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Press Communications LLC v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

November 21, 2017

Press Communications LLC, Appellant
Federal Communications Commission, Appellee Atlantic City Board of Education, Intervenor

          Argued September 20, 2017

         On Appeal from an Order of the Federal Communications Commission

          Harry F. Cole argued the cause for appellant. With him on the briefs were Anne Goodwin Crump and Ashley Ludlow.

          Thaila K. Sundaresan, Counsel, Federal Communications Commission, argued the cause for appellee.

          With 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 General Counsel.

          Matthew T. Murchison argued the cause for intervenor.

          With 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: 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 FCC's Order.

         I. Background

         A. Legal Framework

         Title 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.

         The 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 ...

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