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06/15/84 Committee For Community v. Federal Communications

June 15, 1984









Wald, Mikva and Starr, Circuit Judges.




Nos. 82-2314, 82-2373, 82-2400

Appeals from an Order of the Federal Communications Commission. 1984.CDC.168


Opinion for the Court filed by Circuit Judge MIKVA.


This case represents yet another meandering effort by the Federal Communications Commission (FCC or Commission) to develop a paradigm for its license renewal hearings. For years, this court has urged the FCC to put some bite into its comparative hearings. See, e.g., Central Florida Enterprises, Inc. v. FCC (Central Florida I), 194 U.S. App. D.C. 118, 598 F.2d 37 (D.C. Cir. 1978), cert. dismissed, 441 U.S. 957, 60 L. Ed. 2d 1062, 99 S. Ct. 2189 (1979). Indeed, we have too long hungered for just one instance in which the FCC properly denied an incumbent's renewal expectancy. Unfortunately, in the process of seeking to respond to this court's signals with regard to the renewal expectancy, the FCC ignored its own precedents as to the other factors that must be considered in conducting a comparative analysis. Moreover, the Commission's approach here raises serious First Amendment concerns. Therefore, while we affirm the Commission's denial of the incumbent's renewal expectancy, we remand the case so that the FCC can recalculate the comparative factors. We affirm, however, the Commission's denial of the petitions for reconsideration filed by two community groups that were not parties to the initial licensing proceeding. I. BACKGROUND

The ultimate question in this case is who should be the licensee of WVCA, the only broadcast station in Gloucester, Massachusetts, a community of approximately 28,000 denizens located about twenty-five miles from Boston. Although Gloucester is within the broadcast range of many non-Gloucester stations, the only locally-based media are WVCA and a single daily newspaper.

WVCA's current licensee is Simon Geller, who has held the license for twenty years and who, operating at a minimal profit, has been the station's sole owner, operator, announcer, technician, and salesman. After experimenting with a variety of programming formats, Geller began in 1968 to broadcast only symphonic music. In his 1972 renewal application Geller proposed to broadcast 99.77% symphonic music. His format from 1972-75 thus included very few commercials and more significantly, very little "nonentertainment", informational programming. Geller, however, satisfied all the obligations imposed in his 1972-75 license and, in fact, offered more nonentertainment programming than his proposal contained. Nonetheless, the total amount of nonentertainment programming remained less than 1%.

Geller's 1975 renewal application, the application here in controversy, was challenged by Grandbanke Corporation. While Geller again proposed an exclusively symphonic music format with only a small amount of nonentertainment programming, Grandbanke proposed a musical medley, with approximately 28.7% of its broadcast week devoted to nonentertainment programming.

As the licenses were mutually exclusive, a comparative hearing was ordered. At the hearing, many residents of Gloucester expressed their support for Geller and testified as to the benefit they received from Geller's symphonic format. At the hearing's conclusion, the administrative law judge found that Geller was qualified to remain a licensee and was entitled to a renewal expectancy because of his favorable past record. The ALJ also concluded that Geller was entitled to a preference for "integration of ownership and management" and for "diversification of media ownership." Accordingly, Geller was found to be the superior applicant and thus received the license renewal.

In June 1982, the Commission, after agreeing with the ALJ's conclusion that both applicants were "basically qualified," denied Geller's renewal application and granted the license to Grandbanke. To reach this result, the Commission denied Geller a renewal expectancy and awarded him only diminished preferences under the criteria of diversification and integration. Grandbanke received a substantial preference for its program proposal and a slight preference for its more efficient use of the radio spectrum.Throughout the entire proceeding, Geller, a non-lawyer, represented himself.

Subsequent to the FCC's decision, Geller, now represented by counsel, petitioned for reconsideration. In this petition, Geller explained that the station's transmitter site had been moved and that the station's service hours had been, and would continue to be, increased. These changes could diminish substantially Grandbanke's preference for efficient use of the radio spectrum. Geller also sought to demonstrate that newly offered financial assistance would enable an increase of nonentertainment programming.

