Opposition Brief — Bywater Neighborhood Ass'n v. Federal Communications Commission

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No. 89-898 ~ ' FEB 6 yam

JOSEPH FO SPANIOL, up

. EE CLERK

Iu the Supreme Court of the Unit

OCTOBER TERM, 1989

BYWATER NEIGHBORHOOD ASSOCIATION, PETITIONER

V.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

DAVID C. SHILTON

M. ALICE THURSTON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

aw

QUESTION PRESENTED

Whether the district court lacked jurisdiction to

review environmentally based challenges to an on-

going Federal Communications Commission broad-

cast licensing proceeding.

(1)

TABLE OF CONTENTS

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Statement:

1. Statutory and regulatory background ..................

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TABLE OF AUTHORITIES

Cases:

Bilingual Bicultural Coalition on Mass Media, Inc.

v. FCC, 595 F.2d 621 (D.C. Cir. 1978) .................

City of Alexandria v. Helms, 728 F.2d 643 (4th

A iene SE CCR VOLE

City of Rochester v. Bond, 603 F.2d 927 (D. C. Cir.

SES SRISIRRE AEs A yp een RA Ee

Denberg v. United States R.R. Retirement Bd.,

696 F.2d 1193 (7th Cir. 1983), cert. denied, 466

SB Rare rien Sn ee ae a ae

FCC v. ITT World Communications, Inc., 466 U.S.

a alnadcineden

Florida Power & Light Co. v. Lorion, 470 U.S. 729

ks Seg REESE ewe eOe RE NPE NES NN i eve

Friends of Sierra R.R. v. ICC, 881 F.2d 663 (9th

Cir. 1989), petition for cert. pending sub nom.

Tuolumne Park & Recreation Dist. v. ICC, No.

NRE aS PR ARCs PES Sa

Lerain Journal Co. Vv. FCC, 351 F.2d 824 (D.C. Cir.

1965), cert. denied, 383 U.S. 967 (1966) .............

Myers Vv. Bethlehem Shipbuilding Corp., 303 U.S.

SLL APES RBS sca oP oe Cee

Northbanke Corp., 46 Rad. Reg. 2d (P & F) 453

| TEES vernnen enone eran runenees

Suburban O’Hare Comm’n V. Dole, 787 F.2d 186

(7th Cir.), cert. denied, 479 U.S. 847 (1986) ......

(III)

15

la

12

IV

Cases—Continued : Page

Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980),

cert. denied, 449 U.S. 1096 (1981) -.....00002002. 13

Telecommunications Research & Action Center V.

FCC, 750 F.2d 70 (D.C. Cir. 1984) ...................... 10, 11

Tomah-Mauston Broadcasting Co. v. FCC, 306

i 9 3 Bi lei Ae. ; SRR aRaneneeRenemne me meres 10

UA-Columbia Cablevision, Inc., 55 F.C.C.2d 656

5 AROS IER es oP aee Ar ieee calla RSI Nici eS Ee 2

Vieux Carre Property Owners, Residents & Assocs.

v. Brown, 875 F.2d 453 (5th Cir. 1989), cert.

denied, No. 89-563 (Jan. 8, 1990) -............-22.20...... 11

Washington Utilities & Transp. Comm’n v. FCC,

513 F.2d 1142 (9th Cir. 1975), cert. denied, 423

i. SI Me I ac cscenccancieersiecupaionesuaondagseviensinmmenncenteae 12

Whitney National Bank v. Bank of New Orleans

& Trust Ce., 379 U.S. 411 (1966) ....................... ; 10

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 703 .......... 1

Communications Act of 1934, 47 U.S.C. 151 et seq...

I he a oc eng dn fencintencvedaions 2.

47 U.S.C. 308-309 (1982 & Supp. V 1987)..........

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Declaratory Judgment Act, 28 U.S.C. 2201 et seq...

Mandamus Act, 28 U.S.C. 1361 ...................................

