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SHURBERG BROADCASTING OF HARTFORD, INC. v. FCC

September 13, 1985

SHURBERG BROADCASTING OF HARTFORD, INC., Plaintiff
v.
FEDERAL COMMUNICATIONS COMMISSION, Defendant



The opinion of the court was delivered by: HOGAN

 The plaintiff, Shurberg Broadcasting of Hartford, Inc. ("Shurberg"), filed this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Government in the Sunshine Act ("Sunshine Act"), 5 U.S.C. § 552b, seeking access to certain documents generated by the defendant, the Federal Communications Commission ("FCC"/the "Commission") as well as the videotape of a closed Commission meeting conducted on September 26, 1984. This case is presently before the Court on defendant's motion to dismiss, or in the alternative for summary judgment, with respect to the FOIA claim. The plaintiff opposes the motion, asserting its need to conduct discovery prior to any disposition of its FOIA claim. Also before the Court are the parties' cross-motions for summary judgment with respect to the Sunshine Act claim. Upon consideration of the motions, and the respective memoranda filed in support of and in opposition thereto, as well as the relevant portions of the record, this Court concludes that summary judgment must be granted for the defendant with respect to the Sunshine Act claim, but denied with respect to the FOIA claim, and the plaintiff permitted to conduct limited discovery on the FOIA claim.

 Statement of Facts

 The plaintiff's claims in this action arise from matters that were pending before the FCC in September 1984 relating to the license of Station WHCT-TV, Channel 18, Hartford, Connecticut. At that time, Station WHCT-TV was licensed to Faith Center, Inc. ("Faith Center"). Faith Center's operations, however, had been under investigation by the FCC since 1977, and in a November 1980 order the FCC designated Faith Center's pending license renewal application for a hearing to determine whether it was qualified to remain a Commission license. See 47 U.S.C. § 309(e). However, the FCC's "Statement of Policy on Minority Ownership of Broadcasting Facilities," 68 F.C.C.2d 979 (1978), as revised, 92 F.C.C.2d 849 (1982), allows a licensee whose application has been designated for a hearing to avoid that hearing by selling the station to a minority-owned entity at a price below fair market value. Pursuant to this "distress sale" policy, Faith Center filed an application in 1981 to sell to a minority-owned entity. That application was granted, subject to the conditions that the prospective purchaser be found fully qualified to be a licensee and that the sale become final within 90 days after such qualifications were confirmed. However, the sale was never consummated. In September, 1982 Faith Center filed a second request to utilize the distress sale process, which was granted by the FCC on September 30, 1983, subject to the same conditions as the earlier approval. Again, however, the sale was not consummated.

 Finally, on June 28, 1984 Faith Center filed a third distress sale request. However, on December 2, 1983, Shurberg Broadcasting, the plaintiff here, had filed an application for authority to construct and operate a television station on Channel 18 in Hartford which was mutually exclusive with Faith Center's renewal application. Furthermore, on April 19, 1984 Shurberg had filed a "Petition for Extraordinary Relief" with the FCC, asserting that, in light of the failure of Faith center's second distress sale attempt, its application should be consolidated with Faith Center's renewal application, and the hearing promptly conducted. Upon the failure of the FCC to act, and upon learning that Faith Center was about to submit the third distress sale application, Shurberg filed a Petition for Writ of Mandamus with the United States Court of Appeals for the District of Columbia Circuit, requesting that the Court of Appeals order the FCC to act on the pending renewal application and Shurberg's competing application. In re Shurberg Broadcasting of Hartford, Inc., No. 84-5363 (D.C. Cir. 1984). On June 29, 1984 the Court of Appeals ordered that Shurberg's petition would be held in abeyance until the earlier of October 1, 1984 or the disposition of certain cases then pending before the Court of Appeals. Id.

 On September 19, 1984, pursuant to the public notice requirements of the Sunshine Act, 5 U.S.C. § 552b(d), (e), the Commission released a public notice stating that it intended to meet, in closed session, on September 26, 1984 in order to consider matters raised by Shurberg's Petition for Extraordinary Relief and Faith Center's third distress sale request. A subsequent request by Shurberg to open the meeting with respect to its petition was denied. In doing so, the FCC cited exemption 10 of the Sunshine Act, which permits closure of a meeting concerning "the agency's participation in a civil action or proceeding," or the "conduct or disposition by the agency of a particular case of formal agency adjudication." 5 U.S.C. § 552b(c)(10). In doing so, the FCC indicated that the meeting would relate to matters brought against the FCC by Shurberg in the Court of Appeals, and would concern the conduct and disposition of formal agency action concerning the licensing of Hartford Channel 18. After the September 26, 1984 meeting, the Chairman of the Commission, Mark S. Fowler, certified that the date, time, place and persons present for consideration of the matters were as stated on the certificate to close the meeting.

