BYWATER NEIGHBORHOOD ASSOCIATION, PETITIONER V. FEDERAL
COMMUNICATIONS COMMISSION, ET AL.

   No. 89-898

   In The Supreme Court Of The United States

   October Term, 1989

   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

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement:
      1. Statutory and regulatory background
      2. History of the case
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-9a) is reported
at 879 F.2d 165.  The opinion of the district court (Pet. App.
10a-11a) 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).

                          QUESTION PRESENTED

   Whether the district court lacked jurisidiction to review
environmentally based challenges to an ongoing Federal Communications
Commission broadcast licensing proceeding.

                               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 stations, known as
"studio-transmitter links" (STLs), /1/ 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 facilities (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 application for permission both to construct
and to operate the facility.  See UA-Columbia Cablevision, Inc., 55
F.C.C.2d 656, 660 (1975).

   STLs are in a third category of facilities, in which the FCC
licenses only the operation, not the construction, 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 Cable 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 to 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.  /2/ Nevertheless, the FCC
will not authorize the operation of facilities unless it has
reasonable 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
restrictions.  See, e.g., Northbanke Corp., 46 Rad. Reg. 2d (P & F)
453, 457 (FCC 1979).

   b. When the FCC receives an application to operate 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 an
informal objection at any time before the FCC acts on the application
(47 C.F.R. 1.41, 73.3587).  /3/ If the FCC receives an informal
objection it will consider the allegations therein, together with the
response of the applicant, before deciding whether to grant the
application.  The FCC may grant an application 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 seq.  Under
Section 106 of the NHPA, 16 U.S.C. 470f, a federal agency head with
jurisdiction over a federally licensed undertaking 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 Advisory 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 seq.  By FCC regulation,
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 to enable the
FCC to carry out its duties under the NHPA (47 C.F.R. 1.1308(a)).  /4/
If the applicant notes the possibility of significant historic
preservation concerns, the FCC then consults with the Advisory Council
before determining whether the facility 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
procedure, the license application must contain the necessary
information, and any special processing required 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 District 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 application" 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 Crescent City Communication Company, Inc.,
which currently holds a television station construction and operating
permit for WCCL-TV, Channel 49 in New Orleans.  /5/ On July 11, 1988,
respondent Crescent City applied, pursuant to 47 U.S.C. 308-309 (1982
& Supp. V 1987), for a permit to operate an appurtenant STL.  The
application did not disclose that the supporting tower respondent
Crescent City proposed 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 complaint in district
court seeking to enjoin further construction 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 submitted an environmental assessment
as an amendment to its FCC license application.  See 47 C.F.R.
1.1307(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 Crescent
City's STL license application, in order to ensure compliance with the
FCC's NHPA regulations, 47 C.F.R. 1.1308.  Pet. App. 29a-30a.  /6/
Thus, although petitioner asserts (Pet. 9) that the STL supporting
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 Environmental Policy Act of 1969, 42
U.S.C. 4321 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 construction.  Petitioner
asserted that "the FCC has authorized the construction and
installation of * * * (the) STL tower.  The FCC contemplates no
further action or scrutiny of this project prior to the construction
of the tower." Complaint 11.  As relief, petitioner requested (1) a
declaratory judgment that the FCC violated the NHPA and NEPA;  (2) a
temporary restraining order and preliminary injunction enjoining
construction and operation of the support tower;  and (3) award of
attorney's fees and costs.  /7/

   The district court dismissed the complaint on the ground that the
United States Court of Appeals for the District of Columbia Circuit
has exclusive jurisdiction over this matter (Pet. App. 10a-11a), and
the court of appeals affirmed (id. at 1a-9a).  The court of appeals
agreed that jurisdiction over challenges to FCC licensing actions lies
exclusively with the District of Columbia Circuit (id. at 4a-8a);  it
also rejected petitioner's claim of jurisdiction under the Mandamus
Act, 28 U.S.C. 1361, as well as the Declaratory Judgment Act, 28
U.S.C. 2201 et seq., adhering to "the general principle that
Congress's exclusive and specific review procedure should be followed"
(Pet. App. 7a).  The court observed that once a final order issues
with regard to the STL application, 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 concerning where the tower will be placed.  And
the decision whether the facility is to be placed on a building, an
existing tower, or a tower constructed expressly 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 building, 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 apparent
contrary assumption, the Commission's actions in this case
convincingly demonstrate that the Commission will require compliance
with the applicable NHPA procedures before issuing any license for the
operation of the STL on the challenged tower.  /8/

   2. In any event, the court of appeals correctly concluded 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 District of Columbia Circuit by 47
U.S.C. 402(b), which provides that:

         Appeals may be taken from decisions and orders of the
      Commission to the United States Court of Appeals for the
      District of Columbia in any of the following cases:

                      * * * *

         (6) By any * * * person who is aggrieved or whose interests
      are adversely affected by any order of the Commission granting
      or denying any application * * * .