National Environmental Policy Act of 1969, 42

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National Historic Preservation Act of 1966, 16

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Statutes and regulations—Continued : . Page

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36 C.F.R.:

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47 C.F.R.:

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Section 1.1308 (a)

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Sections 74.631-74.632 .......... hicadicelopiamabamebadns

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Miscellaneous:

Amendment of Part 78 of the Commission’s Rules

Concerning Licensing Procedures and Reporting

Requirements in the Cable Television Relay

Service, 100 F.C.C.2d 1136 (1985) ....................... 3

50 Fed. Reg. (1985) :

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Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-898

BYWATER NEIGHBORHOOD ASSOCIATION, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

9a) is reported at 879 F.2d 165. The opinion of the

district court (Pet. App. 10a-1la) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on August 8, 1989. On November 6, 1989, Justice

White extended the time within which to petition for

a writ of certiorari to and including December 6,

1989, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

1. Statutory and Regulatory Background. The

Federal Communications Commission has exclusive

jurisdiction under the Communications Act of 1934,

47 U.S.C. 151 et seq., to license the use of the radio

spectrum. 47 U.S.C. 301. Television microwave sta-

tions, known as “studio-transmitter links” (STLs),'

are among the types of facilities the FCC licenses.

STLs send a broadcast station’s signal from its

studio to its transmitter for transmission to the

general public. They may be located on buildings, on

existing towers, or—as proposed in this case—atop

a specially constructed tower.

a. Applicants for certain facilities, including, for

example, radio or television broadcast stations, must

receive specific permission to construct their facili-

ties (47 U.S.C. 319(a) and (d)). When the station

is ready to go on the air, the owner applies for an

operating license (47 U.S.C. 319(c)). For certain

other facilities, the applicant files a single applica-

tion for permission both to construct and to operate

the facility. See UA-Columbia Cablevision, Inc., 55

F.C.C.2d 656, 660 (1975).

1 An STL is defined at 47 C.F.R. 74.601(b), which states as

follows:

TV STL station (studio-transmitter link). A fixed station

used for the transmission of TV program material and

related communications from the studio to the transmit-

ter of a TV broadcast or Jow power TV station or other

purposes as authorized in § 74.631.

Its permissible uses are set forth in 47 C.F.R. 74.631(b):

A television broadcast STL station is authorized to trans-

mit visual program material between the studio and the

transmitter of a television broadcast station for simul-

taneous or delayed broadcast.

3

STLs are in a third category of facilities, in whicn

the FCC licenses only the operation, not the construc-

tion, of the facility. FCC Form 327, 50 Fed. Reg.

23,417, 23,418 (1985); see Amendment of Part 78

of the Commission’s Rules Concerning Licensing

Procedures and Reporting Requirements in the Cabie

Television Relay Service (Cable Relay Service), 100

F.C.C.2d 1136, 1139 (1985). Although the applicant

-need not receive an operating permit before building

such a facility, it cannot operate the facility until it

applies for and receives permission te do so (47

U.S.C. 301). With this “one-step” procedure, an

applicant that constructs any part of its facility or

appurtenant structures before receiving operating-

authority takes the risk that such authority will be

denied and it will be unable to use the facility.

Construction of facilities subject to the one-step

procedure is thus generally governed only by local

regulations and zoning restrictions. See 47 C.F.R.

74.631-74.632.° Nevertheless, the FCC will not au-

thorize the operation of facilities unless it has rea-

sonable assurance that the facility will comply with

local ordinances. For example, the FCC will not issue

an operating permit for a transmitter to be located

on top of a supporting tower the construction of

which would be prohibited by local zoning restric-

tions. See, e.g., Northhanke Corp., 46 Rad. Reg. 2d

(P & F) 453, 457 (FCC 1979). -

b. When the FCC receives an application to oper-

ate an STL, the agency announces the filing to the

public (47 C.F.R. 73.3564(c)). Members of the

public may challenge the STL application by filing

2 Of course, if a proposed STL supporting tower would

constitute a potential hazard to air traffic, federal regulations

apply. See 47 C.F.R. 17.7.

