Eighteen
months later, the FCC issued a public notice regarding the
Foundation’s application and called for competing applications
(if any) to be filed by December 30, 1993. On December 30,
1993, CCSD filed a competing application, along with a waiver
request, because the District already owned licenses for 8 ITFS
channels. On April 21, 1997, the FCC’s Mass Media Bureau
(“MMB”) concluded that CCSD was the comparatively superior
licensee for the Henderson, Nevada ITFS license. See In re
Applications of N. Am. Catholic Educ. Programming Found.,
Inc., Henderson Nevada, 12 F.C.C.R. 24,449, 24,450-51 (1997).
Accordingly, the MMB granted the District’s application (along
with its waiver request) and denied the Foundation’s application.
Id. at 24,453. More than six years later, on September 11, 2003,
the full Commission released an order denying the Foundation’s
petition for review. In re Clark County Sch. Dist., 18 F.C.C.R.

1
In 2004, the Commission prospectively amended and transferred its
four-channel limit. See In re Amendment of Parts 1, 21, 73, 74 and
101 of the Commission’s Rules, 19 F.C.C.R. 14,165, 14,325 (2004).
The changes to the four-channel limit, which is now codified at 47
C.F.R. § 27.5(i)(3)(ii), do not affect this case.
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18,815 (2003) (“Licensing Order”). On October 8, 2004, the
full Commission declined to reconsider its decision. In re
Application of Clark County Sch. Dist., 19 F.C.C.R. 20,169
(2004) (“Reconsideration Order”).

Thirty-two days after the Commission released its
Reconsideration Order, the Foundation filed a notice of appeal
under 47 U.S.C. § 402(b)(1). After this Court issued an order to
show cause why the appeal should not be dismissed as untimely,
the Foundation refashioned its argument as a petition for review
of the grant of the District’s waiver application under 47 U.S.C.
§ 402(a). Because § 402(b)(1) has a thirty-day deadline, while
§ 402(a) has a sixty-day deadline, the Foundation’s challenge is
timely only if brought under the latter.

II

It is well established that 47 U.S.C. § 402 “describes two
mutually exclusive channels for the review of FCC decisions.”
Vernal Enters., Inc. v. FCC, 355 F.3d 650, 655 (D.C. Cir. 2004);
see also Tribune Co. v. FCC, 133 F.3d 61, 66 & n.4 (D.C. Cir.
1998); Freeman Eng’g Assocs. v. FCC, 103 F.3d 169, 177 (D.C.
Cir. 1997); Friedman v. FCC, 263 F.2d 493, 494 (D.C. Cir.
1959). Section 402(b) provides for appeals of FCC orders in
nine enumerated situations, including licensing. For all other
final orders of the Commission, § 402(a) provides that review
shall be sought through the general petition process prescribed
in 28 U.S.C. §§ 2341-2351. Under § 402(b), an “appeal” must
be filed in this Court within thirty days of the date of public
notice of the order at issue. See 47 U.S.C. § 402(c). By
contrast, a “petition” for review under § 402(a) must be filed
within sixty days of the date of public notice. See 28 U.S.C. §
2344. Under either provision, an untimely appeal or petition
“must be dismissed” for lack of jurisdiction. Waterway
Commc’ns Sys., Inc. v. FCC, 851 F.2d 401, 405 (D.C. Cir. 1988)
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(emphasis in original (citation and internal quotations omitted)).

The Foundation contends that our jurisdiction is governed
by § 402(a). In the Foundation’s view, the Licensing Order can
be bifurcated into a “waiver decision” (which is challengeable
under § 402(a)) and a “licensing decision” (which is
challengeable under § 402(b)(1)). Because the petition is
limited to challenging the Commission’s “waiver decision,” the
Foundation argues that § 402(a) is applicable and that the
petition for review was timely.

