United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2009 Decided April 28, 2009
No. 08-1066
EAGLE BROADCASTING GROUP, LTD.,
APPELLANT
v.
FEDERAL COMMUNICATIONS COMMISSION,
APPELLEE
Appeal of an Order of the Federal Communications
Commission
Howard M. Weiss argued the cause for appellant. With him
on the briefs were Peter Tannenwald and Davina S. Sashkin.
Daniel M. Armstrong, Associate General Counsel, Federal
Communications Commission, argued the cause for appellee.
With him on the brief were Matthew B. Berry, General Counsel,
Joseph R. Palmore, Deputy General Counsel, and Pamela L.
Smith, Counsel.
Before: ROGERS and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 1996, Congress passed
§ 403 of the Telecommunications Act of 1996, Pub. L. No. 104-
2
104, 110 Stat. 56 (“the Telecommunications Act”), which
amended the Communications Act of 1934, 47 U.S.C. § 151 et
seq. (“the Act”). Section 403, as enacted in 1996, added a new
subpart (g) to § 312 of the Act, providing in relevant part:
If a broadcasting station fails to transmit broadcast signals
for any consecutive 12-month period, then the station
license granted for the operation of that broadcast station
expires at the end of that period, notwithstanding any
provision, term, or condition of the license to the contrary.
47 U.S.C. § 312(g) (1996). In 2004, after the occurrence of the
events giving rise to this case, Congress added the following
language to the provision:
except that the Commission may extend or reinstate such
station license if the holder of the station license prevails in
an administrative or judicial appeal, the applicable law
changes, or for any other reason to promote equity and
fairness.
47 U.S.C. § 312(g) (2004).
At issue in this case is a decision by the Federal
Communications Commission (“FCC” or “Commission”)
declaring that the broadcast license of Eagle Broadcasting
Group, Ltd. (“Eagle”) had expired pursuant to § 312(g). Eagle
was licensed to operate radio station KVEZ(FM) from a site
known as “Black Peak” (the “Black Peak site”) but ceased
broadcasting in June 2001 due to interference and land use
issues. The FCC granted Eagle a temporary license to operate
from its studio, but the station again went silent on December
20, 2002. Subsequently, Eagle applied to the Commission for
a construction permit to broadcast from a new site in the
Buckskin Mountains (the “Buckskin site”), but it failed to obtain
the necessary clearance from the Federal Aviation
Administration (“FAA”) and the FCC. Eagle then failed for 12
3
consecutive months to resume broadcasting from its licensed site
at Black Peak.
When the FCC determined that Eagle had not resumed
broadcasting as of December 20, 2003, it declared that Eagle’s
license had expired pursuant to § 312(g). Eagle protested,
arguing that its license had not expired because it had
transmitted broadcast signals from the Buckskin site in
November 2003. Eagle contended that it did not matter that its
broadcast transmissions from the Buckskin site were
unauthorized. The FCC rejected Eagle’s petitions for
reconsideration. Pointing to § 301 of the Act, the Commission
noted that the Act clearly prohibits any person from transmitting
broadcast signals except with a license granted by the
Commission. The FCC therefore held that Eagle’s unauthorized
broadcasts from the Buckskin site were insufficient to avoid the
strictures of § 312(g). See Eagle Broadcasting Group, Ltd., 23
F.C.C.R. 588 (2008) [hereinafter, Order].
Eagle’s principal argument on appeal is that the station did
“transmit broadcast signals” within the meaning of § 312(g)
before the one-year deadline. Eagle argues that Congress would
have inserted the word “authorized” in the statute had it intended
for the provision to be interpreted as the FCC has interpreted it
in this case. According to Eagle, the plain language of the
statute allows a station to transmit any signals from any location
to avoid the automatic expiration of a license under § 312(g).
We disagree. The FCC acted well within its statutory authority
and pursuant to reasoned decisionmaking in rejecting Eagle’s
claim that unauthorized broadcasts by unlicensed stations are
adequate to avoid license termination under § 312(g). And,
contrary to Eagle’s claims, the FCC’s action was neither
arbitrary and capricious nor an abuse of discretion.
4
I. BACKGROUND
A. Statutory and Regulatory Background
Section 301 of the Act bans any person from transmitting
signals by radio “except under and in accordance with this
chapter and with a license . . . granted under the provisions of
this chapter.” 47 U.S.C. § 301. The Act defines broadcasting as
the “dissemination of radio communications intended to be
received by the public.” Id. at § 153(6).