4

an informal objection at any time before the FCC

acts on the application (47 C.F.R. 1.41, 73.3587). If

the FCC receives an informal objection it will con-

sider the allegations therein, together with the re-

sponse of the applicant, before deciding whether to

grant the application. The FCC may grant an ap-

plication only if it finds that the “public interest,

convenience and necessity would be served” thereby

(47 U.S.C. 309 (a)).

c. FCC public interest determinations are subject

to the National Historic Preservation Act of 1966

(NHPA), 16 U.S.C. 470 et seg. Under Section 106

of the NHPA, 16 U.S.C. 470f, a federal agency head

with jurisdiction over a federally licensed undertak-

ing must consider the effects of the undertaking on

properties included in or eligible for the National

Register of Historic Places. Before approving any

such undertaking, the agency must afford the Ad-

visory Council on Historic Preservation a-reasonable

opportunity to comment on the undertaking. See also

36 C.F.R. 800.1(c) (i) and 800.6 et seg. By FCC reg-

ulation, the Commission complies with these NHPA-

imposed duties by requiring applicants who seek to

operate “[f]acilities that may affect districts, sites,

buildings, structures or objects * * * that are listed,

or are eligible for listing, in the National Register

of Historic Places” to comply with special processing

requirements (47 C.F.R. 1.1307). Those applicants

must note in the application that the facility might

have a significant impact on a historic site. and must

provide the Commission with sufficient information

*Section 309(c) (2) (E) and (d) (1) of the Communica-

tions Act, 47 U.S.C. 309(c) (2) (E) and (d) (1), preclude

filing of a formal petition to deny an STL application. Com-

pare 47 U.S.C. 309(b) and (d) (1).

5

to enable the FCC to carry out its duties under the

NHPA (47 C.F.R. 1.1308(a)).* If the applicant

notes the possibility of significant historic preserva-

tion concerns, the FCC then consults with the Ad-

visory Council before determining whether the facil-

ity will have a significant impact on a historic site

(47 C.F.R. 1.1314(d) ; 36 C.F.R. 800.6). If such an

impact is found to exist, the FCC’s rules specify

procedures to mitigate the impact or to balance the

need for the facility against the impact (47 C.F.R.

1.1314-1.1319). Under the one-step licensing proce-

dure, the license application must contain the neces-

sary information, and any special processing re-

quired must be completed before the license is

granted (47 C.F.R. 1.1312). Informal objections

may include challenges to the adequacy of compliance

with these NHPA procedures (47 C.F.R. 1.1307(c),

1.1313).

d. The United States Court of Appeals for the Dis-

trict of Columbia Circuit has exclusive jurisdiction

over appeals by any person “who is aggrieved or

whose interests are adversely affected by any order

of the Commission granting or denying any applica-

tion” for a construction permit or station license (47

U.S.C. 402(b) (1) and (6)).

2. History of the Case. Petitioner challenges an as

yet incomplete FCC licensing proceeding, seeking to

enjoin construction of an STL facility by respondent

*The FCC is entitled to rely on the representations of -

applicants, who are “well aware of their duty, not only to

avoid positive untruths, but to ‘be scrupulous in providing

complete and meaningful information.’ ” Bilingual Bicultural

Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 635

(D.C. Cir. 1978) (quoting Lorain Journal Co. v. FCC, 351

F.2d 824, 830 (D.C. Cir. 1965), cert. denied, 383 U.S. 967

(1966) ).

6

Crescent City Communication Company, Inc., which

currently holds a television station construction and

operating permit for WCCL-TV, Channel 45 in New

Orleans.’ On July 11, 1988, respondent Crescent City

applied, pursuant to 47 U.S.C. 308-309 (1982 &

Supp. V 1987), for a permit tv operate an appur-

tenant STL. The application did not disclose that

the supporting tower respondent Crescent City pro-

posed to build for its STL would be located in the

Bywater Historic District in New Orleans, which is

listed in the National Register of Historic Places by

the United States Department of the Interior (Pet.

7). The application was placed on public notice on

July 25, 1988. FCC Public Notice No. 14,224.

On November 16, 1988, petitioner filed its com-

plaint in district court seeking to enjoin further con-

struction of the tower in the historic district: on

December 19, 1988, it petitioned the Commission to

deny respondent Crescent City’s STL application. On

December 15, 1988, respondent Crescent City sub-

mitted an environmental assessment as an amend-

ment to its FCC license application. See 47 C.F.R.

