GREATER ORLANDO AVIATION AUTHORITY v. F.A.A.

DUBINA, Circuit Judge:

Petitioner, Greater Orlando Aviation Authority ("Aviation Authority"), petitions this court to review two Federal Aviation Administration ("FAA") decisions which have allowed Guy Gannett Publishing Co. ("Gannett") to erect radio towers in the Orlando, Florida, area. The two issues presented in this appeal are (1) whether this court has subject matter jurisdiction to review the FAA decisions; and (2) whether the FAA's decision not to consider a proposed airport, while it was considering the impact of Gannett's radio towers on air safety, was arbitrary and capricious. We find that the Aviation Authority showed reasonable grounds for its failure to file a timely appeal from the September 21, 1989, determination, but we further find that we do not have jurisdiction over the appeal from the December 5, 1989, determination. In addition, we find that the FAA's decision not to consider the proposed airport was arbitrary and capricious. Accordingly, we grant the Aviation Authority leave to appeal from the FAA's September 21, 1989, determination; we dismiss the Aviation Authority's appeal from the December 5, 1989, determination for lack of subject matter jurisdiction; and we vacate and remand the September 21, 1989, determination.

I. BACKGROUND

The Aviation Authority is a public entity created to develop, finance, and operate airport facilities in Orange County, Florida. As part of that responsibility, the Aviation Authority undertook an airport capacity study to measure and anticipate general aviation needs in Orange County. The study indicated that Orlando, Florida, is in need of reliever airports.1 The Aviation Authority then developed a preliminary list of twelve sites for two possible reliever airports (six sites for one airport in the east and six sites for another airport in the west). The FAA worked in concert with the Authority in developing plans for reliever airports in the Orlando area. The FAA's involvement included meeting with representatives of the Aviation Authority to discuss locations, required airport capacity, and environmental concerns.2

On April 24, 1989, the FAA received a Notice of Proposed Construction or Alteration submitted by Gannett that proposed the construction of a six-tower antennae complex in the Orlando area.3 The FAA determined that the proposed towers would be considered an obstruction under standards set out in Objects Affecting Navigable Airspace, 14 C.F.R. § 77 (1991), and that the agency would need to conduct an aeronautical study to determine whether the towers would be a hazard to air navigation.4 On July 6, 1989, the FAA circulated notice of the aeronautical study of Gannett's proposed towers requesting all interested parties to submit comments on the proposal by August 5, 1989.5

The FAA negotiated with Gannett in order to reduce the height of the towers, so that they would not be considered an obstruction under § 77.6 These negotiations were successful,7 but unfortunately, due to a clerical mistake, an incorrect Acknowledgment of Notice of Proposed Construction or Alteration concerning Gannett's proposed towers was mailed by the FAA on September 15, 1989. A week later, on September 21, 1989, a correct version was mailed stating that the proposed towers would not be an obstruction under § 77 standards.

Meanwhile, on June 6, 1989, the Aviation Authority officially informed the FAA of the exact location and coordinates of a proposed reliever airport.8 The FAA has a standard rule of considering all proposals on a first-come, first-served basis.9 Because notice of Gannett's proposal was received by the FAA prior to the receipt of the notice of the Aviation Authority, the FAA followed its standard procedures and did not consider the Aviation Authority's proposed airport when it was evaluating the proposed radio towers.

The Aviation Authority filed a request for discretionary review of the FAA's September 21, 1989, action on October 3, 1989.10 The FAA denied this review on December 5, 1989, because administrative appellate procedures do not apply to determinations that the structure would not be an obstruction.11

Gannett then filed an application for site plan approval with the Lake County Site Plan Committee. The plan was approved subject to proof that the FAA had determined that the proposal would not be an obstruction under its rules. Gannett presented the requisite proof and obtained building permits to construct its antenna towers. The Aviation Authority filed a notice of appeal with the Board of County Commissioners12 seeking review of the Lake County Building Department's issuance of the building permits. Simultaneously, the state circuit court granted the Aviation Authority an injunction to stop the construction for the purpose of allowing the matter to proceed before the Board of Commissioners. The Aviation Authority was unsuccessful before the Board of Commissioners and Gannett then moved to lift the injunction.13 The injunction was dissolved and Gannett began erection of the towers.14