Prior to the enactment of the Telecommunications Act, the
Commission addressed “silent stations” – radio stations which
were authorized to broadcast but were silent – in one of two
ways. The FCC would either grant the station temporary
authority to remain off the air if it found such a grant to be in the
public interest, or it would initiate a revocation proceeding,
which often included lengthy procedural requirements such as
an evidentiary hearing. See Implementation of Section 403(l) of
the Telecommunications Act of 1996 (Silent Station
Authorizations), 11 F.C.C.R. 16,599, 16,599 (1996) [hereinafter,
Silent Station Authorizations].
In 1996, the Telecommunications Act added a new
subsection to the Act, providing for the automatic expiration of
a station’s license when it failed to broadcast for 12 months.
The new provision stated:
If a broadcasting station fails to transmit broadcast signals
for any consecutive 12-month period, then the station
license granted for the operation of that broadcast station
expires at the end of that period, notwithstanding any
provision, term, or condition of the license to the contrary.
47 U.S.C. § 312(g) (1996). After the occurrence of the events
giving rise to this case, Congress amended § 312(g) by adding
language giving the Commission discretion to “extend or
reinstate” a license in order to, inter alia, “promote equity and
5
fairness.” See 47 U.S.C. § 312(g) (2004) (amended by
Consolidated Appropriations Act, 2005, Pub. L. No. 108-447,
118 Stat. 2809 (2004)).
Because broadcast towers may interfere with air traffic
safety, § 303(q) of the Act directs the Commission to mandate
broadcast tower safety features, such as “painting and/or
illuminination,” when “there is a reasonable possibility” that a
tower “may constitute . . . a menace to air navigation.” 47
U.S.C. § 303(q). The Commission’s rules provide that an
applicant who proposes to construct a broadcast antenna with
certain specifications must notify the FAA of the proposed
construction. See generally Construction, Marking, and
Lighting of Antenna Structures, 47 C.F.R. § 17.1, et seq. (2009).
The rules make it clear that:
(a) Effective July 1, 1996, the owner of any proposed or
existing antenna structure that requires notice of proposed
construction to the Federal Aviation Administration must
register the structure with the Commission. . . .
(b) . . . . [E]ach owner of a proposed structure . . . must
submit a valid FAA determination of “no hazard.”
....
(d) If a final FAA determination of “no hazard” is not
submitted along with FCC Form 854, processing of the
registration may be delayed or disapproved.
Id. § 17.4.
B. Facts
Through its owner, Maurice W. Coburn, Eagle acquired
control of radio station KVEZ(FM) in 1995. KVEZ(FM) was
licensed to operate from a site known as Black Peak in the
community of Parker, Arizona, but ceased broadcasting from the
site on June 23, 2001 due to interference and land use issues.
6
See Order, 23 F.C.C.R. at 589; Letter from Maurice W. Coburn
to Secretary of FCC (June 5, 2002), reprinted in Joint Appendix
(“J.A.”) 145. On February 15, 2002, Eagle filed an application
with the FCC for a construction permit to move to the Buckskin
site. See Order, 23 F.C.C.R. at 589; Application for
Construction Permit, J.A. 146.
On April 24, 2002, the Commission’s staff (the “Staff”)
notified Eagle of a deficiency in the Buckskin site application.
Order, 23 F.C.C.R. at 589. Eagle had failed to respond to a
question that asked for a Commission tower registration number
– a number an applicant receives after a FAA determination that
the proposed broadcasting facility poses no hazards to air
navigation. Because the Buckskin site is within the glide scope
of air traffic using the Avi Suquilla Airport in Parker, Arizona,
the FCC stated that FAA approval of the proposed tower was
necessary. Id. at 594; FCC’s Br. at 6. The Staff informed Eagle
that “public safety factors required both FAA approval and
Commission registration of the tower proposed in the Buckskin
Application.” Order, 23 F.C.C.R. at 589.
On June 5, 2002, instead of supplying the requested
information, Eagle requested special temporary authority
(“STA”) to broadcast the signal of KVEZ(FM) from the
station’s studio in Parker, Arizona. Letter from Maurice W.
Coburn to Secretary of FCC (June 5, 2002), J.A. 145. The
request explained that the Black Peak broadcast site was no
longer available due to interference and land use restrictions.