We reject the Foundation’s argument because it does
violence to the statutory text. Congress carved out a specific
provision—§ 402(b)(1)—to govern “decisions and orders”
affecting licensing. As a result, the Licensing Order is
challengeable only under subsection (b), not the generally
applicable subsection (a). See Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 384 (1992) (“[I]t is a commonplace of
statutory construction that the specific governs the general.”);
see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 445 (1987). Moreover, § 402(a) applies only to final
orders, see 28 U.S.C. § 2342(1), and the “waiver decision” was
not a “final order.” See Bennett v. Spear, 520 U.S. 154, 178
(1977) (holding an agency’s action is final and reviewable only
if, inter alia, it “mark[s] the ‘consummation’ of the agency’s
decisionmaking process–it must not be of a merely tentative or
interlocutory nature”) (quoting Chicago & Southern Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). As the
Commission has previously ruled, a licensee’s waiver petition
(and the FCC’s decision on it) is incident to a larger licensing
proceeding. See Waiver Order, 98 F.C.C. 2d at 933 (ruling that
waiver requests must be submitted by “ITFS applicants and
licensees seeking more than one channel group”). Accordingly,
a “waiver decision” does not “mark the ‘consummation’ of the
agency’s decisionmaking process.”
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The absence of finality is sufficient to preclude our
jurisdiction over the Foundation’s petition for review. See
Shurberg v. FCC, 1998 WL 202139, *1 (D.C. Cir. Mar 31,
1998) (per curiam); cf. Natural Res. Def. Council, Inc. v.
Nuclear Regulatory Comm’n, 680 F.2d 810, 815-17 (D.C. Cir.
1982). As an independent basis for dismissing the petition for
review, we note that “[j]urisdiction for review of FCC licensing-
related decisions is governed by § 402(b).” Waterway
Commc’ns Sys., 851 F.2d at 403 (emphasis added). This
jurisdiction includes Commission decisions which involve issues
“ancillary” to the grants or denials of licenses. For example, in
Tomah-Mauston Broad. Co., Inc. v. FCC, 306 F.2d 811, 812
(D.C. Cir. 1962), we held that a Commission order “ancillary”
to the grant of a construction permit . . . is reviewable under
Section 402(b)(6).” In contrast, in Freeman Engineering, we
held the denial of a licensing “preference” was not reviewable
under § 402(b) because “[t]he Commission does not grant
licenses at the time a pioneer’s preference is awarded. Nor does
the grant of a preference irrevocably commit the Commission to
grant a license.” 103 F.3d at 177. In this case, the
Commission’s grant of a rule waiver to CCSD was ancillary to
the ultimate licensing decision, as evidenced in part by the fact
that the waiver and licensing decisions were rendered
simultaneously.

Furthermore, the Commission’s decision to grant CCSD’s
waiver request was a logically necessary prerequisite to the
Commission’s decision to grant the District’s ITFS licensing
application. Without the FCC’s “waiver decision,” CCSD
would have lost the “licensing decision” because of the
Commission’s four-channel limit. Thus, the two halves of the
Licensing Order operated together to grant the District’s ITFS
application. Accordingly, we hold that the Licensing Order, as
an inseparable whole, is challengeable (if at all) only under §
402(b)(1).
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Because a “decision or order” may be challenged under §
402(b) only “within thirty days from the date upon which public
notice is given of the decision or order complained of,” 47
U.S.C. § 402(c), and because the Foundation filed its appeal
thirty-two days after receiving notice that the Licensing Order
was final, the Foundation’s petition “must be dismissed” for lack
of jurisdiction. Waterway Commc’ns Sys., 851 F.2d at 405
(emphasis in original (citation and internal quotations omitted)).

III Conclusion

In sum, the Commission’s “waiver decision” was
inextricably tied to its “licensing decision,” and therefore, the
Licensing Order as a whole is governed by § 402(b)(1). The
Foundation missed that subsection’s 30-day filing deadline, and
therefore, the appeal must be dismissed.

So ordered.