The Aviation Authority then filed two appeals with this court: (1) leave to file a Petition for Review of the September 21, 1989, determination (No. 90-3082), which held that Gannett's proposed towers were not an obstruction; and (2) a Petition for Review of the December 5, 1989, decision (No. 90-3081), which held that the September 21 determination was not subject to administrative review.

II. STANDARD OF REVIEW

Under 49 U.S.C.App. § 1486(e) (1988), "findings of fact" by the FAA "if supported by substantial evidence, shall be conclusive." In reviewing administrative fact-findings to determine whether they are supported by substantial evidence, this court must look at the record in its entirety, including the body of evidence opposed to the FAA's view. City of Pompano Beach v. FAA, 774 F.2d 1529, 1539 (11th Cir.1985). Not only must the agency's factual findings be supported by substantial evidence, but the agency's interpretation of the governing statute, application of the statute to the facts, and conclusion must be reasonable and not arbitrary or capricious. Id. at 1540.

Although this court is the final authority on issues of statutory construction, it must respect the agency's findings and conclusions when the question involves an interpretation of a statute that is within the agency's specialized knowledge and expertise. Id. This court "will adhere to the `principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.'" Veterans Administration Medical Center, Tampa Fla. v. Federal Labor Relations Authority, 675 F.2d 260, 262 (11th Cir.1982) (citations omitted).

III. ANALYSIS

A. Jurisdiction

Title 49 U.S.C.App. § 1486(a) (1988), provides that a petition for review of an order of the Administrator of the FAA may be filed within sixty days after the entry of such order. After the expiration of the sixty days, the petition may be filed only by leave of the court upon a showing of reasonable grounds for failure to file within the allowed time period.15 The Supreme Court has emphasized that the timely filing of a notice of appeal is "`mandatory and jurisdictional.'" Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388, 101 L.Ed.2d 245 (1988) (Scalia, J., dissenting) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 61, 103 S.Ct. 400, 402, 403, 74 L.Ed.2d 225 (1982)); see also Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522, 1525 (11th Cir.1991).

Since the Aviation Authority filed its appeal on January 31, 1990, the appeal was clearly filed more than sixty days after the FAA's September 21, 1989, determination. The phrase "`[a]ny order, affirmative or negative' has been judicially restricted to encompass only final FAA orders." Aeromar, C. Por A. v. Department of Transp., 767 F.2d 1491, 1492 (11th Cir.), reh'g denied, 773 F.2d 1239 (1985). The Aviation Authority argues that because it asked the FAA to reconsider its decision, the order was not final.16 The Aviation Authority cites to language in Aeromar which reads, "[a]fter the filing of a petition for reconsideration of a FAA order, there is no `definitive statement on the subject matter' of the order until the petition is denied." Id. at 1493 (quoting Outland v. C.A.B., 284 F.2d 224, 227 (D.C.Cir.1960)). The court stated that to hold otherwise would leave the court open to the possibility of unnecessary piecemeal judicial review. Id.

This case, however, is different from Aeromar. In this case, the FAA's determination was not subject to reconsideration. The FAA made a finding of no obstruction under 14 C.F.R. § 77.19(c)(1), and that finding is not subject to discretionary review under § 77.37. Thus, since the order was not subject to reconsideration, the order became final on September 21, 1989. Because the Aviation Authority did not appeal the order within sixty days of its becoming a final order, this court does not have jurisdiction over this appeal unless the Aviation Authority presents reasonable grounds for its failure to file within the statutory period.