At the same time, two organizations heretofore uninvolved with the proceedings filed petitions for reconsideration: Committee for Community Access , an organization of listeners and media professionals in the greater Boston area; and Save Our Station , an organization formed by the listeners of Geller's station in response to the FCC's denial of his renewal application.

The FCC denied all petitions for reconsideration. With regard to Geller's petition, the Commission concluded that the petition was a prohibited post-designation amendment that enhanced his comparative position. With regard to CCA and SOS, the Commission concluded that neither group had standing to file a petition for reconsideration. II. ANALYSIS

The proper standard of review in evaluating an FCC decision reached after a comparative hearing has been articulated innumerable times by this court. See, e.g., Victor Broadcasting, Inc. v. FCC, 232 U.S. App. D.C. 270, 722 F.2d 756 (D.C. Cir. 1983); Central Florida Enterprises, Inc. v. FCC (Central Florida II), 221 U.S. App. D.C. 162, 683 F.2d 503 (D.C. Cir. 1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1774, 76 L. Ed. 2d 346 (1983); Miner v. FCC, 213 U.S. App. D.C. 388, 663 F.2d 152 (D.C. Cir. 1980). As we stated in Central Florida I, 598 F.2d at 49, "he agency must engage in reasoned decision-making, articulating with some clarity the reasons for its decisions and the significance of facts particularly relied on." Moreover, the agency cannot silently depart from previous policies or ignore precedent. "n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." See Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971).

A. The Renewal Expectancy

The Commission denied Geller a renewal expectancy, that extra "plus" an incumbent can receive in the comparative hearing if the public has enjoyed superior service during the previous license period. See Victor Broadcasting, supra; Central Florida II (supra) Central Florida I (supra). The weight of the renewal expectancy reflects the broadcaster's past record: the better the record, the greater the weight. Conversely, the worse the record, the less weighty the renewal expectncy.

For many years, the FCC imposed an affirmative obligation on licensees to undertake formal ascertainment studies to determine issues of importance to the community. This required the broadcaster to interview community leaders and other listeners to determine the issues of interest to the community. By the time the Commission reviewed Geller's renewal application, the requirement of formal ascertainment studies had been eliminated. Report and Order, Deregulation of Radio, 84 F.C.C.2d 968 (1981), aff'd sub nom. Office of Communication of the United Church of Christ v. FCC, 228 U.S. App. D.C. 8, 707 F.2d 1413 (D.C. Cir. 1983). The licensee, however, still must determine the major issues in the community. In the instant case, the Commission measured Geller's prior performance by the pre-deregulation standards, existing during the 1972-75 license period. Future programming, however, was measured under the new deregulation polices. 90 F.C.C.2d at 252 n.8. Under either means, the broadcaster must air programs directed at ascertained needs. See Primer on Ascertainment of Community Problems, 27 F.C.C.2d 650 (1971). As we previously have observed: "The basic principle underlying [this] ascertainment policy is clear: For a radio licensee to provide programming responsive to issues facing the community, it must first ascertain just what those issues are." Office of Communication of the United Church of Christ v. FCC, 228 U.S. App. D.C. 8, 707 F.2d 1413, 1435 (D.C. Cir. 1983).

Geller failed to comply with these substantive requirements. The Commission found that "Geller broadcast no news, no editorials, and none of his [nonentertainment] programming was locally produced. None of his programs, moreover, were presented in response to ascertained community needs and problems." 90 F.C.C.2d 265. Because Geller had not adequately ascertained community needs, he could not, by definition, air responsive programs. Thus, it was reasonable for the Commission to conclude that Geller's previous service did not warrant a renewal expectancy.

B. The comparative Issues

Having concluded that Geller was not entitled to a renewal expectancy, the Commission compared Geller and Grandbanke on the standard comparative issues. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2d 393 (1965) (1965 Policy Statement). The issues include diversification of ownership, intergration of ownership and management, proposed programming, and efficient use of the radio spectrum. ...

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