Although a new site had been identified, approval would take
more time than Eagle could afford under § 312(g)’s one-year
silence deadline; thus, Eagle requested authority to temporarily
broadcast from its studio location. Id. The Commission granted
the STA on June 19, 2002, but reminded Eagle that, because the
station had been silent since June 23, 2001, the license would
expire as a matter of law if it did not resume broadcasting on or
before June 23, 2002. Letter from Edward P. De La Hunt,
7
Associate Chief of FCC Audio Division, to Maurice W. Coburn
(June 19, 2002), J.A. 142-43.
On July 10, 2002, Eagle notified the FCC that the station
had “recommenced its regular broadcast under the [STA]
granted by the [FCC]” and noted that “[a]s FCC files will
indicate, KVEZ is awaiting approval of an alternate site, so that
relocation construction can begin.” Letter from Maurice W.
Coburn to Edward P. De La Hunt (June 28, 2002), J.A. 141.
However, the STA expired on December 19, 2002, and on
December 20, 2002, KVEZ(FM) again went silent. In a letter
written that day, Eagle notified the FCC that the station was
silent as of noon. The letter reported:
Our reason for going temporarily dark is that we are in the
process of moving to our new transmitter site as previously
approved by the F.C.C.
While we regret this brief period of darkness, it seems
unavoidable under the circumstances. As your files will
indicate, we were asked, after the F.C.C. had already
cleared us to move, to obtain a [clearance] from the FAA
(we had been under the impression that such a [clearance]
would not be needed). While we filed our request
promptly, it took the FAA several months to finally give its
OK.
....
We are proceeding with all deliberate speed to make
the required upgrade to full power status, at the approved
location, but we are requesting permission to remain dark
for 30 to 60 days while all necessary construction and
installations are completed.
Letter from Maurice W. Coburn to Edward P. De La Hunt (Dec.
20, 2002), J.A. 140.
8
On January 23, 2003, the Commission again requested that
Eagle supplement the incomplete application for the Buckskin
site. Letter from Rodolfo F. Bonacci, Supervisory Engineer of
FCC Audio Division, to Eagle (Jan. 23, 2003), J.A. 138.
Specifically, the letter requested that Eagle register the proposed
antenna structure with the Commission, and reminded Eagle that
FAA approval was “necessary in order to obtain FCC antenna
structure registration.” Id. The FCC advised that action on the
application would be withheld until Eagle responded. Finally,
it warned that Eagle’s failure to respond would “result in the
dismissal of the application” pursuant to a Commission rule
which allows an application to be dismissed for failure to
respond to an official request for additional information. Id. at
139; see 47 C.F.R. § 73.3568(a)(1).
Eagle still failed to respond with documentation of FAA
approval. Instead, Eagle sent a series of letters to the FCC
implying that FAA approval had either been obtained or was
unnecessary. For example, on February 26, 2003, Eagle wrote
another letter reporting on the “progress in moving KVEZ to its
new approved site.” Letter from Maurice W. Coburn to Edward
P. De La Hunt (Feb. 26, 2003), J.A. 137. The letter noted: “As
you will no doubt recall, after your office approved of our new
transmitter-antenna site, it took several months to get clearance
from the FAA and then LaPaz County. We are working with all
due diligence to complete the move and installation.” Id.
Additionally, on November 24, 2003, Eagle notified the
FCC that the station had “completed its installation of a new
transmitter and antenna at the previously approved site [n]orth
of the city of license, Parker, Arizona.” Letter from Maurice W.
Coburn to Edward P. De La Hunt (Nov. 24, 2003), J.A. 136.
The letter stated:
We are pleased to inform the Commission that 15:30 hours
on November 22, 2003, marked the resumption of regular
broadcasting activities of KVEZ-FM in Parker, Arizona.
9
....
The patience and assistance of your Staff throughout our
many relocation problems is most appreciated.
Id.
And finally, on November 26, 2003, Eagle wrote to the
Commission and stated that the FAA had informed Eagle that
“since the station antenna site was not within the flight path of
the Parker area airport, and not of significant height to either be
lighted or painted with the orange/white pattern, that no special
authorization was required.” Email from Jerry Hale, Consultant
to Eagle, to Rodolfo E. Bonacci, Supervisory Engineer of FCC
Audio Division (Nov. 26, 2003), J.A. 134-35.