The Aviation Authority gives two reasons why it did not timely appeal. First, it argues that it was pursuing state court remedies. The local Zoning Board, however, has no authority to affect the FAA's determination. Further, the local remedies involve an area of law over which the FAA does not have jurisdiction, namely, local zoning. The Aviation Authority argues that if it had been successful in state court, this review would have been unnecessary. Yet, no action by the Board of Commissioners could have affected the FAA's determination. Additionally, the Aviation Authority could have filed both appeals concurrently, instead of pursuing state court remedies while jurisdiction was being lost on the FAA determination.

Second, the Aviation Authority argues that it was attempting to persuade the FAA to reconsider its original decision. As discussed previously, however, FAA rules do not allow for reconsideration of a finding that a structure is not an obstruction. The Aviation Authority simply made a mistake in its interpretation of the FAA's procedures.17 While ignorance is not typically excusable, it is understandable in this case, when one considers the confusion surrounding the FAA's determination of no obstruction. The FAA originally released an Acknowledgment of Notice of Proposed Construction or Alteration concerning Gannett's towers which stated that the towers would be a hazard.18 A week later, the FAA released the correct version which stated that the towers would not be an obstruction. The FAA also sent out a letter saying that "[t]he Determination of No Hazard, issued by Southern Region under aeronautical study 89-ASO-799-OE, was therefore issued in accordance with agency policy and procedures."19 Since a finding of a hazard or a finding of no hazard under an aeronautical study would be reviewable, these mailings by the FAA introduced confusion as to whether the FAA's determination was reviewable. This confusion likely caused the Aviation Authority to ask for review of the September 21 determination. As such, we are persuaded that this confusion presents reasonable grounds to explain why the Aviation Authority may have waited until after the denial of review before filing its notice of appeal.

With regard to the appeal from the FAA's denial of review dated December 5, 1989, the Aviation Authority did file its appeal within sixty days of the action. Nonetheless, this action is not reviewable. The Supreme Court in I.C.C. v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278-79, 107 S.Ct. 2360, 2365-66, 96 L.Ed.2d 222 (1987), held that a petition to reopen and reconsider an agency order which does not allege new evidence or changed circumstances is not subject to judicial review. The Aviation Authority's request for review alleged neither new evidence nor changed circumstances. Thus, the FAA's denial of review dated December 5, 1989, is not subject to appellate review.

B. Violation

The FAA contends that it was not required to consider West Site One (the site of the Aviation Authority's proposed airport) when deciding whether Gannett's towers would be hazardous to air safety. The FAA argues that it works on a first-come, first-served basis. Gannett provided notice of the towers on April 24, 1989, but the FAA did not have actual notice of the proposed airport until June 6, 1989. In addressing this issue, the Eighth Circuit in White Industries v. F.A.A., 692 F.2d 532 (8th Cir.1982), stated as follows:

692 F.2d at 535.

We agree with the Eighth Circuit's ruling in White that the regulations must be interpreted to require the FAA to consider the effect of the construction upon planned airports of which the FAA has "actual, informal notice." In the present case, the question remains, as it did in White, when did the FAA receive actual, informal notice of the proposed airport?20 This question cannot be answered until the FAA holds an evidentiary hearing to determine when it received "actual, informal notice."21

The FAA maintains that White is distinguishable from this case. White involved an appeal from an FAA determination that certain proposed towers would not be a hazard to air navigation. Representatives of a local airport under construction brought an action asserting that the FAA ignored the existence of the airport as well as the comments filed on behalf of the airport when considering a determination of hazard/no-hazard for the proposed radio towers.

First, the FAA argues that actual construction of the airport in White had started two years prior to the time the proposals for the towers and the subject airport were filed, thus, giving the FAA actual knowledge of the airport prior to the filing of the tower proposal. In the present case, not only had construction not started, but the Aviation Authority was still considering at least five other sites. While the facts of the two cases are not identical, the reasoning is the same: requiring formal actual notice "is unduly technical and restrictive and is contrary to the policy underlying the statute and regulations." Id.

