DC Circuit Upholds FCC Denial of LPFM License
The U.S. Court of Appeals for the D.C. Circuit upheld an FCC denial of an appeal of the Media Bureau’s denial of a low-power FM license to Philadelphia nonprofit Nueva Esperanza, according to an opinion (in Pacer) released Friday. Though…
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Nueva Esperanza had presented arguments to the court that a policy explanation laid out in a blog post should be binding on the FCC, the court never reached that issue, agreeing with the FCC that the appellant misinterpreted the blog post by then-bureau Chief Bill Lake and FCC rules, said an opinion by Senior Judge Douglas Ginsburg. The panel also included Circuit Judges Sri Srinivasan and Judith Rogers. The evidence shows “no reason to think the Commission’s interpretation of the Blog Post is arbitrary and capricious,” the opinion said. “Therefore, we need not reach the question whether the Blog Post is binding upon the Commission.” Nueva Esperanza’s application for an LPFM license was initially found to be mutually exclusive to several other applications. The other mutually exclusive stations banded together and reached an agreement to share spectrum, making their application more favorable under the FCC’s point system for resolving such matters, the order said. When Nueva Esperanza was denied in favor of the combination, it appealed on the ground that the other applicants colluded, filing individual mutually exclusive applications separately with the plan of combining to get a more favorable score. Nueva Esperanza argued this was expressly forbidden in a blog post from Lake that stated that multiple groups shouldn’t “attempt to maximize the chances of receiving an LPFM” permit by submitting multiple applications with the expectation of sharing time.” The FCC denied Nueva’s appeal, pointing to a previous paragraph of the blog encouraging separate organizations in the same area to apply individually with the expectation of joining together if they are found to be mutually exclusive, the order said. Since the organizations were separate entities that filed their timeshare agreement after they were found to be mutually exclusive, their agreement doesn’t run afoul of rules, the agency said. The D.C. Circuit agreed with the FCC’s interpretation, Ginsburg said. “The Appellant’s interpretation of the Blog Post is incorrect.”