By reply sent on December 9, 2003, the Commission
requested Eagle to submit a copy of the FAA’s letter to “prove
what you said below is correct,” i.e., that no FAA authorization
was necessary. Email from Khoa Tran, FCC to Jerry Hale (Dec.
9, 2003), J.A.134. The letter also notified Eagle that, because
the station had been silent since December 20, 2002, the “license
is going to expire on 12/20/03.” Id. Eagle’s consultant
responded the next day that he would “send a copy of the FAA
information this week” and stated that “Mr. Coburn has notified
the FCC in writing and by phone, as well as e-mail which I sent
that KVEZ FM Parker, Arizona had returned to the air as of
November 22, 2003.” Email from Jerry Hale to Khoa Tran
(Dec. 10, 2003), J.A. 134. The email requested that the FCC
“verify that the Commission has received the appropriate notice
so that the license will not expire on December 20. If we need
to do any additional filings, please advise.” Id.
Eagle never submitted any FAA letter or any documentation
indicating that it had received “clearance” from the FAA with
respect to the Buckskin site application. The Staff contacted the
FAA on its own in June 2004 and was informed that the FAA
“had no record of receiving any application or issuing any
10
determination for the site specified in the Buckskin
Application.” Order, 23 F.C.C.R. at 594 n.35. Rather, the FAA
had only “provided an August 7, 2002 determination of no
hazard to Eagle for a tower approximately 229 miles away from
the Buckskin site.” Id. at 594.
In early January 2004, the Staff received a complaint that
station KVEZ(FM) was operating from a site the FCC had not
approved. Id. at 590. On January 28, 2004, the Staff contacted
the station for clarification. Email from Glenn Greisman,
Industry Analyst for FCC Media Bureau-Audio Division, to
Maurice W. Coburn (Jan. 28, 2004), J.A. 133. Eagle was
instructed to provide the Commission with a file number to
identify any “previously approved site.” Id. Maurice Coburn
and Eagle’s consultant each telephoned the Staff to report that
“the station was operating at the site proposed in the Buckskin
application.” Order, 23 F.C.C.R. at 590.
The FCC concluded that Eagle had not transmitted from its
place of license – the Black Peak site – for over one year.
Although Eagle represented that it was once again broadcasting,
it was indisputably operating from an unauthorized and
unlicensed facility. The Buckskin site application remained
pending and Eagle had no authority to transmit broadcast signals
away from the Black Peak site. And Eagle had not received
FAA approval for operation of a broadcast tower at the
Buckskin site. On February 17, 2004, the Staff informed Eagle
that the pending Buckskin site application had been dismissed
as moot and the call letters (the identifying code letters for the
station assigned by the FCC) had been deleted because the
underlying license for the Black Peak site had expired as a
matter of law on December 21, 2003 pursuant to § 312(g).
Letter from Peter H. Doyle, FCC Audio Division Chief, to Eagle
(Feb. 17, 2004), J.A. 130 [hereinafter, Staff Decision]. The
Staff Decision explained: “A broadcaster cannot avoid the
statutory deadline set forth in § 312(g) by resuming operations,
11
as here, without an authorization, permanent or temporary, from
the Commission.” Id. at 131.
Eagle petitioned for reconsideration on March 18, 2004.
Petition for Reconsideration (“Reconsideration Petition”), J.A.
113. Eagle subsequently filed a supplement to the
Reconsideration Petition in light of Congress’ amendment to
§ 312(g), noting that “[t]he statute, as amended, now directs the
Commission to extend or reinstate broadcast licenses as
appropriate ‘to promote equity and fairness.’” Supplement to
Petition for Reconsideration (“Supplement”), J.A. 24. The
Reconsideration Petition, the Supplement, and two other
petitions filed by Eagle requesting license renewal were referred
to the Commission for review. Order, 23 F.C.C.R. at 588.
C. Order on Appeal
The Commission denied all four petitions. Order, 23
F.C.C.R. at 588. First, the Commission disagreed with Eagle’s
contention that “unauthorized transmissions are sufficient to
avoid the consequences of § 312(g).” Id. at 592. The
Commission explained:
Section 301 . . . provides that no person shall transmit radio
signals except in accordance with authority granted by the
Commission. It further provides that no license shall be
construed to create any right beyond the terms, conditions,
and authority of the license. The sanctions set forth in
Section 312 enforce these provisions. Section 312(g),
which establishes the specific sanction for extended failure
to broadcast, cannot be read to create an exception to
Section 301 licensing requirements. Indeed, if read to
permit unauthorized operation to avoid license expiration,
Section 312(g) would encourage violation of Section 301
and defeat its own purpose of ensuring timely construction
and operation of authorized facilities that serve the public.
