# Coalition for the Preservation of Hispanic Broadcasting v. Federal Communications Commission, Univision Holdings, Inc., Intervenors

> Court of Appeals for the D.C. Circuit · March 27, 1990 · 893 F.2d 1349

URL: https://www.frixlaw.com/law-library/cases/9479900

## Case

- **Full name:** COALITION FOR THE PRESERVATION OF HISPANIC BROADCASTING, Et Al, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent, Univision Holdings, Inc., Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 27, 1990
- **Citations:** 893 F.2d 1349; 282 U.S. App. D.C. 200
- **Precedential status:** Published
- **Opinion:** Concurring in part by Williams
- **Judges:** Edwards, Mikva, Williams
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STEPHEN F. WILLIAMS, Circuit Judge,
dissenting in part and concurring in part of the judgment:
After extensive hearings before an administrative law judge, the FCC here approved a settlement that was satisfactory to all active participants in the administrative proceedings. Under its terms the FCC renewed Spanish International Communications Corporation’s disputed licenses but required their transfer to a third party. At *1363 the behest of two firms that may, for all we know, be no more than litigative shells, that played no material role in the administrative proceedings involving renewal, and that made no timely filings seeking comparative hearings for the licenses, the court today upsets the settlement. As I believe that neither firm has suffered a material injury, I dissent.
The two firms, Hispanic Broadcasting System and Hispanic Broadcasting Limited Partnership, claim standing as prospective license applicants. But as neither ever filed a timely application for the license they seek, neither appears before us as a runner-up, as did the petitioner in Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664 (D.C.Cir.1987), or even as a defeated contestant. In fact, if these parties are serious about competing for the stations (should they become vacant), they haven't told us about it, and their performance before both the Commission and the court supplies no basis for believing they are. They appear more as observers who have been lollygagging around the track while others strove. They have not demonstrated the “personal stake in the outcome of the controversy” necessary to satisfy the constitutional requirements of Article III. Warth v. Seldin, 422 U.S. 490, 498 , 95 S.Ct. 2197, 2205 , 45 L.Ed.2d 343 (1975) (internal quotations omitted).
It is true, of course, that nonrenewal of Spanish International’s licenses, if it were ultimately to result from invalidation of the settlement, would create vacancies for which HBS and the Partnership could compete. Given the edge the Commission allows incumbents in a comparative hearing, see Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503 (D.C.Cir.1982) (“renewal expectancy” of incumbent licensee may be a factor in comparative proceedings), the existence of a vacancy is a potential advantage. Further, neither a potential license contestant, nor a disappointed bidder, nor others claiming standing on comparable grounds, is by any means required to show for purposes of standing that it would have carried off the prize but for the alleged illegality. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977) (plaintiff seeking federal housing assistance); Regents of the University of California v. Bakke, 438 U.S. 265 , 280-81 n. 14, 98 S.Ct. 2733 , 2742-43 n. 14, 57 L.Ed.2d 750 (1978) (medical school applicant); CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1574-75 (Fed.Cir.1983) (disappointed federal contract bidder). Finally, in many such cases courts have framed the complainant’s injury simply as the loss of an opportunity to compete. See, e.g., C C Distributors, Inc. v. United States, 883 F.2d 146, 151 (D.C. Cir.1989) (disappointed bidder).
This hardly means, however, that anyone can wander in off the street, pronounce himself a potential contestant, and thereby recruit the courts to upset a decision of a coordinate branch of government. See An-tonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L.Rev. 881 (1983). Some indication of realistic prospects is also needed. As Judge Posner has observed, a medical school applicant could challenge a racial exclusion without proving that in its absence he would be admitted, but “he would not have standing if he was two years old.” Planned Parenthood Ass’n of Chicago v. Kempiners, 700 F.2d 1115, 1137 (7th Cir.1983) (concurring); see also Doherty v. Rutgers School of Law-Newark, 651 F.2d 893 (3rd Cir.1981) (no standing to challenge affirmative action program where plaintiff was otherwise clearly unqualified for admission).
