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12/01/87 Edward A. Baker, D/B/A v. Federal Communications

December 1, 1987

EDWARD A. BAKER, D/B/A UNION CITY RADIO, APPELLANT

v.

FEDERAL COMMUNICATIONS COMMISSION, APPELLEE; LAND O'LAKES BROADCASTING CORPORATION, INTERVENOR 1987.CDC.507



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Notice of Appeal from an Order of the Federal Communications Commission.

APPELLATE PANEL:

Ruth B. Ginsburg and Starr, Circuit Judges, and Gesell, District Judge.* Opinion for the Court filed by Circuit Judge Starr.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STARR

This is an appeal from an order of the Federal Communications Commission upholding a decision by the Commission's Review Board granting an application to build an AM radio station in Troy, Ohio. Edward Baker, a contestant who had proposed to build a station in Union City, Indiana, asserts that the Commission erred in upholding the Review Board's reversal of the Administrative Law Judge's decision in his favor. We conclude that appellant's contention is well founded; accordingly, we reverse and remand to the Commission for further action consistent with this opinion. I

The pertinent facts can be briefly stated. In February 1979, Land O'Lakes Broadcasting Corporation (by its predecessor Cloverleaf Broadcasting Corporation) was issued a construction permit for a new AM broadcast station in Troy, Ohio, on 1510 kHz. No station, however, was constructed; instead, in July 1982, Land O'Lakes filed an application to modify its construction permit to change the frequency to 1030 kHz. The new frequency, which Land O'Lakes found more to its liking due to its greater commercial potential, became available as a result of the Commission's decision in 1980 to permit new stations on certain formerly "clear channel" frequencies. Brief for Appellee at 8 n.10.

This development did not go unnoticed, however. In the wake of Land O'Lakes' modification application, a number of contestants from several cities in Ohio, Indiana and five other States filed competing applications for this new spot on the dial. Shortly after the "A" cutoff date for filing applications, *fn1 Land O'Lakes filed an amendment to its application for modification. In pertinent part, that amendment stated as follows:

Please amend the above application to change from an application for modification of a construction permit to an application for a construction permit. . . . In light of current economic conditions, it no longer appears feasible to construct a [suitable facility] on a relatively undesirable frequency, while still maintaining an economically viable facility. Therefore, applicant has decided not to request any additional extentions of its construction permit. Rather, the permit will be allowed to expire and/or surrendered for cancellation, and the applicant desires to pursue its request for facilities on 1040 khz [sic], as an applicant for a new construction permit.

Amendment to Application for Modification of Construction Permit (filed Dec. 30, 1982), Joint Appendix at 15-16.

The apparent clarity of this proffered amendment was muddied by a transmittal letter from Land O'Lakes counsel. Contemplating the unhappy possibility that the proffered amendment might be deemed a "major change" within the meaning of the Commission's rules *fn2 (and thus require Land O'Lakes to be removed from consideration in the comparative proceeding),3 Land O'Lakes' counsel stated:

This amendment is tendered on the specific condition that it not be considered major [sic] change and, that it not result in the assignment of a new file number. In the event the Commission disagrees or believes, for any reason, that the amendment requires the assignment of a new file number, applicant does not desire to submit the amendment.

Letter from Lauren A. Colby, Attorney for Cloverleaf Broadcasting Corp., to William Tricarico, Secretary FCC (Dec. 30, 1982), J.A. at 14.

Thus matters stood until much later when, in May 1984, the FCC's Mass Media Bureau, in a two-sentence letter to Land O'Lakes' counsel, finally responded to the December 1982 request. In terse fashion, the Bureau's letter set forth the following conclusion: "Good cause has not been shown for the acceptance of this amendment; consequently, as you have requested, the amendment is being returned to you." Letter from H. John Morgan, Mass Media Bureau, to Lauren A. Colby (May 4, 1984) (J.A. at 13).

In short order, the Mass Media Bureau issued a hearing designation order setting the competing applications for hearing. J.A. at 2. Although the order did not separately address Land ...


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