United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2001 Decided June 1, 2001

No. 00-1253

Coalition for Noncommercial Media,

Petitioner

v\.

Federal Communications Commission and

United States of America,

Respondents

Western New York Public Broadcasting Association,

Intervenor

On Petition for Review of an Order of the

Federal Communications Commission

Jared S. Sher argued the cause for petitioner. On the briefs were David
E. Honig, John C. Quale and Mark C. Del Bianco.

James M. Carr, Counsel, Federal Communications Commission, argued the
cause for respondents. With him on the brief were Christopher J. Wright,
General Counsel, Daniel M. Armstrong, Associate General Counsel, A.
Douglas Melamed, Acting Assistant Attorney General, U.S. Department of
Justice, Robert B. Nicholson and Adam D. Hirsh, Attorneys. Catherine G.
O\'Sullivan, Attorney, entered an appearance.

Robert A. Woods and Malcolm G. Stevenson were on the brief for
intervenor Western New York Public Broadcasting Association. Lawrence M.
Miller entered an appearance.

Before: Edwards, Chief Judge, Williams and Henderson, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The Coalition for Noncommercial Media, a
nonprofit organization, challenges a Federal Communications Commission
order swapping the status of two television channels licensed to the
Western New York Public Broadcasting Association (\"the Association\").
As a result of the swap, Channel 17, previously unreserved, became
reserved for non-commercial use and Channel 23, previously reserved,
ceased to be. (The Commission allots a digital channel to accompany each
analog channel,[^1] and its order effected similar switches for the
Association\'s digital channels.) Pinning standing to the status of its
members as viewers of these channels, the Coalition raises a host of
claims. We find the appeal timely: The Coalition\'s appeal properly
falls under 47 U.S.C. § 402(a) and its 60-day limit (see 28 U.S.C. §
2344), rather than under § 402(b) and its 30-day limit (see § 402(c)),
as the Commission urges. But because the issues that the Coalition
preserved for review lack merit, we affirm.

\* \* \*

The Commission began assigning television channels to geographic regions
almost fifty years ago. To encourage the development of educational
programming, the Commission reserved some channels for noncommercial
use, identifying such channels with an asterisk in what is now called
the Table of Allotments. See In re Amendment of Section 3.606 of the
Commission\'s Rules and Regulations, 41 F.C.C. Reports 148, 158-64, 228
& n.60 p p 33-49, 253(a) (1952); see also 47 CFR § 73.606.

To modify a channel assignment, a broadcast licensee must apply to the
Commission, normally thereby exposing itself to competing license
applications. In the case of some relatively simple exchanges, however,
the Commission has taken the view that the application of this general
precept might unjustifiably discourage beneficial exchanges. To address
this concern, it adopted in 1986 a rule expressly permitting a
commercial and a noncommercial broadcaster to petition to exchange
channels without facing competing applications for the licenses. See In
re Amendments to the Television Table of Assignments to Change
Noncommercial Educational Reservations, 59 Rad. Reg. 2d (P & F) 1455
(1986); see also 47 CFR § 1.420(h).

The Association operates two noncommercial television stations in
Buffalo, New York\--WNEQ-TV on Channel 23, which was reserved for
noncommercial educational use, and WNED-TV on Channel 17, which was
unreserved. In May 1998, the Association petitioned for a rulemaking to
amend the Table of Allotments to switch the two channels\' status. See
Petition for Rule Making, Joint Appendix (\"J.A.\") at 1. The
Association stated that it would provide \"a significantly enhanced
programming operation at Station WNED-TV\", which it claimed was \"the
more powerful of the two stations\", and would \"derive substantial new
and necessary financial support for an endowment fund for its Station
WNED-TV operations through assignment of its facility on unreserved
Channel 23 to a commercial entrepreneur.\" Id. at 3-4. The Commission\'s
Mass Media Bureau issued a Notice of Proposed Rule Making on the
Association\'s proposal and received comments from the Coalition, among
others. Finding that the proposed change in reservation status would
improve noncommercial service in Buffalo and would not eliminate any
noncommercial channel reservations, the Bureau granted the petition and
modified the television licenses under § 316(a) of the 1934
Communications Act to reflect the change in July 1999. See In re
Amendment of Section 73.606(b), Table of Allotments, Television
Broadcast Stations and Section 73.622(b), Table of Allotments, Digital
Television Broadcast Stations (Buffalo, New York), 14 F.C.C.R. 11,856,
11,859, 11,861-62, 11,863 p p 9, 15, 19 (Mass Media Bur. 1999) (\"Bureau
Order\"). The Commission denied the Coalition\'s application for review.
See In re Amendment of Section 73.606(b), Table of Allotments,
Television Broadcast Stations and Section 73.622(b), Table of
Allotments, Digital Television Broadcast Stations (Buffalo, New York),
FCC 00-130 (Memorandum Opinion and Order April 19, 2000), J.A. at 188
(\"Order\"). The Coalition now seeks judicial review.

