United States Court of Appeals, District of Columbia Circuit
September 20, 2017
Appeal from an Order of the Federal Communications Commission
F. Cole argued the cause for appellant. With him on the
briefs were Anne Goodwin Crump and Ashley Ludlow.
K. Sundaresan, Counsel, Federal Communications Commission,
argued the cause for appellee.
her on the brief were Howard J. Symons, General Counsel at
the time the brief was filed, Jacob M. Lewis, Associate
General Counsel, and Richard K. Welch, Deputy Associate
Matthew T. Murchison argued the cause for intervenor.
him on the brief were James H. Barker, Matthew J. Glover, and
Alexander L. Stout.
Before: Pillard and Wilkins, Circuit Judges, and Silberman,
Senior Circuit Judge.
PILLARD CIRCUIT JUDGE
Circuit Judge: Press Communications (Press) runs a radio
station broadcasting from a small town on the Atlantic Coast
in New Jersey. Press would like to move the station to
different premises further inland-a move that for
technological and regulatory reasons would require it also to
shift to a new channel on the radio dial. Press accordingly
submitted an application to the Federal Communications
Commission (FCC or Commission) for a license modification to
permit its channel transfer. Specifically, Press asked the
FCC to accommodate its move by authorizing Press to swap
stations with Equity Communications (Equity). The proposed
swap would assign Press's WBHX (FM) the channel
Equity's WZBZ (FM) now occupies, and move Equity's
station to Press's current channel. The FCC dismissed
Press's application because bumping Equity to Press's
channel would violate FCC channel spacing rules, putting
Equity's station too close to the Atlantic City Board of
Education's student run station WAJM (FM) and to Delaware
station WJBR (FM). The Commission disagreed with Press's
view that, because Press filed its application after the
lapse and before the untimely renewal of the Board of
Education's license, the short spacing problem was
irrelevant. Press now asks us to set aside as arbitrary and
capricious and inconsistent with the Communications Act of
1934 (Act) the FCC's Memorandum Opinion &
Order denying its application for review of the FCC
Media Bureau's decision. Because we conclude that the FCC
acted reasonably and complied with the Act, we affirm the
III of the Act regulates American broadcast radio. 47 U.S.C.
§ 301 et seq. The Act confers on the United
States control "over all the channels of radio
transmission, " id. § 301, charges the FCC
with implementing a licensing scheme pursuant to the Act,
id. § 303, and sets "public convenience,
interest, or necessity" as the Commission's guiding
principles, id. Operation of a broadcast radio
station requires a license from the FCC, id.
§§ 301, 307(a)-(d), and a station must apply to the
FCC for permission to modify its license, see 47
C.F.R. § 73.3573. The FCC may dismiss an application
that does not comply with FCC rules. Id. §
73.3566. The FCC's rules cover a lot of regulatory
terrain, from the construction of radio towers to the
conditions of broadcast operation. See generally 47
C.F.R. subpts. B & H. Those rules spell out the
conditions for modifying a station's operation, whether
by "major change" such as new ownership, or
"minor change" such as change to an adjacent
channel. See id. § 73.3573. As FCC regulations
explain, an application that does not comply with FCC
"rules, regulations or other requirements, "
"unless accompanied by an appropriate request for
waiver, will be considered defective and will not be accepted
for filing." Id. § 73.3566.
rule at the heart of this case is Section 73.207 of the
Commission's regulations, which establishes minimum
separation requirements for FM radio stations. Id.
§ 73.207. Each radio station has a home on the ground
(its transmitter), and on the dial (its frequency). When two
stations are not far enough apart both on the ground and on
the dial, their signals are likely to interfere with one
another, disrupting their broadcasts. The spacing
requirements laid out in Section 73.207 are designed to
prevent that unwanted interference. The distance the FCC
requires between station transmitters on the ground
corresponds inversely to the distance between their
frequencies on the dial. For example, for our purposes, the
transmitters of "first-adjacent" channels, such as
99.3 and 99.5 or 100.7 and 100.9, must be at least 113
kilometers apart; transmitters for
"second-adjacent" channels, such as 99.3 and 99.7
or 100.7 and 101.1, must have at least 69 kilometers between
them. I ...