12
Id. Thus, the Commission rejected Eagle’s claim that its
unauthorized transmissions from the Buckskin site were
sufficient to avoid license termination.
The Commission also rejected Eagle’s assertion that it
reasonably believed the transmissions from the Buckskin site
were authorized. Id. at 593. Eagle claimed that it believed the
Staff had erroneously determined that FAA approval was
required to construct the proposed tower at the Buckskin site,
and that this “mistake” had been resolved. The Commission
found that Eagle’s claim of an innocent mistake was inconsistent
with the facts. Noting the number of shifting theories Eagle had
presented regarding the issuance of a FAA air hazard
determination, the Order concluded that “Eagle’s claim that it
held an authorization to operate at Buckskin is frivolous.” Id. at
594.
Commission construction permits are written documents.
The Commission never issued, and therefore Eagle never
received, a construction permit or any other document
establishing that the Buckskin application had been granted.
To the contrary, as noted above, the staff advised Eagle in
writing that the application could not be granted until Eagle
supplied tower notification/registration information.
Eagle’s alleged belief that the application had been granted
by the fall of 2003 is also inconsistent with its consultant’s
contacts with the staff in November and December 2003 to
address the FAA-related deficiency that continued to
prevent staff action. Eagle’s pro se status at that time did
not exempt it from complying with Commission rules or
statutory provisions.
Id. at 594-95.
The Order also rejected Eagle’s claim that, under FCC case
precedent, Eagle should have been assessed a monetary
forfeiture, in lieu of license expiration, for unauthorized
13
operations. The FCC distinguished the forfeiture cases cited by
Eagle, saying that “Eagle fails to comprehend the critical
differences between rule violations and Section 312(g).” Id. at
596. The Commission noted that it had “discretion to shape
penalties for rule violations,” and distinguished the forfeiture
cases as inapplicable because “[t]hey do not address Section
312(g), focusing only on other rule violations.” Id.
Finally, the Commission rejected Eagle’s alternative request
for discretionary license reinstatement under the amended
§ 312(g). Id. at 599-600. The Commission first noted that
Eagle’s license expired on December 21, 2003, before the 2004
legislation was enacted. The Commission then concluded that,
in any event, Eagle had failed to qualify under the statute for
license reinstatement. Eagle had not obtained permission to
construct a tower or operate from the Buckskin site, and Eagle’s
claim that it was “confused” about the status of its permit was
not credible. The Commission also noted that the Staff had
warned Eagle about the risk of license expiration under
§ 312(g). The Order characterized Eagle’s claim that it had
resumed operations at an authorized site as “misleading” and
“false.” Id. at 601.
Eagle raises three central arguments on appeal. First, Eagle
asserts that § 312(g), by its plain terms, only prescribes license
expiration in cases of utter silence. Because it transmitted from
the Buckskin site, Eagle claims that it cannot be said that it
“fail[ed] to transmit broadcast signals” for a consecutive 12-
month period. Second, Eagle argues that the FCC’s action was
arbitrary and capricious because the Commission imposed a
monetary forfeiture, rather than license expiration, against other
similarly situated licensees who operated unauthorized facilities
for more than a 12-month consecutive period. Finally, Eagle
argues that the FCC should have reinstated its license under the
2004 amendment to § 312(g), which vests the Commission with
14
discretion to reinstate a license that has expired if doing so
would “promote equity and fairness.” 47 U.S.C. § 312(g).
II. ANALYSIS
A. Standard of Review
In order to determine whether the Commission permissibly
terminated Eagle’s license pursuant to § 312(g), the court
applies the familiar two-part test of Chevron USA Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
“Chevron instructs us to accord agency interpretations of
statutes they administer varying degrees of deference.” Nat’l
Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C.
Cir. 2007). Under Chevron Step One, the court examines the
statute de novo in order to determine “whether Congress has
directly spoken to the precise question at issue.” Chevron, 467
U.S. at 842. If so, “that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. However, “if
Congress has [not] directly spoken to the precise question at
issue,” the Court moves on to Chevron Step Two. Id. at 842.