The rationale for requiring an indication of serious prospects is simple enough: a lost opportunity is no loss at all if there is no realistic chance of winning once the supposed illegality is corrected. Those who without such prospects nonetheless bring suit are presumably either seeking to enjoy its nuisance value, see National Federation of Federal Employees v. Cheney, 883 F.2d 1038, 1053 (D.C.Cir.1989), or acting out of the sort of ideological interest that the Supreme Court has declared insufficient to confer standing. See, e.g., Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972).
In instances where an agency has held a contest and the plaintiff entered, it is typically plain from the record whether its prospects were serious. In the disappointed bidder cases that has often been true, and there we have insisted that the *1364 petitioners have been “ ‘within the zone of active consideration’ for the bid’s award.” National Federation, 883 F.2d at 1053 (quoting National Maritime Union v. Military Sealift Command, 824 F.2d 1228 , 1237-38 n. 12 (D.C.Cir.1987)). In many cases disappointed contract bidders found to have standing were in fact runners-up in the contest whose validity was challenged. See, e.g., Choctaw Manufacturing Co. v. United States, 761 F.2d 609, 613 (11th Cir. 1985); CACI, Inc., 719 F.2d at 1575 ; Armstrong & Armstrong, Inc. v. United States, 514 F.2d 402 (9th Cir.1975); but cf. Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 , 842 & n. 3 (D.C.Cir. 1982) (dictum that second-lowest bidder in original procurement had not shown enough likelihood of success on recompetition to challenge agency’s failure to terminate contract). Similarly, in Orange Park, an FCC case where we drew heavily on the disappointed bidder analogy, the plaintiff was the sole other applicant for the contested license. But for the Commission’s alleged error in allowing the winning applicant to make a curative amendment, plaintiff could have itself made an amendment curing its only apparent deficiency. 811 F.2d at 670-73 .
I have considerable doubt whether the present case calls for anything less than a showing by HBS and the Partnership that they were within the “zone of active consideration” — which they obviously were not. It is not the FCC’s fault, but theirs, that we have no clue as to their qualifications; these parties could have fought for Spanish International’s licenses in what would have been the equivalent of an open contest. The complaint questioning Spanish International’s qualifications was filed with the Commission in 1980, see J.A. 16 (designation order), and yet neither HBS nor the Partnership submitted competing applications for three Spanish International licenses up for renewal in 1982 and 1983, see Spanish International Communications Corp., 2 FCC Red 3336, 3337 (1987), at which times the Commission would have been required under its regulations to accept conforming submissions. See 47 CFR § 73.3517 (e) (1988). (The cut-off rules do not kick in during the investigation of such complaints, but only when designation for hearing occurs — in this case, not until June 1983.) The only applications they did manage to proffer were no less than three, and as many as seven, years late. See Spanish International, 2 FCC Red 3336, 3336-37, 3342 n. 8 (1987). Since the settlement they have passed up further opportunities to compete. See Commission Brief 29 n. 20 (no competing applications were filed against Hallmark’s requests for license renewal after the settlement). These parties were not even also-rans, much less runners-up.
Nonetheless, one might argue that HBS’s and the Partnership's prospects should be tested as if they had had no opportunity to compete, on the theory that Spanish International’s status as incumbent made their opportunities so unappealing as to excuse their failure to apply. (This requires disregard of Spanish International’s vulnerability once its qualifications were challenged.) Where for some reason no contest has been run, or the plaintiff for some other reason has had no chance to demonstrate whether it would place, courts have applied laxer standards. Thus in C C Distributors, allegedly illegal action cut off any opportunity to bid, but we relied on plaintiffs’ “demonstrated capacity to compete for and to obtain [similar] contracts” as assurance that an opportunity to compete “would not be illusory.” 883 F.2d at 151. See also Hayes International Corp. v. McLucas, 509 F.2d 247, 251 (5th Cir.1975) (petitioner had held contract similar to one whose award was challenged).
