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Weigel Broadcasting Co v. Federal Communications Commission

February 17, 2012

WEIGEL BROADCASTING CO., PLAINTIFF,
v.
FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Plaintiff has sued defendant pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel production of documents relating to plaintiff's applications to transfer its licenses to three televisions stations. The case is before the Court on the parties' cross-motions for summary judgment. For the reasons set forth below, the Court grants in part and denies in part the FCC's motion and denies plaintiff's motion.

Facts

On July 31, 2008, plaintiff agreed to sell three low-power television stations in South Bend Indiana to WSBT, Inc. (Compl. ¶ 7.) On August 18, 2008, plaintiff filed applications with the FCC to assign the licenses to these stations to WSBT. (Pl.'s LR 56.1(b)(3)(B) Stmt. ¶ 2.) On September 25, 2008, the FCC granted plaintiff's application with respect to one of the stations but did not rule on the two other applications. (Id. ¶ 4.) On May 20, 2009, plaintiff asked the FCC to expedite its consideration of the other applications. (Id. ¶ 5.) On September 3, 2009, WSBT told the FCC that its agreement with plaintiff had terminated and asked that the applications be dismissed. (Id. ¶ 6.)

On September 15, 2009, the FCC dismissed the two remaining applications. (Id. ¶ 8.)

On May 7, 2010, plaintiff made a FOIA request for the following records relating to its applications:

1. The review, study, analysis, consideration, investigation, and evaluation of the applications by the Commission.

2. The date on which the Commission performed any activities in connection with its review, study, analysis, consideration, investigation, and evaluation of the applications.

3. The intention or plan of, or any understanding, proposal, or recommendation by, the Commission or any constituent Bureau, office or employee of the Commission, to grant, deny, not act or delay ruling on the applications on or before the July 31, 2009 deadline contained in Weigel Broadcasting's contract for the sale of the stations, including, without limitation, any draft decision or ruling regarding the applications.

4. The review, study, analysis, consideration, investigation, and evaluation by the Commission of Weigel Broadcasting's motion for expedited procession which it filed with the Commission on May 20, 2009.

5. The date on which the Commission performed any activities in connection with its review, study, analysis, consideration, investigation, and evaluation of Weigel Broadcasting's motion for expedited processing which it filed with the Commission on May 20, 2009.

6. The intention or plan of the Commission, or any understanding, proposal or recommendation by the Commission, or any constituent Bureau, office or employee of the Commission, to grant, deny, not act or delay ruling on Weigel Broadcasting's motion for expedited processing which it filed with the Commission on May 20, 2008, including, without limitation, any draft decision or ruling regarding the motion.

7. The review, study, analysis, consideration, investigation, and evaluation by the Commission of Weigel Broadcasting's requests to rule on its applications on or before the July 31, 2009 deadline that was contained in Weigel Broadcasting's contract for the sale of the stations, which it made on numerous occasions during May through July, 2009.

8. The date on which the Commission performed any activities in connection with its review, study, analysis, consideration, investigation, and evaluation of Weigel Broadcasting's requests to rule on its applications on or before the July 31, 2009 deadline that was contained in Weigel Broadcasting's contract for the sale of the stations, which it made on numerous occasions during May through July, 2009.

9. The intention or plan of the Commission, or any understanding, proposal or recommendation by, the Commission or any constituent Bureau, office or employee of the Commission, to grant, deny, not act or delay ruling on Weigel Broadcasting's requests to rule on its applications on or before the July 31, 2009 deadline that was contained in Weigel Broadcasting's contract for the sale of the stations, which it made on numerous occasions during May through July, 2009, including, without limitation, any draft decision or ruling regarding the applications.

10. The Commission's interpretation, application, enforcement and non-enforcement of multiple ownership rules in connection with the ownership of low power television stations.

11. The Commission's interpretation and implementation of its duty to act in the public interest in connection with the ownership of low power television stations.

12. The Commission's granting, rejection or failure to timely act on any applications for the issuance or transfer of licenses of low power television stations. (Id. ¶ 11.)

The FCC said the documents responsive to these requests were exempt from production under FOIA. (Id. ΒΆΒΆ 14-26.) Plaintiff alleges that the FCC has wrongfully withheld these documents ...


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