\* \* \*

The Commission published its order on May 4, 2000. See 65 Fed. Reg.
25,865 (2000). The Coalition filed its petition for review on June 15,
2000. Thus the Coalition\'s petition was timely if it belongs under §
402(a)\'s 60-day deadline but not if it belongs under § 402(b)\'s 30-day
limit. The Coalition\'s opening brief oddly asserted that our
jurisdiction depended on § 402(b)(6), a point on which the Commission
pounced. But we decide for ourselves how the petition should be
characterized. See Freeman Engineering Associates, Inc. v. FCC, 103 F.3d
169, 177 (D.C. Cir. 1997).

For § 402(b)(6) to apply, the Coalition must show that it \"is aggrieved
or \[its\] interests are adversely affected by any order of the
Commission granting or denying any application described in paragraphs
(1) to (4) and (9) of this subsection.\" 47 U.S.C. § 402(b)(6) (emphasis
added); see also Waterway Communications Systems, Inc. v. FCC, 851 F.2d
401, 403 (D.C. Cir. 1988). The Commission\'s order, however, neither
grants nor denies any application because the Association did not submit
one; the Association petitioned for a rulemaking to modify the relevant
tables reflecting channel assignments. It did not seek a modification of
its licenses.

The matter is complicated by the fact that, even without a request, the
Commission did modify the licenses. Had the Association sought the
modification, the case would presumably fall under § 402(b)(6), because
that subsection cross-references § 402(b)(2), involving applications to
modify an \"authorization\" specified in subsection (1), which includes
\"station license\[s\].\" This would be true even if the Association did
not identify its request as an \"application.\" In fact it made no such
request in any form.

But we are still not out of the woods. In Tomah-Mauston Broadcasting Co.
v. FCC, 306 F.2d 811 (D.C. Cir. 1962), we held that a Commission order
denying a petition to stay and revoke a party\'s construction permit to
build a radio broadcast station before it went on the air was reviewable
under 47 U.S.C. § 402(b)(6) as an order \"ancillary\" to the grant of
the construction permit. Id. at 812. In effect the petitioner was
directly seeking to reverse the grant. See also id. (observing that
Commission order was \"in substance a re-affirmation of its earlier
grant\"). But we have never extended Tomah-Mauston. In Freeman
Engineering Associates, Inc. v. FCC, 103 F.3d 169 (D.C. Cir. 1997),
because grant of a \"pioneer\'s preference\" came close to assuring the
grantee a license, the Commission claimed that appeal from such a grant
belonged under § 402(b). Distinguishing Tomah-Mauston, we held \"that
the Commission\'s denial of a pioneer\'s preference is neither a denial
of a license nor is it ancillary to such,\" stressing that to actually
receive the grant the pioneer must also be \"otherwise qualified.\" Id.
at 177-78. Thus even an application that strongly foreshadows the grant
of a § 402(b) application is not enough. But see WHDH, Inc. v. United
States, 457 F.2d 559, 561 (1st Cir. 1972) (finding § 402(b) applicable
under Tomah-Mauston to appeal attacking grant of \"program test
authority,\" which \"is a step short of the granting of a station
license\"). That the Commission leapt forward and on its own hook
eliminated the need for such an application does not create an
application where none was made. We thus find the Coalition\'s appeal
proper under § 402(a) and timely under the 60-day limit.

\* \* \*

The Coalition makes several arguments before us that it did not raise
with the Commission. See 47 U.S.C. § 405. Section 405(a) generally
dispenses with any need for a petition for reconsideration with the
Commission, but not where the party seeking review raises a claim \"upon
which the Commission \... has been afforded no opportunity to pass.\"
Although this exhaustion provision does not require that the
\"opportunity be afforded in any particular manner, or by any particular
party,\" Office of Communication of the United Church of Christ v. FCC,
465 F.2d 519, 523 (D.C. Cir. 1972), the argument does have to have been
meaningfully raised by someone. See Washington Ass\'n for Television &
Children v. FCC, 712 F.2d 677, 681 (D.C. Cir. 1983); Alianza Federal de
Mercedes v. FCC, 539 F.2d 732, 739 (D.C. Cir. 1976).

We find that three of the Coalition\'s claims have been waived under 47
U.S.C. § 405. First, the Coalition argues that when the Commission
swapped the channel reservations in the relevant Tables of Allotments
and modified the Association\'s licenses in the same proceeding, it
deviated without explanation from past practice. See Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 852-53 (D.C. Cir. 1970). In the
Coalition\'s view this past practice required applicants to file first
for an amendment to the Tables of Allotments and then separately to
modify their licenses to reflect the change. To support its claim that
it made this argument the Coalition cites a number of pages in its
application for Commission review, see Reply Br. at 11 n.20, but nothing
cited reasonably raises or even suggests this issue. See Time Warner
Entertainment Co. v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1998) (\"\[W\]e ask
whether a reasonable Commission necessarily would have seen the question
raised before us as part of the case presented to it.\").