 On December 7, 1984, the Commission released a memorandum opinion and order denying Shurberg's Petition for Extraordinary Relief and granting Faith Center's third petition to accomplish a distress sale. In doing so, the FCC determined that Shurberg was not at that time entitled, as a matter of right, to have its application considered along with Faith Center's renewal application, a position the FCC recognized as requiring the conclusion that Faith Center was absolutely precluded from pursuing its third distress sale request. Moreover, the FCC determined, as a policy matter, that the goal of possible minority ownership of the station at that time outweighed the public interest in having competing applications considered at that time. The FCC ruled, however, that if Faith Center's third distress sale was not consummated, its renewal application would be promptly considered, allowing competing applications to be considered as well. Shurberg then filed an appeal of the FCC's decision with the United States Court of Appeals for the District of Columbia Circuit, where it remains pending. Shurberg Broadcasting of Hartford, Inc. v. FCC, 278 U.S. App. D.C. 24, 876 F.2d 902 (D.C. Cir. 1989).

 On October 2, 1984 the plaintiff submitted its FOIA request to the FCC, requesting documents concerning Faith Center, and individuals and entities involved in the Faith Center proceedings before the FCC. On October 17, 1984 the FCC responded to plaintiff's request, noting that it construed the request as seeking materials relating only to Faith Center's last petition for distress sale, *fn1" and indicating that seven documents responsive to plaintiff's request had been located, as well as the videotape of the FCC's September 26, 1984 meeting. The FCC's October 17, 1984 response indexed and briefly described the items indicated. The videotape recording was withheld, however, pursuant to exemption 10 of the Sunshine Act, 5 U.S.C. § 552b(c)(10). Furthermore, all of the other documents were withheld pursuant to FOIA exemption (b)(5) which exempts inter-agency communication concerning internal decision-making, often referred to as the "deliberative process" exception to FOIA. Thereafter, on November 7, 1984, plaintiff filed this action for relief under FOIA and the Sunshine Act.

 I. The Sunshine Act

 The Sunshine Act requires that meetings of all multi-membered federal agencies be conducted in public except in very limited, narrowly defined circumstances. 5 U.S.C. § 552b(b) & (c). As succinctly stated by Congress, the purpose of the Sunshine Act is to assure that the "government should conduct the public's business in public." S. Rep. No. 94-354, 94th Cong., 1st Sess. (1975); see also H.R. Rep. No. 880, 94th Cong., 2d Sess. 2-4 (1976). In seeking to close a meeting, the agency bears the burden of establishing that its meeting is subject to at least one of ten statutorily defined grounds for closure. 5 U.S.C. § 552b(c); Philadelphia Newspapers, Inc. v. NRC, 234 U.S. App. D.C. 96, 727 F.2d 1195, 1200 (D.C. Cir. 1984); Common Cause v. NRC, 218 U.S. App. D.C. 262, 674 F.2d 921, 928 (D.C. Cir. 1982). Furthermore, even if one or more exemptions may justify closure of a portion of a particular meeting, the agency must attempt to segregate the non-exempt from the exempt portions, and close only those portions of the meeting involving exempt topics, unless, "after making such efforts, an agency can persuade the court that segregation of exempt and non-exempt topics 'would make a coherent discussion impossible'. . . ." Philadelphia Newspapers, 727 F.2d at 1201 (quoting Common Cause, 674 F.2d at 936 n.46).

 In closing the September 26, 1984 meeting the defendant invoked exemption 10 of the Sunshine Act indicating that the meeting would concern a case of pending adjudication before the Commission, as well as pending litigation instituted against the Commission by Shurberg in the Court of Appeals for the District of Columbia Circuit. (Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, Exhibit 4.) Exemption 10 provides that portions of a meeting may be closed to the public if they

 
specifically concern the agency's issuance of a subpoena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.

 5 U.S.C. § 552b(c)(10) (emphasis added).

 The record currently before this Court amply supports the conclusion that the September 26, 1984 meeting in fact involved discussion of Faith Center's distress sale petition as well as Shurberg's Petition for Extraordinary Relief, seeking initiation of the hearing on Faith Center's license renewal application and Shurberg's competing ...


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