This is an appeal from an order of the Federal Communications Commission refusing to consolidate for hearing with competing applications the standard broadcast application of James River Broadcasting Corp., and returning the application as unacceptable. We hold that the Commission has not acted in conformance with its own rules, and accordingly remand the case for further consideration in the light of those rules.
Under 47 C.F.R. § 1.571(c) (Supp. 1968) the Commission is empowered to fix and publish a cut-off date for the filing of all applications "which are entitled to be grouped for processing." These include competing applications which, like those in this case, are entitled to a consolidated hearing under Section 309 of the Communications Act, 47 U.S.C. § 309 (1964) and Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). In accordance with this rule, the FCC on April 27, 1966, notified the public that Virginia Broadcasters had applied for a construction permit for a new 250 watt standard broadcast station on the frequency 1110 kilocycles at Williamsburg, Virginia, and that the cutoff date for all competing applications would be May 31, 1966. The appellant, James River Broadcasting Corp., thereupon commenced preparation of, and on May 27, 1966, filed with the Commission, an application to use the same frequency at Norfolk, Virginia, with a power of 50,000 watts. Another competing application — that of Charles Springer, trading as Suffolk Broadcasters, for a 250 watt standard broadcast station at Suffolk, Virginia — was also filed.
On August 16, 1966, KFAB Broadcasting Co., the licensee of Station KFAB, Omaha, Nebraska, filed a petition to reject appellant's application on the ground that it failed to protect KFAB from electrical "daytime sky-wave" interference.
The core of the Commission's reasoning in its July 31 opinion was as follows:
That the application as filed on May 27 was "patently not in accordance with the Commission's Rules" does not mean that it was properly returned as "unacceptable" on November 2. On the contrary, the Commission's rules explicitly provide that "any application may be amended as a matter of right prior to the adoption date of an order designating such application for hearing."
Apparently recognizing that its action was not supportable by reference to Section 1.566 alone, the Commission resorted to Section 1.227. Since the application was defective on the cut-off date, the Commission reasoned, it was "not timely filed under Section 1.571(c)." But Section 1.571(c) does not require that applications be acceptable when filed. The only requirement of that nature is found in Section 1.227; to be entitled to consolidated hearing, applications must be tendered in "substantially complete" form by the cut-off date. In effect, then, the Commission's reasoning in its July 31 opinion was that since the James River application violated Rule 1.566, on the cut-off date it was not "substantially complete" within Section 1.227. But this is a non-sequitur. An application might easily contain a serious violation of Commission rules which would render it unacceptable and yet be "substantially complete." Indeed, this possibility, and the difference in the thrust of the two sections, is recognized in the Commission's own rules.
It cannot be gainsaid that James River's application was "substantially compete" as originally filed. The Commission requires that applications which seek consolidated hearing be substantially complete for the same reason that they must be filed by a cut-off date — in order to avoid the difficulties of processing competitive applications when one is filed after the processing of another had already begun.
The Commission also, of course, cannot tolerate significant amendment to an already filed application. Such an amendment would disrupt the processing just as seriously as a new application. But Rule 1.227 was not drafted to exclude all amendments after the cutoff date. Rather, it states that the application "as amended" must be filed before the cut-off date only "if amended so as to require a new file number."
Finally, we should mention that we do not find persuasive the Commission's argument that its construction of its rules is essential to provide the necessary predictability for those planning to file broadcast applications. No such policy of predictability is reflected anywhere in the Commission's rules, nor is it even consistent with those rules. Notwithstanding these objections, the Commission's position is not supportable on its own terms.
One of the policies underlying the cut-off rule is indeed the protection of potential applicants. Those competing applications which are filed before the
It does not appear, however, that the predictability which the Commission describes could exist under the current rules. Although the Commission states that it never waives technical interference rules, there is nothing which would clearly reveal this to the potential applicant; on the contrary, Rule 1.566 itself provides for waiver, presumably of any rule. Moreover, even if the Commission would not excuse compliance with Rule 73.187, there is no reason why it could not waive the strict interpretation of the cut-off rule for which it now argues. On at least one occasion it has waived the cut-off rule. Fine Music, Inc., 9 Pike & Fischer R.R.2d 219 (1966). In short, the Commission has not demonstrated that the hypothetical applicant could justifiably count on the rejection of every defective application, even if the court were to affirm in this case.
More importantly, the Commission has not shown a real need for such predictability. The situation described by the Commission is comparable to that in which three or four acceptable and competing applications are actually designated for hearing. Only one of those applications will be granted, but during the perhaps extended period necessary for their comparative consideration, a potential applicant will be precluded from proposing coverage which would conflict with that proposed by any of the participants in the consolidated hearing in the same way that the Commission's hypothetical applicant is precluded by James River's application. Since such large areas of coverage are constantly tied up by consolidated hearings, the Commission may have exhibited a disproportionate concern about the relatively small percentage of that area claimed by defective applications. So long as the defect can be removed without otherwise injuring any public or private interests, the equities of the applicant who timely files a substantially complete proposal containing a minor infraction clearly predominate over those of the potential applicant who must curtail or postpone his application pending the consolidated hearing.
Reversed and remanded.
AM Processing Procedure, 18 Pike & Fischer R. R. 1565, 1566 (1959). There is also the purpose of apprising potentially competing applicants that they must also file by the cut-off date. See infra.