Second, the FAA argues that in White, the FAA did not consider the comments filed by the airport, whereas in the present case the FAA claims that it accepted and considered the comments filed by the Aviation Authority before deciding whether the towers would present a hazard. The FAA presents no evidence that the Aviation Authority's comments were considered, and the record indicates otherwise. The Aviation Authority's comments appertained to the proposed airport, yet the FAA on every occasion recounted that the proposed airport was not considered when Gannett's tower proposal was appraised.22 It is difficult for us to imagine how the FAA could have considered the Aviation Authority's comments if it did not consider the subject matter of those comments. Furthermore, White requires the FAA to do more than just pay lip service to the Aviation Authority's comments. The FAA is required to consider the effect of the construction upon the proposed airport.

There is, however, one important distinguishable characteristic of White which moots the question of when the FAA received "actual, informal notice" of the proposed airport. Contained in the language of White is a determination that the first-come, first-served procedure employed by the FAA is arbitrary and capricious and is counter to the FAA's purpose of promoting safe and efficient use of airspace.23 The court in White held that if the FAA receives actual notice of the proposed airport after it receives notice of the proposed towers, the FAA must consider the planned airport. The limitation on this consideration is that the FAA must have notice of the second structure before the end of the time allocated to receive comments on the proposed hazard. In the present case the deadline for comments was August 5, 1989, and the FAA had actual formal notice on June 6, 1989.

The holding in White that the first-come, first-served method is contrary to the FAA's purpose of promoting safe and efficient use of airspace is strengthened by the legislative history for the 1987 amendments to 49 U.S.C. App. § 1501 (1988).24 Under the 1987 amendments, Congress has required notice of construction or alteration of a structure whenever "notice will promote safety in air commerce as well as the efficient use and preservation of the navigable airspace...." 49 U.S.C.App. § 1501(a) (1988) (emphasis added).

The purpose of this amendment is to "make[] clear the FAA's responsibility to carry out obstruction evaluations and notifications in light of the proposed structure's impact on aviation safety and on efficient use and preservation of airspace and airport capacity." H.R.Rep. No. 484, 100th Cong., 1st Sess. 85, reprinted at 1987 U.S.Code Cong. & Admin. News 2533, 2630, 2660.25 For the FAA to determine what would be the most efficient use of the airspace in the Orlando area, the FAA must consider both Gannett's towers and the proposed airport. If the FAA does not consider every proposal and every comment it receives during the comment period, it cannot make an accurate determination of the most efficient use of airspace.

The FAA argues that the first-come, first-served procedure is a rational approach to meeting its mandate of promoting the safe and efficient use of airspace and that it should not be required to weigh the value of one proposal over another. However, that is exactly what Congress intended, for as one senator stated, "[t]he amendment asserts that a balance should be struck between aviation and nonaviation use of the Nation's airspace." 133 Cong. Rec. S15264 (daily ed. October 28, 1987) (Statement of Sen. Chiles).26 Accordingly, in light of the holding in White and the 1987 amendments to the Federal Aviation Act, this court agrees with the Eighth Circuit that the FAA's first filing rule is arbitrary and capricious. The rule does not meet the FAA's congressional mandate of promoting safe and efficient use and preservation of navigable airspace.

IV. CONCLUSION

In conclusion, we GRANT the Aviation Authority leave to appeal the FAA's September 21, 1989, determination that a radio antenna complex for station WWNZ is not an obstruction under 14 C.F.R. § 77.23; we VACATE the FAA's September 21, 1989, determination and REMAND this cause to the FAA with instructions to reevaluate Gannett's proposal, in light of the Aviation Authority's proposed airport, and to make a determination that "will promote safety in air commerce as well as the efficient use and preservation of the navigable airspace and of airport traffic capacity at public-use airports," 49 U.S.C.App. § 1501(a) (1988); and we DISMISS appeal No. 90-3082, the December 5, 1989, FAA determination, on the basis that we lack subject matter jurisdiction to hear the appeal.

VACATED and REMANDED with directions.