   Although this provision refers in terms to "decisions 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
cases "involving the exercise of the Commission's radio-licensing
power" -- including a refusal to exercise that power -- in the United
States Court of Appeals 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 review 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 Shipbuilding 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 & Light Co. v. Lorion, 470 U.S. 729,
741 (1985);  Telecommunications Research & Action Center v. FCC, 750
F.2d 70, 77 (D.C. Cir. 1984) (TRAC) ("even where Congress has not
expressly stated that statutory jurisdiction is 'exclusive,' as it has
here with regard to final FCC actions, 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 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 under the
Administrative Procedure Act, 5 U.S.C. 703, which provides for
district court review when statutory review is inadequate:  "(w)here
statutory review is available in the Court of Appeals it will rarely
be inadequate." 750 F.2d at 78.  /9/ The court below therefore
correctly gave effect to "Congress's specific and obvious intent to
restrict to the circuit courts any appeals from rulings of the FCC"
(Pet. App. 6a).  It accordingly determined that, upon issuance of a
final licensing order, "(petitioner's) complaint 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 environmental 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 v. 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/

   The case cited by petitioner (Pet. 11, 14) in support of its claim
that the circuit courts allow interim review of agency actions pending
final determinations stands alone, and in any event does not present a
square conflict with the decision below.  In Susquehanna Valley
Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir.
1980), cert. denied, 449 U.S. 1096 (1981), the court held that a
private party seeking to compel agency compliance with NEPA need not
exhaust administrative remedies before filing suit in federal district
court to challenge the Nuclear Regulatory Commission's informal
authorization of the discharge of contaminated water.  /11/ 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.  Moreover, the holding in Susquehanna has subsequently 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 judicial
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.  /12/

   2. Petitioner's second question is not properly presented on this
record.  Petitioner asserts that "jurisdiction over the nonfederal
entities is necessary to afford (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 consider such complaints.  Because its holding related
only to the propriety of petitioner's selection of a forum, the
court's perfunctory comment (Pet. App. 3a 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

   /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 transmitter of a TV
      broadcast or low power TV station or other purposes as
      authorized in Section 74.631.

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

         A television broadcast STL station is authorized to transmit
      visual program material between the studio and the transmitter
      of a television broadcast station for simultaneous or delayed
      broadcast.

   /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.

   /3/ Section 309(c)(2)(E) and (d)(1) of the Communications Act, 47
U.S.C. 309(c)(2)(E) and (d)(1), preclude filing of a formal petition
to deny an STL application.  Compare 47 U.S.C. 309(b) and (d)(1).

   /4/ 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)).

   /5/ Crescent City currently operates the station under "program
test authority" pursuant to 47 C.F.R. 73.1620.  The station's
application for its full operating license is pending at the FCC.

   /6/ Processing was further delayed following a February 22, 1989,
state court order revoking the local Board of Zoning 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, 1a-5a).  The FCC informs us that
respondent Crescent City is currently utilizing, pursuant to temporary
FCC authorization, an STL mounted on a building.  Although respondent
Crescent City has indicated its continued interest in obtaining an
operating permit for the STL at issue in the instant proceeding, no
further action is contemplated on its application for that permit
until the zoning question is resolved.

   /7/ The complaint also sought a permanent injunction requiring
removal of an appurtenant facility constructed by respondent Notel, a
company associated with respondent Crescent City.  That request for
relief was based on the complaint'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 administrative remedies before seeking judicial review of those
applications.  See Pet. 9 n.10.

   /8/ Petitioner has not contended that those procedures are
inadequate.

   /9/ Petitioner asserts (Pet. 5) that 16 U.S.C. 470w-4, the NHPA
provision governing the award of attorney fees, provides 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 "(i)n 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 attorney 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 attorney fee
provision of the NHPA are dicta.

   /10/ For example, in City of Rochester v. Bond, supra, the
appellants attempted to invoke district court jurisdiction to
challenge an FAA order (a "no hazard determination" regarding a radio
antenna tower) and the resulting FCC construction 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 lawfulness 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.  Id. at 938-939.

   /11/ In dissenting from the denial of certiorari in Susquehanna,
Justice Rehnquist (joined by the Chief Justice and Justice Powell)
noted (449 U.S. at 1096, 1100) that the holding 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 inefficient,
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 Rehnquist
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.

   /12/ Petitioner also suggests (Pet. 12 & n.17) that the importance
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. pending sub nom. Tuolumne Park &
Recreation Dist. v. ICC, No. 89-701.  In that case, the ICC refused to
reopen agency proceedings 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.

   APPENDIX