HBS and the Partnership would go even farther, relying on MG-TV Broadcasting Co. v. FCC, 408 F.2d 1257 (D.C.Cir.1968), for the notion that a possible license applicant can secure standing whenever the denial of others’ applications (which here would follow if agency proceedings took a favorable turn on remand) “would have left the station vacant and available for appellant’s application.” Id. at 1264 n. 24. If correct, of course, such a rule would afford anyone standing, as any vacancy creates such a theoretical opportunity for the whole world. But the court’s five lines of footnote addressing the point do not suggest that anyone had raised the issue of MG-TV’s prospects, and indeed no party had raised the standing issue at all. See Briefs of the Commission, MG-TV Broadcasting Co., and Intervenor Seven Arts *1365 Broadcasting Co., Inc., MG-TV Broadcasting Co. v. FCC, 408 F.2d 1257 (D.C.Cir. 1968) (No. 21,224). To the extent that MG-TV represents such a holding, our later decision in Orange Park, which wrestled at some length with the problem and did not find MG-TV worthy of citation, clearly supersedes. 1
It is true that Orange Park eschewed any prediction of the likelihood of the plaintiff’s ultimately prevailing. 811 F.2d at 672 -73 n. 18. But we reached that conclusion only after having determined that plaintiff “has devised plans sufficiently detailed to enable it to compete for the facility.” Id. The court emphasized that the petitioner could readily cure the deficiency in its original submission, that it stood “ready, willing and able” to reapply for the license, and that its intention to do so was “manifestly evident” from the record. Id. at 672-73 & n. 18. These represent the minimum requirements that one can extract from our cases.
Thus I turn to the record in a search for some hint that, if court action led to HBS’s or the Partnership’s having an opportunity to compete, it would be better than “illusory.” None appears. As noted, neither HBS nor the Partnership made any timely application for the licenses. Nor did either see fit even to join in the initial battle to unseat Spanish International. Such a commitment would have been at least an earnest of seriousness. Under Commission regulations, either could have petitioned to intervene in the proceedings as a matter of course within 30 days of the designation order of June 16, 1983. See 47 CFR § 1.223 (1988) (rules for intervention); J.A. 15 (designation order). The Partnership’s attempt to intervene fell three years too late, and the Review Board rejected its petition as “grossly out of time and defective.” Spanish International, 1 FCC Red 844, 847 n. 2 (Rev.Bd.1986). Its sole excuse, that it was not yet in existence by the relevant deadline, see J.A. 377, only underscores the ramshackle character of its interest. (The Commission upheld the Review Board’s ruling on intervention, and afforded the Partnership only amicus status. Spanish International, 2 FCC Red at 3338 n. 15.)
HBS did manage to participate, but very indirectly, and in what was perhaps the least promising avenue for challenging the Commission’s consideration of the transaction. Instead of petitioning to deny the conditional renewal of Spanish International’s license, it attacked only the transfer- or’s application to assign the license once renewed. J.A. 146. As even the Partnership concedes, this track did “not ... provide[] a meaningful opportunity to challenge the decision to permit the settlement,” Partnership Brief 20 n. 6, since Commission assent to renewal would necessarily entail assent to the assignment.