1.13807(a) (4) and 73.3522. As required by 47 C.F.R.

1.1307(a) (4), the EA revealed that the tower is

located in the Historic District. At that time, the

FCC deferred further processing of respondent Cres-

cent City’s STL license application, in order to en-

Sure compliance with the FCC’s NHPA regulations,

47 C.F.R. 1.1308. Pet. App. 29a-30a.° Thus, al-

5 Crescent City currently operates the station under *““pro-

gram test authority” pursuant to 47 C.F.R. 73.1620. The sta-

tion’s application for its full operating license is pending at

the FCC.

® Processing was further delayed following a February 22,

1989, state court order revoking the local Board of Zoning

7

though petitioner asserts (Pet. 9) that the STL sup-

porting tower has been constructed, the FCC has, to

date, neither approved nor denied the application

(Pet. App. 2a). Accordingly, the STL facility is not

operative.

In its complaint, petitioner alleged that the FCC

violated the NHPA, as well as the National Environ-

mental Policy Act of 1969, 42 U.S.C. 43821 et seq., by

failing to consult with the Advisory Council and by

failing to take into consideration the environmental

impact of the project before allowing the tower’s con-

struction. Petitioner asserted that “‘the FCC has au-

thorized the construction and installation of * * *

[the] STL tower. The FCC contemplates no further

action or scrutiny of this project prior to the con-

struction of the tower.” Complaint 11. As relief,

petitioner requested (1) a declaratory judgment that

the FCC violated the NHPA and NEPA; (2) a tem-

porary restraining order and preliminary injunction

enjoining construction and operation of the support

tower; and (3) award of attorney’s fees and costs.’

Adjustment’s approval of a zoning variance for the STL

tower’s construction.. That order resulted from a suit by

petitioner against the zoning board challenging the grant of

two variances to permit the construction of the tower and

transmitting antennas. No. 88-13047 (La. Civ. Dist. Ct.

Orleans Parish) (App., infra, la-5ba). The FCC informs us

that respondent Crescent City is currently utilizing, pursuant

to temporary FCC authorization, an STL mounted on a build-

ing. Although respondent Crescent City has indicated its con-

tinued interest in obtaining an operating permit for the STL

at issue in the instant proceeding, no further action is con-

templated on its application for that permit until the zoning

question is resolved. : 7

7 The complaint also sought a permanent injunction requir-

ing removal of an appurtenant facility constructed by re-

8

The district court dismised the complaint on the

ground that the United States Court of Appeals for

the District of Columbia Circuit has exclusive juris-

diction over this matter (Pet. App. 10a-lla), and the

court of appeals affirmed (id. at la-9a). The court

of appeals agreed that jurisdiction over challenges to

FCC licensing actions lies exclusively with the Dis-

trict of Columbia Circuit (id. at 4a-8a); it also re-

jected petitioner’s claim of jurisdiction under the

Mandamus Act, 28 U.S.C. 1361, as well as the De-

claratory Judgment Act, 28 U.S.C. 2201 et seq., ad-

hering to “the general principle that Congress’s ex-

clusive and specific review procedure should be fol-

lowed” (Pet. App. 7a). The court observed that once

a final order issues with regard to the STL applica-

tion, petitioner “must follow the path Congress has

laid out for judicial review” of that order (id. at 9a).

ARGUMENT

1. Petitioner’s objection is to the construction of

the support tower for the STL facility. Its effort to

obtain a remedy from the FCC for that construction

is based on a fundamental misapprehension of the

scope of the Commission’s licensing authority. The

Commission licenses the operation of the facility. It

does not license the construction of its support tower;

still less does it control the applicant’s decision con-

spondent Notel, a company associated with respondent Cres-

cent City. That request for relief was based on the com-

plaint’s challenge to two related applications of respondent

Notel to construct and operate two satellite earth stations.

The petition does not seek review of the court of appeals’

determination that petitioners failed to exhaust their admin-

istrative remedies before seeking judicial review of those

applications. See Pet. 9 n.10.

