United States Court of Appeals, District of Columbia Circuit
February 3, 2017
Appeal of an Order of the Federal Communications Commission
M. Rao argued the cause for appellant. With her on the briefs
were John L. Flynn and Matthew S. Hellman
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
Richard K. Welch, Deputy Associate General Counsel, entered
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.
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
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.
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).
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.
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.
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. § 73.3520, alleging that the
parties were all acting on behalf of G-Town Radio. The three