Finally, even before the court the roles of HBS and the Partnership suggest the improbability that either would be “ready, willing and able” to compete on a serious basis for the licenses should they fall vacant. Neither party asserts that it would in fact qualify as a licensee, cf. DKT Memorial Fund, Ltd. v. AID, 810 F.2d 1236 (D.C.Cir.1987), nor do they stoop even to state that they intend to compete for the stations should the vacancies occur. Neither has offered reason to believe that, in Orange Park’s words, it “has devised plans sufficiently detailed to enable it to compete for the facility.” 811 F.2d at 672 -73 n. 18. See also Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 717-19 (D.C.Cir. 1977) (no injury sufficient to challenge excess property sale where plaintiff had not demonstrated capacity to compete for purchase). Nor is this a case in which the mere fact of appeal might allow us to assume such qualification or intention. See National Maritime, 824 F.2d at 1237 n. 12 (“[presumably a bidder who believed that it would have no significant likelihood of obtaining the bid on re-solicitation would not bring suit”). As HBS appears simply as one signer of a joint brief with the closely related viewer petitioners, its continued role is as easily attributable to the interest in providing a back-up theory of standing as to any real interest in seeking the licenses. (It did not even bother to appeal the Commission’s dismissal of its *1366 belated applications.) As for the Partnership, a successful challenge to the Commission’s cut-off rules would have made it the sole candidate for the licenses other than Spanish International. 2 But that alone gives no hint that it would be anywhere near the ballpark in an open competition, which is the sort that could result here and which would likely attract some heavy hitters. Thus, what distinguishes HBS and the Partnership from the rest of the world is that they belatedly filled out a few forms. That is not enough.
By contrast, TVL was plainly within the zone of active consideration. It was one of two finalists in the sales process supervised by the California district court, at least three other bidders having been eliminated elsewhere along the way. At the time the court approved Hallmark’s offer TVL had firm financing commitments for $250 million of a $320 million bid; within a mere three days it had lined up the other $70 million. If its claim of racial discrimination in the district court proceedings were meritorious, and if Commission approval of the settlement in the face of such discrimination were substantively invalid, its proposed remedy — delay of the settlement to allow reconsideration of its original bid in the light of its later acquisition of full financing — would plausibly give it a shot at the licenses. As TVL does not challenge the settlement on Jefferson Radio grounds, however, its standing provides no support for today’s outcome. 3
As the majority finds standing for HBS and the Partnership it need not resolve that of the self-identified viewer petitioners, the Coalition for the Preservation of Hispanic Broadcasting and Susan Jaramillo. Maj. Op. at 1354-1355. As the court notes, there is no evidence to suggest that Congress adopted § 310(b)(3)’s restrictions on alien control in order to advance the public’s interest in programming content. Indeed, such evidence as the parties have uncovered suggests a national security purpose. See Maj. Op. at 1351. Moreover, whatever may have animated Congress, it surely did not restrict foreign license ownership in order to enhance non-English-language programming. Thus the Coalition’s interest in preserving Spanish-language programming, J.A. 390, is “so ... inconsistent with the purposes implicit in the statute” that their standing would be wholly inappropriate. See Clarke v. Securities Industry Ass’n, 479 U.S. 388, 399 , 107 S.Ct. 750, 757 , 93 L.Ed.2d 757 (1987).
For her part, Jaramillo objects to “foreign domination” of the supply of Spanish-language programming, J.A. 491, so that if § 310(b)(3) reflected any interest in programming content, she might occupy at least a non-adverse relation to its goals. But her standing fails for want of a material injury. Since the settlement eliminated the possibility of alien domination over the stations, her interest in all-American Spanish-language programming could benefit from this litigation only to the extent that Commission rejection of the settlement might have tended to deter future violations of § 310(b). This is too speculative to satisfy Article III. Compare Linda R.S. v. Richard D., 410 U.S. 614 , 93 S.Ct. 1146 , 35 L.Ed.2d 536 (1973) (invalidation of state’s refusal to enforce criminal non-support laws against fathers of illegitimate children bears too speculative a relation to any prospect that mother of illegitimate child would fare better in extracting child support from father).
*1367 Nor can either the Coalition or Jaramillo stand upon the purposes of the Jefferson Radio doctrine, for it is entirely instrumental, aimed only at enhancing the deterrent effect of whatever substantive provision supports the attack on the incumbent licensee, here § 310(b)(3). See Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026, 1027 (D.C.Cir.1981).