9

cerning where the tower will be placed. And the de-

cision whether the facility is to be placed on a build-

ing, an existing tower, or a tower constructed ex-

pressly for the purpose, is up to the applicant, not the

FCC. The FCC has no more authority to direct the

applicant to remove the support tower at issue here

than it would have to require the removal of a build-

_ ing, simply because the applicant intended to place its

STL facility on it. The dispute over the construction

of the tower is for the local authorities, not the FCC.

See note 6, supra. Moreover, despite petitioner’s ap-

parent contrary assumption, the Commission’s ac-

tions in this case convincingly demonstrate that the

Commission will require compliance with the appli-

cable NHPA procedures before issuing any license

for the operation of the STL on the challenged tower.*

2. In any event, the court of appeals correctly con-

cluded that review of FCC licensing actions may be

had only in the United States Court of Appeals for

the District of Columbia Circuit. That determination

does not conflict with any. decision of this Court or

of any other court of appeals. Further review is

therefore not warranted.

The review of broadcast licensing matters is vested

in the United States Court of Appeals for the Dis-

trict of Columbia Circuit by 47 U.S.C. 402(b), which

provides that:

~ Appeals may be taken from decisions and or-

ders of the Commission to the United States

Court of Appeals for the District of Columbia

in any of the following cases:

* * * *

8 Petitioner has not contended that those procedures are

inadequate.

10

(6) By any * * * person who is ag-

grieved or whose interests are adversely af-

fected by any order of the Commission

granting or denying any application * * *.

Although this provision refers in terms to “deci-

sions and orders of the Commission,” and permits an

appeal by a person “affected by any order,” it is

clearly established that it vests judicial review of all

eases “involving the exercise of the Commission’s

radio-licensing power’—including a refusal to exer-

cise that power—in the United States Court of Ap-

peals for the District of Columbia Circuit. Tomah-

Mauston Broadcasting Co. v. FCC, 306 F.2d 811, 812

(D.C. Cir. 1962) (denial of a petition to revoke a

construction permit).

Even in the absence of an express exclusivity

provision—like that contained in 28 U.S.C. 2342(1)

for certain final FCC orders—explicit statutory re-

view procedures of the kind contained in 47 U.S.C.

402(b) are presumed to be exclusive of other avenues

of review. Whitney National Bank v. Bank of New

Orleans & Trust Co., 379 U.S. 411, 422 (1965). Such

grants of exclusive review power have long been held

to be constitutional. See Myers v. Bethlehem Ship-

building Corp., 303 U.S. 41, 48-50 (1938).

Because Congress has created a statutory review

scheme that is exclusive, the federal district courts

lack jurisdiction over licensing matters. FCC v. ITT

World Communications, Inc., 466 U.S. 463, 468

(1984); Florida Power da: Light Co. v. Lorion, 470

U.S. 729, 741 (1985); Telecommunications Research

cd Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir.

1984) (TRAC) (“even where Congress has not ex-

pressly stated that statutory jurisdiction is ‘exclu-

sive,’ as it has here with regard to final FCC actions,

11

a statute which vests jurisdiction in a particular

court cuts off original jurisdiction in other courts

in all cases covered by that statute”). As the court

recognized in TRAC, it follows that the District of

of Columbia Circuit has exclusive jurisdiction, even

in the absence of final agency action, “to hear suits

seeking relief that might affect [that court’s] future

statutory power of review.” 750 F.2d at 72.

Similarly, district court review is not available un-

der the Administrative Procedure Act, 5 U.S.C. 703,

which provides for district court review when statu-

tory review is inadequate: “[w]here statutory re-

view is available in the Court of Appeals it will

rarely be inadequate.” 750 F.2d at 78.° The court

below therefore correctly gave effect to “‘Congress’s

specific and obvious intent to restrict to the circuit

® Petitioner asserts (Pet. 5) that 16 U.S.C. 470w-4, the

NHPA provision governing the award of attorney fees, pro-

vides another alternative jurisdictional basis for its suit. The

court of appeals, relying on its previous decision in Vieux

Carre Property Owners, Residents & Assocs. V. Brown, 875

F.2d 453 (5th Cir. 1989), cert. denied, No. 89-563 (Jan. 8,

1990), similarly suggested that Section 470w-4 creates a

private right of action (Pet. App. 3a, 6a). We submit that

the statutory language (which provides in relevant part that

“Tiln any civil action brought in any United States district

court by any interested person to enforce the provisions of

this subchapter, * * * the court may award attorneys’ fees,

* * * and other costs”) simply permits the award of at-

torney fees and costs in civil actions otherwise authorized

to be brought in district courts. In any event, even if this

provision could otherwise be interpreted as creating a right

. of action to enforce the NHPA, it could not overcome the

explicit, limited jurisdictional provision contained in Section

402(b), as the court of appeals correctly recognized (Pet.