Under Step Two, “[i]f Congress has explicitly left a gap for the
agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation. Such legislative regulations are given controlling
weight unless they are . . . manifestly contrary to the statute.”
Id. at 843-44. Where, on the other hand, the legislative
delegation to the agency is “implicit rather than explicit,” we
will uphold any “reasonable interpretation made by the
administrator” of the agency. Id. at 844.
Even when an agency’s construction of its statute passes
muster under Chevron, a party may claim that the disputed
agency action is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
15
Section 706(2)(A) of the APA provides that a
reviewing court shall “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). This is the
APA’s “catch-all” provision governing the scope and
standards of review, and the courts rarely draw any
meaningful distinctions between acts that are “arbitrary,
capricious, or an abuse of discretion.” Block v. Pitney
Bowes Inc., 952 F.2d 1450, 1454 (D.C. Cir. 1992).
“[A]rbitrary, capricious, [or] an abuse of discretion” review
under § 706(2)(A) is now routinely applied by the courts as
one standard under the heading of “arbitrary and
capricious” review. And it encompasses both review of the
factual basis of an agency’s action, see Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), and
review of an agency’s reasoning as distinguished from its
factfinding, see Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281, 285-86 (1974). Moreover, the
arbitrary and capricious standard governs review of all
proceedings that are subject to challenge under the APA.
See Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417,
422 (D.C. Cir. 1986). Thus, if an action is subject to review
under the APA, it does not matter whether it is a formal or
informal adjudication or a formal or informal rulemaking
proceeding – all are subject to arbitrary and capricious
review under § 706(2)(A).
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL
STANDARDS OF REVIEW – REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 167 (2007). “Normally, an
agency [action] would be arbitrary and capricious if the agency
has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it
16
could not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n of the United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (internal quotation marks and citation omitted).
Additionally, “an agency may not treat like cases differently.”
Freeman Eng’g Assocs., Inc. v. FCC, 103 F.3d 169, 178 (D.C.
Cir. 1997) (internal quotation marks and citation omitted). And
“an agency’s unexplained departure from precedent must be
overturned as arbitrary and capricious.” Comcast Corp. v. FCC,
526 F.3d 763, 769 (D.C. Cir. 2008).
As noted above, Eagle contends that the FCC “wrongly
interpreted 47 U.S.C. § 312(g) to require authorized
transmissions in order to avoid expiration of a licence.” Eagle’s
Br. at 12. Eagle also argues that the FCC’s action was arbitrary
and capricious because the agency treated Eagle differently than
other similarly situated licensees, id. at 22, and an abuse of
discretion because Eagle’s license should have been reinstated
pursuant to the 2004 amendment to § 312(g), id. at 27. We find
no merit in these claims.
B. Chevron Step One
Eagle argues that the FCC’s decision to cancel Eagle’s
license pursuant to § 312(g) should be invalidated under
Chevron Step One, because it is at odds with the plain meaning
of the statute. Under Chevron Step One, the court applies the
traditional tools of statutory construction in order to discern
whether Congress has spoken directly to the question at issue.
Chevron, 467 U.S. at 842-43. If this “search for the plain
meaning of the statute . . . . yields a clear result, then Congress
has expressed its intention as to the question, and deference is
not appropriate.” Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044,
1047 (D.C. Cir. 1997).
Eagle argues that § 312(g) only allows for license expiration
in the case of utter silence. Eagle was required to resume
17
broadcasting within one year of December 20, 2002 – the date
that it went silent – in order to avoid expiration under § 312(g).
The station purported to “resume broadcasting” on November
22, 2003. Focusing on the statutory language “fails to transmit
broadcast signals,” Eagle first emphasizes that the Act defines
broadcasting as “the dissemination of radio communications
intended to be received by the public.” 47 U.S.C. § 153(6).
Eagle then argues that “[t]here is no question that [it] operated
a radio transmitter and intended that its service be received by
the public.” Eagle’s Br. at 9. Thus, according to Eagle, the FCC
erred by reading a restriction into the statute that the broadcast
must be an authorized transmission. Eagle asserts: “Had it
intended to say what the FCC believes it intended, Congress
could have easily inserted the word ‘authorized’ between
‘transmit’ and ‘broadcast’ in the statute.” Eagle’s Br. at 15.
Eagle asks the court to interpret the omission of the word
“authorized” as a signal that Congress intended any broadcast to
count for the purposes of § 312(g).
