New South Broadcasting Corporation v. Federal Communications Commission

879 F.2d 867, 279 U.S. App. D.C. 21, 66 Rad. Reg. 2d (P & F) 1088, 1989 U.S. App. LEXIS 9728
Court of Appeals for the D.C. Circuit·Decided July 7, 1989·No. 87-1303·Published·Cited by 5 cases

Opinion

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

A radio broadcaster, New South Broadcasting Corp. (“New South”), appeals a decision of the Federal Communications Commission (“FCC” or “Commission”) denying it a preference for its proposal to serve a community, Fairforest, South Carolina, that is currently without a local broadcast facility. The FCC is required under section 307(b) of the Communications Act to “make such distribution of licenses * * * among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.” 47 U.S.C. § 307(b). In a proceed *868 ing involving mutually exclusive applications, the Commission awarded a license to Beacon Broadcasting Corp. (“Beacon”), which proposed to serve Morganton, North Carolina, a city already served by two co-owned radio stations, instead of to New South. The question presented is whether the Commission has changed its interpretation of section 307(b) without providing an adequate explanation. We conclude that it has not, and affirm the Commission’s decision.

I.

New South applied to the FCC to change the frequency and increase the power of its existing AM station WASC and to change that station’s community of license from Spartanburg, South Carolina to Fairforest, South Carolina, without relocating WASC's studio or transmitter. Under a then-existing Commission rule, which has since been deleted, New South could not apply for a change in frequency or power unless it proposed, inter alia, to offer a first or second local service, see 47 C.F.R. § 73.37(e)(l)(ii) (1984); cf. Report and Order, Deletion of AM Application Acceptance Criteria in § 78.37(e) of the Commission’s Rules, 102 F.C.C.2d 548, 552 (1985) (eliminating the requirement). Spartan-burg already had more than two local.radio stations licensed to it, so that New South was forced to propose a new community of license if it wished to increase its broadcast power.

Beacon applied to the Commission to construct a new AM radio station in Morgan-ton, North Carolina. This application was technologically incompatible with New South’s proposal. Following an evidentiary hearing, an administrative law judge (“AU”) determined that New South’s application could not be granted because Fair-forest was not a “licensable community” for the purposes of section 73.1120(a) of the Commission’s rules, 47 C.F.R. § 73.1120(a) (1988). See Beacon Broadcasting, 104 F.C.C.2d 811, 817 (ALJ 1985).

Fairforest is an unincorporated place on the outskirts of the larger city of Spartan-burg. It has no legally defined boundaries, although it is shown on the General Highway Map of Spartanburg County prepared by the South Carolina Department of Highways and Public Transportation. See 104 F.C.C.2d at 815. One of New South’s directors testified before the AU that he saw a map in the offices of the Spartan-burg County Planning Commission entitled “Neighborhood Statistical Area, Spartan-burg County Map.” See id. at 815. This map was never introduced into evidence in the proceedings before the Commission. See id. The map depicted an area called “Neighborhood 11,” which the director took to be Fairforest, and showed that the boundaries of Neighborhood 11 were Interstate 85 on the north, Interstate 26 on the east, U.S. 29 on the south, and Road 122 on the west. See id. Data compiled by the Bureau of the Census indicate that in 1980, Neighborhood 11 had a population of 2,941. See id. at 816.

Fairforest has no local government of its own. See 104 F.C.C.2d at 816, It contains the offices of a state-appointed magistrate and a U.S. Post Office, which has its own zip code and serves as an address for mail directed to post office boxes. There is no carrier delivery from the post office. See id. Within the area bounded by the four roads, there are approximately 57 business establishments, including gas stations, a lumber yard, a paper company, food stores, restaurants, a drug store, a barber shop, and a drive-in movie theater. See id. at 816. There are also three public schools, see id. at 817, and six churches, see Beacon Broadcasting, 2 F.C.C. Red 3469, 3471 (1987).

The AU concluded that Fairforest did not possess the requisite indicia of a “community,” including “political, commercial, social; and religious organizations and services serving the community,” and “a sense of unity and involvement in community concerns as shown by evidence that the residents function as and conceive of themselves as a community around which their interests coalesce.” 104 F.C.C.2d at 817 (quoting Mighty-Mac Broadcasting Co., 101 F.C.C.2d 303, 306 (Rev.Bd.1985), review denied, FCC No. 86-127 (Mar. 24, 1986)). *869 In dictum, the AU opined that if Fairforest could be found to be a “community,” then New South would receive a preference under section 307(b) because Morganton, North Carolina — the area that Beacon proposed to serve — already had two existing, albeit co-owned, radio stations, whereas New South was proposing the first local service for Fairforest. See 104 F.C.C.2d at 819. The AU also noted that Beacon was entitled to a moderate diversification preference because one of New South’s principals had an ownership interest in five other stations, and that Beacon qualified for an integration preference because its 52-per-cent owner proposed to serve as station manager. See id. at 820. Overall, the AU concluded, Beacon was the preferred applicant under the standard comparative issue.

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New South Broadcasting Corporation v. Federal Communications Commission, 879 F.2d 867, 279 U.S. App. D.C. 21, 66 Rad. Reg. 2d (P & F) 1088, 1989 U.S. App. LEXIS 9728 (D.C. Cir. 1989).

879 F.2d 867 (New South Broadcasting Corporation v. Federal Communications Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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