App. 6a-7a). Accordingly, the court’s remarks about the at-

torney fee provision of the NHPA are dicta.

12

courts any appeals from rulings of the FCC” (Pet.

App. 6a). It accordingly determined that, upon is-

suance of a final licensing order, ‘‘[ petitioner’s] com-

plaint will fall squarely within section 402(b) (6),

and venue will lie only in the District of Columbia

Circuit.” Pet. App. 9a.

The principles just discussed are not affected by

the fact that petitioner seeks to litigate environ-

mental issues. ~It is clearly established that, even in

such circumstances, statutorily prescribed review

procedures must be followed: there is no concurrent

jurisdiction in the district court simply because a

violation of an environmental statute such as NEPA

or the NHPA is alleged. City of Rochester v. Bond,

603 F.2d 927, 931 (D.C. Cir. 1979); Suburban

O’Hare Comm’n vy. Dole, 787 F.2d 186, 192-193 (7th

Cir.), cert. denied, 479 U.S. 847 (1986); City of

Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984);

Washington Utilities & Transp. Comm'n v. FCC, 513

F.2d 1142, 1167-1168 (9th Cir.), cert. denied, 423

U.S. 836 (1975) .’°

10 For example, in City of Rochester v. Bond, supra, the ap-

pellants attempted to invoke district court jurisdiction to

challenge an FAA order (a “‘no hazard determination” re-

garding a radio antenna tower) and the resulting FCC con-

struction permit. They maintained that both agencies failed

to comply with NEPA by not preparing an Environmental

Impact Statement, and alleged that district court review was

available for their NEPA claims. The court of appeals stated

unequivocally that “‘we disagree that the district court may

exercise concurrent jurisdiction merely because a violation of

NEPA is alleged. The allegation may be raised directly in

the courts of appeals; and insofar as it may affect the lawful-

ness of a directly appealable order we think it must be.” 603

F.2d at 936. Accordingly, review of the FAA order and the

FCC permit was available only in the court of appeals. 7d.

at 938-939.

13

The case cited by petitioner (Pet. 11, 14) in sup-

port of its claim that the circuit courts allow interim

review of agency actions pending final determina-

tions stands alone, and in any event does not present

a square conflict with the decision below. In Susque-

hanna Valley Alliance v. Three Mile Island Nuclear

Reactor, 619 F.2d 231 (3d Cir. 1980), cert. denied,

449 U.S. 1096 (4981), the court held that a private

party seeking to compel agency compliance with

NEPA need not exhaust administrative remedies be-

fore filing suit in federal district court to challenge

the Nuclear Regulatory Commission’s informal au-

thorization of the discharge of contaminated water.”

In Susquehanna, the plaintiffs challenged a specific

agency action—authorization to the licensee to begin

installation of a water treatment system without

NEPA compliance (619 F.2d at 240 n.10). Here, by

contrast, petitioner acknowledges that the FCC has

given no approval at all. Pet. 6, 7-8. Thus, while we

disagree with the result reached in Susquehanna, the

facts there presented a more colorable justification

for judicial intervention than is presented here.

