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10/15/86 Colorado Television, Inc., v. Federal Communications

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


October 15, 1986

COLORADO TELEVISION, INC., APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE, ALDEN COMMUNICATIONS OF COLORADO, INC., INTERVENOR 1986.CDC.348

Before: WALD, Chief Judge, GINSBURG and BORK, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Date Filed: October 15, 1986.

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

NOT FINAL UNTIL EXPIRATION OF THE HEARING PERIOD - SEE GENERAL RULE 14.

NOTICE OF APPEAL FROM AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION

MEMORANDUM

Colorado Television, Inc. appeals an order by the Federal Communications Commission affirming a Review Board's decision to deny CTI's post-designation petitions to amend the transmitter site in its engineering proposal. Without an amendment, CTI's application for authority to construct a new broadcast station lacked a viable transmitter site and was therefore disqualified. After CTI's disqualification, the Review Board granted the application of Alden Communications of Colorado, Inc. (Alden), intervenor in this appeal.

Under FCC regulations, a request to amend an application after a comparative hearing has been designated must show "good cause." 47 C.F.R. ยง 73.3522(b). In applying this regulation to particular requests, the FCC has previously determined that to meet the requirement of good cause, a post-designation request to amend must demonstrate, among other things, due diligence and no necessity for additional hearings. See, e.g., Edwin O'Connor Broadcasting Co., 22 F.C.C.2d 140, 143 (Rev. Bd. 1970). In this case the Review Board concluded that CTI's proposed transmitter site amendments lacked "good cause" for failure to satisfy either of these two conditions.

The Review Board's determination that CTI's petitions to amend would require additional hearings is the stronger of the two grounds for denial and we think a sufficient basis, by itself, on which to sustain the FCC's decision. Once the Review Board learned that CTI had failed to disclose to the FCC the fact that the United States Forest Service had specifically denied CTI the right to use the site on which it was relying, the Review Board could reasonably conclude, as it did, that this nondisclosure raised serious questions about CTI's candor and honesty that would require additional hearings if CTI remained an eligible applicant for the station. CTI argues that because the ALJ had previously rejected its challenge to Alden's use of the same site and presumed the site's availability, CTI was released from any duty to disclose its own turn-down. We think the Review Board responded appropriately to this argument: "While the ALJ's ruling may be read to have relieved CTI from an obligation to obtain prior zoning approval from the Forest Service, it did not relieve it from disclosing prior zoning disapproval to the commission." Joint Appendix at 498 (emphasis in original).

The unexplained three month delay, from the time CTI belatedly recognized the error in the geographical coordinates of its initial proposed transmitter site amendment to the time CTI submitted its proposed amendment correcting this defect, further undercuts CTI's claim to "good cause." While this delay alone might not constitute nondiligence, CTI admitted at oral argument that it had been put on notice much earlier of the exact location of Alden's site, which it was not attempting to use as its own, and that any error in its citation to the Commission resulted entirely from its own negligence. These facts further support the Review Board's determination that CTI's request to amend lacked "good cause."

There is ample justification for the Review Board's decision to disqualify CTI's application. Accordingly, this appeal is dismissed.

JUDGMENT

This cause was reviewed on the record on appeal from an order of the Federal Communications Commission and was briefed by and argued by counsel for the parties. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the Court. See D.C. Cir. R. 13(c). On consideration thereof and for the reasons set forth in the accompanying memorandum is it

ORDERED and ADJUDGED, by this Court, that the appeal is hereby dismissed. It is

FURTHER ORDERED, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981, and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

Per Curiam.

19861015

© 2002 VersusLaw Inc.



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