Grant Television, Inc., a licensee of station WNYO-TV in Buffalo, New
York, did raise this issue\--but only before the Mass Media Bureau. See
J.A. at 35-38. Grant Television was not a party to the Commission\'s
review. As § 405 requires that the Commission itself\--and not merely a
Commission bureau\--have had an opportunity to pass on the issue, see
Bartholdi Cable Co. v. FCC, 114 F.3d 274, 279 (1997), Grant\'s comments
are not enough.

To be sure a few sentences of the Commission order made reference, in
its background section, to the Mass Media Bureau\'s disposition of the
issue that the Coalition is now raising. Order at p 5, J.A. at 189. But
the \"mere fact that the Commission discusses an issue does not mean
that it was provided a meaningful \'opportunity to pass\' on the
issue.\" Bartholdi, 114 F.3d at 280; see also Time Warner, 144 F.3d at
79-80. Only a discussion offered in response to someone\'s
argument\--such as petitioner\'s, another party\'s, or a
Commissioner\'s\--qualifies. See Bartholdi, 114 F.3d at 280. Our
reference in Petroleum Communications, Inc. v. FCC, 22 F.3d 1164 (D.C.
Cir. 1994), to instances where the Commission \"considered the issue
\... on its own motion,\" id. at 1170, appears to be confined to cases
where a dissenting commissioner posed the challenge.

The obstacles for the two remaining barred claims are more
straightforward. The Coalition itself concedes, Reply Br. at 21 n.42,
that it never raised its claim that the Commission\'s failure to alert
interested parties that it might modify the Association\'s licenses when
it changed the relevant Tables of Allotments was a violation of the
Administrative Procedure Act\'s notice requirements. See 5 U.S.C. §
553(b). And the Coalition identifies no place where it objected that the
Association\'s proposal reduced the number of reserved digital channels
in Buffalo, New York because the original table placed asterisks next to
both Channel 32 and Channel 43 (a superficially valid proposition that
the Association, rightly or wrongly, explained as having resulted from a
pre-existing typographical error in the original digital Table of
Allotments, see Petition for Rule Making, J.A. at 2 n.1). No party made
this argument below and the Coalition cannot raise it now.

None of the exceptions to § 405\'s exhaustion requirement is available
for these three claims. See Washington Ass\'n for Television & Children,
712 F.2d at 681-83. The Commission is not obliged to guess what
arguments might be before it; thus we move on without reaching the
merits of these claims.

\* \* \*

Surviving are the Coalition\'s objections to the Commission\'s rejection
of two counterproposals that the Coalition had made to the Notice of
Proposed Rule Making on the Association\'s channel-swapping proposal.
The first asked the Commission to reserve both of the Association\'s
channels for noncommercial use. The second asked the Commission to
reserve all unreserved stations in the nation that were being used for
noncommercial use. See J.A. at 59.

The Commission acknowledged that the Mass Media Bureau did not
specifically address the first proposal but said that any error was
harmless for several reasons. See Order at p 11, J.A. at 191. On appeal,
the Coalition\'s opening brief challenges only the Commission\'s point
that \"a third party may not petition for a change in another station\'s
authorization, particularly if the licensee has disavowed an interest in
the particular proposed change.\" Id. But the Coalition cites no case or
Commission rule that would suggest otherwise\--except in cases, see
Reply Brief at 16-17 n.31, where a licensee or potential licensee of a
nearby channel claimed that an existing license would, in the absence of
modification, create interference, and thus mutual exclusivity within
the meaning of Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945). Yet
the Coalition did not contest the Commission\'s reading of Ashbacker as
inapplicable to its proposal until its Reply Brief, and that, as we have
said many times, is too late for a new argument. See United States v.
Wilson, 240 F.3d 39, 45 (D.C. Cir. 2001).

The Bureau dismissed the second proposal\--to impose reserved status on
all stations that are in noncommercial use\--stating that it \"is not
mutually exclusive with the Buffalo proposal and is therefore not
appropriately filed in this proceeding.\" Bureau Order, 14 F.C.C.R. at
11,856 n.2. The Commission observed that the issue should be \"raised as
a general rulemaking, not as an issue to be resolved in an adjudicatory
proceeding such as this.\" Order at p 12, J.A. at 191.

The Commission\'s dismissal of these two counterproposals was reasonable
and adequately explained. See Motor Vehicle Manufacturers Ass\'n of the
United States v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43
(1983). There is no sense at all in the claim that the Commission\'s
action here is inconsistent with its decision in In re Deletion of
Noncommercial Reservation of Channel \*16, 482-488 MHz, Pittsburgh,
Pennsylvania, 11 F.C.C.R. 11,700 (1996). The proposal there involved a
deletion of one of two reserved channels, effecting a net reduction;
here there was no such reduction.

The Coalition\'s petition is

Denied.

[^1]: See In re Advanced Television Systems and Their Impact upon the
    Existing Television Broadcasting Service, 13 F.C.C.R. 7418, 7517-18
    p p 291-92 (1998), aff\'d, Community Television, Inc. v. FCC, 216
    F.3d 1133 (D.C. Cir. 2000); see also 47 CFR § 73.622(a).