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Nueva Esperanza, Inc. v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

July 21, 2017

Nueva Esperanza, Inc., Appellant
Federal Communications Commission, Appellee G-TOWN RADIO, ET AL., INTERVENORS

          Argued February 3, 2017

         On Appeal of an Order of the Federal Communications Commission

          Devi M. Rao argued the cause for appellant. With her on the briefs were John L. Flynn and Matthew S. Hellman

          Scott M. Noveck, Counsel, Federal Communications Commission, argued the cause for appellee. With him on the brief were Jonathan B. Sallet, General Counsel, and Jacob M. Lewis, Associate General Counsel.

          Richard K. Welch, Deputy Associate General Counsel, entered an appearance.

          Andrew Jay Schwartzman and Drew T. Simshaw were on the brief for intervenors G-Town Radio, et al. in support of appellee.

          Before: Rogers and Srinivasan, Circuit Judges, and Ginsburg, Senior Circuit Judge.


          Ginsburg, Senior Circuit Judge.

         Appellant Nueva Esperanza, Inc., a nonprofit corporation based in Philadelphia, Pennsylvania, applied to the Federal Communications Commission in 2013 for a license to construct and operate a Low Power FM Radio (LPFM) station in Philadelphia. The Media Bureau of the Commission dismissed the Appellant's application. The Commission affirmed, LPFM MX Group 304, NAACP Social Justice Law Project, et al., Application for a Construction Permit for a New LPFM Station at Philadelphia, Pennsylvania, 30 FCC Rcd. 13983 (2015) (the Order), and the Appellant now asks this court to vacate that decision. We affirm the decision of the Commission.

         I. Background

         In 2000, the Commission introduced the LPFM service "to create opportunities for new voices on the air waves and to allow local groups, including schools, churches and other community-based organizations, to provide programming responsive to local community needs and interests." Creation of Low Power Radio Service, 15 FCC Rcd. 2205, 2213 (2000). To that end, it limited "eligibility for LPFM licenses … to noncommercial, educational entities and public safety entities." Id. at 2209. Although the Commission is required to resolve "mutually exclusive" applications by commercial applicants through a competitive bidding process, id. at 2213 (citing 47 U.S.C. § 309(j)), the Commission resolves mutually exclusive LPFM applications through a point system, in keeping with the noncommercial nature of the new service, id. at 2258.

         Under that system, the Commission gives an applicant one point for each of six characteristics, such as having an "established community presence of at least two years." Commission Identifies Tentative Selectees in 111 Groups of Mutually Exclusive Applications Filed in the LPFM Window, 29 FCC Rcd. 10847, 10848 (2014).

         Several community organizations, including the Appellant, applied during the October 2013 filing period to construct an LPFM station in Philadelphia, PA. After the Commission identified eleven applications, including that of the Appellant, as mutually exclusive, Media Bureau Identifies Mutually Exclusive Applications, 28 FCC Rcd. 16713, 16715 (2013), it awarded five points to each of seven of the applicants, thus creating a seven-way tie, 29 FCC Rcd. at 10857-65 (announcing the "tentative selectees, i.e., the single applicant with the highest point total or the applicants tied for the highest point total from each [mutually exclusive] group, " id. at 10847). Under the Commission's procedures, 47 C.F.R. § 73.872(c), in order to break a tie "two or more of the tied applicants in each [mutually exclusive g]roup may propose to share use of the frequency by filing … a time-share proposal." 29 FCC at 10852. The Commission then "aggregate[s] the point totals of applicants that submit acceptable time-share proposals." Id.

         Four of the tied applicants, not including the Appellant, filed a timeshare agreement and received 20 points. This group comprised G-Town Radio, Germantown United Community Development Corp., Germantown Life Enrichment Center, and South Philadelphia Rainbow Committee Community Center, Inc. (collectively, the Timeshare Applicants). The Appellant, together with another applicant, the Social Justice Law Project of the Philadelphia NAACP, Inc., which had received five points, also filed a timeshare application, thereby receiving ten points. Because their point total was higher, the Timeshare Applicants were awarded the license.

         Two months before the Timeshare Applicants filed their agreement, the Appellant and the NAACP Project had petitioned the Commission to deny several applications, including those of three of the Timeshare Applicants, viz., G-Town Radio, Germantown United Community Development Corporation, Germantown Life Enrichment Center, and Historic Germantown Preserved. In its petition to deny, the Appellant argued those four applicants had violated the Commission's rule prohibiting multiple applications, by or on behalf of the same applicant, 47 C.F.R. ยง 73.3520, alleging that the parties were all acting on behalf of G-Town Radio. The three Germantown ...

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