11JIn dissenting from the denial of certiorari in Susque-

hanna, Justice Rehnquist (joined by the Chief Justice and

Justice Powell) noted (449 U.S. at 1096, 1100) that the hold-

ing of the Third Circuit is contrary to this Court’s settled

teaching on exhaustion of administrative remedies, and that

the ‘“‘trifurcated review procedure [resulting from the Third

Circuit’s holding] is not only ivefficient, duplicating judicial

and administrative effort, but more importantly, it leads to

premature interference with agency processes, contrary to

the policy underlying direct review statutes.” Justice Rehn-

quist observed that the Solicitor General, in the government’s

memorandum in opposition to the petition for certiorari,

stated that Susquehanna had been incorrectly decided, but

was anomalous and probably would be of little precedential

effect. 449 U.S. at 1100.

ace aaa Lil

14

Moreover, the holding in Susquehanna has subse-

quently been distinguished by the Seventh Circuit as

applying in ‘“‘very special circumstances, as when the

administrative proceeding is informal and the record

of that proceeding has to be reconstructed in the judi-

cial review proceeding before the judicial review

proper can begin.” Denberg v. United States R.R.

Retirement Bd., 696 F.2d 1193, 1196 (1983), cert.

denied, 466 U.S. 926 (1984). There is no indication

in this case that the record before the FCC will be

inadequate to review compliance with the NHPA.”

2. Petitioner’s second question is not properly pre-

sented on this record. Petitioner asserts that “juris-

cliction over the nonfederal entities is necessary to af-

ford [petitioner] complete relief, regardless of the

forum in which the action must be brought.’ Pet.

16-17. But the court of appeals here dismissed the

complaint solely because, under the statutory scheme

enacted by Congress, it has no jurisdiction to con-

sider such complaints. Because its holding related

12 Petitioner also suggests (Pet. 12 & n.17) that the im-

portance of interim judicial review of “streamlined” agency

licensing procedures is confirmed by Friends of Sierra R.R.

v. ICC, 881 F.2d 663 (9th Cir. 1989), petition for cert. pend-

ing sub nom. Tuolumne Park & Recreation Dist. v. ICC, No.

89-701. In that case, the ICC refused to reopen agency pro-

ceedings authorizing abandonment of a railroad, in light of

the passage of 16 months between the final agency action and

the request for reopening. The court of appeals, without

reaching the merits of petitioners’ claims, simply held that it

lacked jurisdiction over the tardy challenges. The only issue

considered was the agency’s refusal to reopen its proceeding,

and the decision turned on the fact that no new evidence or

changed circumstances justified the delay in seeking review

of the agency action. Nothing in the decision suggests any

deficiencies in consolidated agency review procedures similar

to the FCC’s “one-step” procedure.

15

only to the propriety of petitioner’s selection of a

forum, the court’s perfunctory comment (Pet. App.

da n.7)—that even if it had jurisdiction over the

agency, the suit against the private respondents

would have to be dismissed—is obiter dicta. Such

dicta do not present a proper issue for review by this

Court.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

DAVID C. SHILTON

M. ALICE THURSTON

Attorneys

FEBRUARY 1990

APPENDIX

CIVIL DISTRICT COURT FOR THE PARISH

OF ORLEANS

STATE OF LOUISIANA

NO. 88-13047 DIVISION “K”

BYWATER NEIGHBORHOOD ASSOCIATION, ET AL

versus

THE BOARD GF ZONING ADJUSTMENTS, ET AL

JUDGMENT

This matter came for trial on the petitioner’s ap-

plication for certiorari and review:

After considering the pleadings, the decision of the

Board of Zoning Adjustments, the argument of

Counsel and the law and for the written reasons

assigned this day:

IT IS ORDERED, ADJUDGED AND DECREED

that the decision of the Board of Zoning Adjustments

in the matter of Docket +93-88, the application of

NOTEL, Ine. and in the matter of Docket +94-88,

the application of Crescent City Communications Ince.

be, and the same are hereby reversed and set aside

and granting of variance to NOTEL, Inc. and Cres-

cent City Communications, Inc. by the Board of Zon-

ing Adjustments are both hereby reversed.

JUDGMENT READ, RENDERED AND

SIGNED this 22nd day of February, 1989 at New

Orleans, Louisiana.

