DC Circuit Questions Press Communications on Expired License Rights
A U.S. Court of Appeals for the D.C. Circuit panel seemed skeptical Wednesday of Press Communications’ arguments that a station that lets its license expire forfeits rights to have its footprint protected by FCC spacing rules. Press deliberately chose not to seek a waiver of short spacing rules when it filed a minor modification application to move WBHX(FM) Tuckerton, New Jersey, to a new channel too close to another station with an expired license (see 1608100052), noted Judge Laurence Silberman during oral argument. “Costly choice, wasn’t it?” The FCC seemed to have made a “contrary determination” on whether considering the footprint of an expired license was in the public interest in considering WBHX’s move, Judge Cornelia Pillard said.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The agency said Press’ proposed channel move caused short-spacing conflicts with two stations, including noncommercial WAJM(FM) Atlantic City, which is run by high school students and the Atlantic City Board of Education; Silberman disclosed at the start of oral argument that he attended the school for two years. WAJM’s license was mistakenly allowed to expire in 2006, and the board didn’t file for a renewal until 2010, shortly after Press filed its minor-modification request, the FCC said in court filings. If the FCC allows stations with expired licenses to still receive the protections of a currently licensed station, license expiration is “largely immaterial,” which would be contrary to the law, said Press’ attorney Harry Cole, of Fletcher Heald. Since WAJM had an expired license and no renewal pending when Press filed its application, WAJM isn’t entitled to short spacing protections, Cole said Wednesday. The Communications Act gives the commission discretion over how an expired license should be treated, argued Thaila Sundaresan, FCC counsel-appellate litigation, and continuity of service is “fundamental” to the act, she said.
Pillard asked Cole questions about whether rules governing expiration of a station’s license bar the FCC from still considering the station’s footprint, while Silberman focused on Press’ choice not to seek a waiver of short spacing rules. Judge Robert Wilkins interrupted less, but questioned Cole's claim the FCC needed precedent to require Press file a waiver. The panel also pushed the FCC on the basis for its authority to consider WAJM’s circumstances despite its expired license. Sundaresan’s responses were in line with statements Pillard herself made during Cole’s time before the panel. Cole argued that granting WBHX’s application would have led to cumulatively less short spacing, while the agency said that the application was defective even without the short-spacing related to WAJM.
The panel “asked the right questions,” said Latham and Watkins attorney Matthew Murchison, who represented for free the Board of Education as an intervenor. He declined to predict to us the case’s outcome, but said the case was “within the heartland of the commission’s discretion” and the FCC decisions are often given deference by the D.C. Circuit. After the hearing, Cole also praised the panel’s “aggressive” questions. Though Silberman said there's little precedent for the case, Cole told us any decision is unlikely to have many future permutations, since the multiple short-spacings involved would arise only in heavily congested areas such as New Jersey.