Thus, of the four petitioners who challenge the settlement on Jefferson Radio grounds, three show no material injury and the Coalition asserts an interest that is in apparent conflict with the purposes of § 310(b). Yet at the behest of the two purported license applicants the court today upsets a carefully arranged and (so far as appears) useful agreement. The settlement cures whatever violation of § 310(b)(3) may have existed. It frees Commission time for other matters. It satisfies the group that pressed the § 310(b)(3) challenge before the Commission, the Spanish Radio Broadcasters Association. And, so far as Jefferson Radio’s object of maintaining deterrent effect is concerned, the record reveals no hint that violations of § 310(b)(3) are so widespread as to require much deterrence.
******
As I believe that we have no jurisdiction over the Jefferson Radio issue, I neither join nor dissent from the opinion on that point. But compare McKelvey v. Turnage, 792 F.2d 194, 209 (D.C.Cir.1986) (Scalia, J., dissenting from jurisdiction but joining on merits). A few words may be in order, however, lest the majority opinion be misinterpreted on remand. Compare Atari Games Corp. v. Oman, 888 F.2d 878, 879 (D.C.Cir.1989) (Silberman, J., concurring). As I understand the opinion, it reads the Commission’s Jefferson Radio doctrine as absolute, one of unwavering unwaivering, subject only to specific, discrete exceptions. The Commission’s fault is the perceived inadequacy of its explanation for softening the doctrine. On remand, therefore, the Commission is free, for example, to explicitly change the doctrine into a balancing test, so long as it explains adequately. See, e.g., NLRB v. Local Union No. 103, 434 U.S. 335, 351 , 98 S.Ct. 651, 660 , 54 L.Ed.2d 586 (1978) (“[a]n administrative agency is not disqualified from changing its mind”); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir. 1971).
Whatever the merits of the majority’s reading of Jefferson Radio, I am puzzled by its concern over the Commission’s decision not to pursue the claims of Spanish Radio Broadcasters of America that Spanish International had brought antitrust actions against it as a form of harassment. Maj. Op. at 1361-1362. The AU rejected these claims as lacking sufficient evidence of bad faith, and the claimant has withdrawn them as part of the settlement. The court expresses concern that the withdrawal may have been motivated by an exchange of consideration. Id. at 1362. I would not be surprised; that is how many conflicts before the FCC come to an end. But if the Commission must press every abandoned suggestion of hanky-panky through to the bitter end, or must satisfy itself that the accuser in retreat was pure of heart, uncorrupted by any trade-off, it will never be able to get on with its business. The FCC is not some sort of general morals police.
That aside, regardless of what course the Commission might take on remand, the context — agency choice among remedies — requires much discretion for the agency and deference from the court. See, e.g., Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 , 78 S.Ct. 377, 379 , 2 L.Ed.2d 370 (1958) (noting resource allocation problem and need for specialized, experienced judgment). Remedial choices demand both a grasp of the scope of the evil to be remedied (and thus how much deterrence is needed), and a predictive judgment as to deterrent effects. Judges are unlikely to be able to contribute much on either issue. See generally FCC v. WOKO, Inc., 329 U.S. 223, 228-29 , 67 S.Ct. 213, 215-16 , 91 L.Ed. 204 (1946); West Coast Media, Inc. v. FCC, 695 F.2d 617, 622 (D.C.Cir.1982); Lorain Journal Co. v. FCC, 351 F.2d 824 , 831 (D.C.Cir.1965). Moreover, the need for judicial deference is at its peak where (as here) the remedy is secured as part of a settlement. The Commission is effectively making a decision as to the allocation of its resources — a decision whether the gain in deterrent effect that might flow from pursuing the case to the hilt is worth the loss, in terms of energy deflected from other matters. See Board of Trade v. SEC, 883 *1368 F.2d 525 , 530-31 (7th Cir.1989) (“declining a particular case hardly means that the [agency's staff] will go twiddle their thumbs”); cf. Heckler v. Chaney, 470 U.S. 821, 831-32 , 105 S.Ct. 1649, 1655-56 , 84 L.Ed.2d 714 (1985). Oddly, if the Commission on remand were to affirm the ALJ’s finding of a violation, it could settle with Spanish International untrammeled by the Jefferson Radio doctrine and in full enjoyment of the deference that is well-established for remedial choices. See Bartell Broadcasting Inc., 19 FCC2d 890 (1969); Areawide Communications, Inc., 12 FCC2d 170 (1968) (both allowing transfer at full market value despite licensee violations of 47 U.S.C. § 310 (d)).