/s/ Richard J. Ganucheau

RICHARD J. GANUCHEAU

Judge

(la)

2a

CIVIL DISTRICT COURT FOR THE PARISH

OF ORLEANS

STATE OF LOUISIANA

NO. 88-13047 DIVISION ‘“K”

BYWATER NEIGHBORHOOD ASSOCIATION, ET AL

versus

TiiE BOARD OF ZONING ADJUSTMENTS, ET AL

REASONS FOR JUDGMENT

The Bywater Neighborhood Association, Malcolm

Heard, Jr. and Mare Cooper petition this Court to

review the decision of the Board of Zoning Adjust-

ments (hereinafter BZA) of the City of New Orleans

upon the applications of Crescent City Communica-

tions Inc. (hereinafter Crescent City) and NOTEL

Inc.

Crescent City filed an application for variance

dated April 20, 1988 to be allowed to construct a 200

foot microwave link tower on its property described

as 3327 Chartes Street between Desire and Piety

Streets.

NOTEL, Ine. filed an application for variance

dated April 18, 1988 from the 50 foot distance set

back from all property lines for construction of

transmitting antennas.

The Court feels that the information furnished the

BZA by the applicants Crescent City and NOTEL,

Inc. was incomplete and erroneous in the particulars

set out herein below and that “. . . due notice to the

interested parties . . .” as required by the zoning

laws was not properly given.

3a

As to the application for variance filed by Crescent

City the Court finds that:

The Board of Zoning Adjustments was erroneously

informed that Cresent City complied with all Fed-

eral Communications Commissions regulations con-

cerning the proposed construction of the 200 foot

tower;

The Board of Zoning Adjustments was not in-

formed that the site of the tower was located in a

National Historic District:

The Board of Zoning Adjustments was informed

by the President of Crecent City that the proposed

site was located in a light industrial zone, not near

the residential districts;

The Board of Zoning Adjustments granted a vari-

ance, aS was applied for by Crescent City, however

the Zoning Ordinance does not authorize that grant.

As to the application by NOTEL, Ince. for a vari-

ance the Court finds that;

The survey of the property furnished with the an-

plication was of a parcel of property not owned by

the applicant;

The notice requirement to interested parties was

not met;

The Board of Zoning Adjustments was assured

that all Federal Communications Commission re-

quirements had been met; which was not correct;

The Board of Zoning Adjustments was told that no

historic sites were involved in either application.

This Court is not empowered to substitute its judg-

ment for that of the Board of Zoning Adjustments.

The Court must uphold decisions of the Board unless

it is shown that the decision is not supported by sub-

stantial and competent evidence or that the decision

was arbitrary or unreasonable. Gertler Vs. City of

4a

New Orleans 346 So2nd 288 (La. App. 4th Cir.

1977)

It appears from the record of the hearing before _

the Board of Zoning Adjustments that representa-

tions made by the applicants are not verified by the

Board and that the accuracy of the information fur-

nished was not checked. That may be due in part to

the failure of any opponents to appear at the hearing

or a lack of resources available to the Board.

The Board of Zoning Adjustments must find that

all of the nine Standards for Variation set out in the

Zoning Ordinance at Article 15, Section 2.3(1) have

been met as a condition to granting a variance.

Given the errors and deficiencies in the applica-

tions filed by Crescent City and NOTEL the Board

of Zoning Adjustments was unable, in the Court’s

opinion, to make the findings required by the Zoning

Ordinance.

The plaintiffs seek review of the decision of the

Board ef Zoning Adjustments pursuant to La. RS.

33:4727 and a similar provision of the Zoning Ordi-

nance. The Court’s authority in the premises is set

out in L.A. R. S. 33:4227 E(5). Although this case

seems appropriate for remand to the BZA to recon-

sider the application under review, no authority

exists, in the Court’s view for such an order. This

Court may only reverse, confirm or modify the deci-

sion brought for review.

For the above reasons, the decision of the Board of

Zoning Adjustments in these matters: Docket =94-

88, the application of Crescent City Communications,

Ine. and —93-88, the application of NOTEL, Inc., are

both hereby reversed and set aside.

hesseeeeeenaneeneeeeaneinmmallil

5a

New Orleans, Louisiana this 22nd day of Febru-

ary, 1989.

/s/ Richard J. Ganucheau

RICHARD J. GANUCHEAU

Judge

Tl oU. 8. GOVERNMENT PRINTING orrice; 1990 262203 747