There is no doubt that § 312(g) does not, by its plain terms,
state that unauthorized transmissions are sufficient to avoid
expiration pursuant to § 312(g). In other words, the statutory
text “fails to transmit broadcast signals” surely does not plainly
indicate that unauthorized and unlicensed broadcast
transmissions are sufficient to avoid the strictures of § 312(g).
The most that can be said is that § 312(g), standing alone, is
silent with respect to whether transmissions must be authorized
in order to avoid license expiration.
Actually, when § 312(g) is read in context, i.e., as a part of
the entire Act, Eagle’s “plain meaning” argument falls apart.
See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. Cir.
2008) (stating that the meaning of certain words and phrases
must be examined in context as part of the Chevron Step One
inquiry). Section 301 of the Act positively requires a purported
broadcaster to secure a license from the FCC to transmit
18
broadcast signals by radio. 47 U.S.C. § 301. Unlicensed radio
transmissions are not recognized under the Act. And nothing in
§ 312 says otherwise. It is therefore an understatement to say
that it strains credulity to suggest that the reference to
“broadcast signals” in § 312(g) includes unauthorized and
unlicensed transmissions.
Moreover, Eagle conceded at oral argument that its reading
of § 312(g) would allow a station to avoid expiration by
broadcasting from any site, even one that is thousands of miles
removed from the authorized location. Recording of Oral
Argument at 8:08. In other words, according to Eagle, the
company could have avoided license expiration by broadcasting
from a site in New York. Section 312(g) cannot be read to
plainly dictate this absurd result.
Section 312(g) refers only to broadcasters who have a
“station license” to transmit radio signals. As the parties
acknowledged at oral argument, Eagle’s license was specifically
limited to one permissible site of operation – Black Peak. When
Eagle failed to transmit from this place of license for more than
a year, its license expired by operation of law. Under the
statute, unauthorized and unlicensed transmissions are no better
than silence. If anything, the plain meaning of § 312(g) says just
the opposite of what Eagle contends.
C. Chevron Step Two
Even if we assume that § 312(g) does not admit of “plain
meaning” in support of the FCC’s construction, the agency’s
interpretation easily survives scrutiny under Chevron Step Two.
When, as in this case, “the legislative delegation to an agency on
a particular question is implicit rather than explicit . . . a court
may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an
agency.” Chevron, 467 U.S. at 844. We find the FCC’s
construction of § 312(g) eminently reasonable.
19
The FCC reasonably determined that § 312(g) must be read
in conjunction with § 301. Section 301 makes clear that
broadcast transmissions cannot occur except as authorized by a
FCC license. Indeed, a license to broadcast is the “central
requirement” of the Act. Ruggiero v. FCC, 317 F.3d 239, 245
(D.C. Cir. 2003). And § 312(g) creates no exception to § 301.
Moreover, as noted above, a FCC license specifies both the
licensee’s site and bandwidth. An unauthorized transmission is
neither condoned nor recognized by the Act. Rather, it is
prohibited. Thus, in assessing a licensee’s rights under § 312(g),
the FCC reasonably concluded that an unauthorized
transmission counts for nothing.
Eagle’s contention that the FCC’s position in this case is at
odds with the Commission’s 1996 order implementing § 312(g),
see Silent Station Authorizations, 11 F.C.C.R. 16,599, is not
persuasive. It is true that the implementing order does not
mention the need to operate from authorized facilities to avoid
the strictures of § 312(g). This proves nothing, however,
because the requirement of authorized transmissions is clear
from § 301.
Eagle quotes a portion of the implementing order that states:
“[t]he 1996 Act is clear that the relevant period of the silence is
that of the station. The period is not based on any particular
licensee or facility.” Eagle’s Br. at 21 (quoting Silent Station
Authorizations, 11 F.C.C.R. at 16,601). Eagle argues that this
language suggests that the FCC’s focus on the license status of
its facilities has no place in a § 312(g) inquiry. But Eagle
ignores the next sentence in the implementing order, which
states:
Accordingly, the assignment or transfer of a broadcast
license, the modification of the licensed facilities, special
temporary authorizations to remain silent (STAs), and other
transactions will not toll or extend the 12-month period,
notwithstanding any provision in any authorization to the
20
contrary. Neither can the Commission prevent the
automatic expiration of the license by waiver.