We should not interfere with the Commission on this matter, at the instigation of parties with such feeble stakes.
ORDER
Opinion for the Court filed Per Curiam.
Per Curiam: Before us is the petition of Hispanic Broadcasting Limited Partnership (“HBLP”) to supplement the relief ordered in this case by directing the FCC to require the parties to restore the status quo ante which existed prior to and pending completion of the renewal proceedings at issue in this case. In the opinion, we remanded the case to the Commission with instructions either (1) to complete the renewal proceedings that were pending at the time the Commission approved a transfer of the subject licenses to Hallmark Cards, Inc.; or (2) to articulate and explain a new policy that would modify the Commission’s longstanding policy forbidding assignment at full value of broadcast stations while proceedings on the incumbent licensee’s qualifications or pending completion. We decline to grant HBLP’s request that we order the Commission not to allow Hallmark to continue operating the stations during the remand proceedings. We do not believe that such an order is in any way a necessary or appropriate aspect of remedying the error found. Were we to require forthwith the disestablishment of Hallmark as the licensee, the remand proceedings would only be delayed further. The Commission decided to approve the transfers in question more than two years ago. We expect that on remand the Commission will proceed with reasonable dispatch so that the question of permanent authorization can be resolved promptly, finally, and without interim remedies. Nor can we assume that the Commission will feel compelled by the fact of Hallmark’s tenure as the licensee simply to ratify its earlier decision approving the transfer of the several stations. A central purpose of administrative law is to require reasoned decision making on the part of federal agencies. If, upon remand, the Commission came to the conclusion that Hallmark was required to vacate the licenses, a risk that Hallmark assumed will have materialized, and we assume that the Commission will do what is necessary.
. The various opinions in Shurberg Broadcasting v. FCC, 876 F.2d 902 (D.C.Cir.1989), assumed standing and did not assess the seriousness of Shurberg’s quest. In any event, cases in which jurisdiction is assumed are not authority for the existence of jurisdiction. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 119 , 104 S.Ct. 900, 918 , 79 L.Ed.2d 67 (1984).
. Because the Commission’s application of its timeliness rules prevented the Partnership from demonstrating its ability to place, it clearly could secure standing to challenge that denial without showing that it would have been "within the zone of active consideration." But without some indication of ability to meet the Commission’s minimum qualifications, as required in Orange Park, it should not have standing even to attack the denial.
. On the merits of TVL’s daim, I concur in the court's result, but on somewhat different grounds. Its filings before the Commission never made clear its current theory that Commission approval of a transfer to Hallmark violated the Equal Protection clause because it would incorporate or build upon the alleged discrimination in the district court proceedings. Whatever the merits of this claim, it appeared before the Commission more as a wholly implausible effort to get the Commission to set itself up in judgment over the district court and Ninth Circuit on constitutional matters, with no explicit claim of discrimination by the Commission. See TVL Petition to Deny, Sept. 26, 1986 (J.A. 213); TVL Application for Review, July 24, 1987 (J.A. 458). Accordingly, it fails under the principle that a sow’s ear argument before an agency does not require the agency to make a silk purse response. See City of Vernon v. FERC, 845 F.2d 1042, 1047 (D.C.Cir.1988).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479900. Public record. Not legal advice.