Silent Station Authorizations, 11 F.C.C.R. at 16,601. Rather
than suggesting that unauthorized transmissions were
permissible, the implementing order emphasized that expirations
under § 312(g) are mandatory and stressed that not even agency
actions could toll the 12-month period.
In sum, the Commission’s interpretation of § 312(g) easily
passes muster under Chevron Step Two.
D. The Commission’s Action Was Not Arbitrary and
Capricious
It is well understood that “an agency’s unexplained
departure from precedent must be overturned as arbitrary and
capricious.” Comcast Corp., 526 F.3d at 769. Eagle argues that
the Commission’s disputed action in this case was arbitrary and
capricious, because in other cases involving similar fact patterns
the Commission imposed monetary forfeitures against licensees
rather than declaring their licenses expired pursuant to § 312(g).
The Commission argues that the cases cited by Eagle are
factually distinguishable, in part because most did not involve
applications of § 312(g). In addition, all but one of the cases
cited by Eagle were staff decisions and thus had no binding
precedential effect. “[U]nchallenged staff decisions are not
Commission precedent, and agency actions contrary to those
decisions cannot be deemed arbitrary and capricious.” Id. at
770.
Only one case cited by Eagle, Maria L. Salazar, 19
F.C.C.R. 5050 (2004), involves a decision of the Commission.
Salazar is inapposite, however, because it did not involve the
application or enforcement of § 312(g). Eagle argues that this
“misses the point,” because the Commission’s failure to apply
§ 312(g) in Salazar was a sub silentio determination that
21
unauthorized transmissions are sufficient to avoid license
expiration under § 312(g). Eagle’s Br. at 25. We disagree.
In Salazar, the licensee was cited for a host of rule
violations, including transmitting from an unauthorized site.
However, the record does not indicate that the licensee failed to
transmit authorized broadcasts over a stretch of 12 months. In
fact, another order in the same case makes clear that the station
in Salazar was simultaneously transmitting from two locations
– one authorized and one unauthorized. Maria L. Salazar,
Notice of Apparent Liability, 17 F.C.C.R. 14,090, 14,090-91
(2002). Because the station in Salazar never ceased transmitting
from an authorized location, it was not silent, and the
Commission’s imposition of a money forfeiture in that case
without a license revocation is in no way inconsistent with the
action taken in this case.
E. The Commission Did Not Abuse its Discretion in Refusing
To Reinstate Eagle’s License Under the 2004 Amendment
to § 312(g)
As noted above, the 2004 amendment to § 312(g) vests the
Commission with discretion to reinstate a license that has
expired if doing so would “promote equity and fairness.” 47
U.S.C. § 312(g). Eagle contends that the Commission abused its
discretion in declining to reinstate its license under the 2004
amendment to § 312(g). Assuming, arguendo, that the
Commission was obliged to apply the 2004 version of § 312(g)
when it considered Eagle’s petition for reconsideration, we find
no abuse of discretion.
Eagle claims that there were “mitigating circumstances”
that should have caused the Commission to act favorably on its
petition for reconsideration. In particular, Eagle cites its
“misunderstanding” as to what it would take to obtain
authorization for the Buckskin site, lack of counsel to assist in
the processing of its applications, and “good faith” mistakes. In
22
Eagle’s view, “What we have here is a failure of
communication.” Eagle’s Br. at 30. We view the record quite
differently.
The Commission determined that Eagle never received
approval for the Buckskin site from the FAA or from the FCC.
And the Commission found that Eagle never offered a
convincing explanation to support its claim of a good faith belief
that it was acting with authorization. In fact, Eagle’s claim that
it believed it had obtained a license for the Buckskin site and
that the FAA approved the site appears to be disingenuous. As
the Commission points out, “it does not require legal counsel or
any level of sophistication to avoid making false statements on
simple matters of fact (such as whether or not an FAA clearance
letter existed that would be forwarded to the Commission later
in the week).” FCC’s Br. at 29. Moreover, the record makes
clear that Eagle received a number of warnings from FCC Staff
about the risk of expiration under § 312(g). Eagle had fair
warning of the rules and had every reason to understand what
was required of the company in order to avoid license expiration
under § 312(g). In these circumstances, the Commission acted
with justification and without abusing its discretion in denying
Eagle’s petition to reinstate its license.
III. CONCLUSION
For the reasons stated above, we affirm the Commission’s
decision invoking § 312(g) to terminate the broadcasting license
of Eagle Broadcasting Group, Ltd.