Biltmore Forest v. FCC ( 2003 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 3, 2002 Decided March 7, 2003
No. 01–1392
BILTMORE FOREST BROADCASTING FM, INC.,
APPELLANT
v.
Federal Communications Commission,
Appellee
Liberty Productions L.P. and
Orion Communications, Ltd.,
Intervenors
Appeal of an Order of the
Federal Communications Commission
Donald J. Evans argued the cause for appellant. With him
on the briefs was Anne Goodwin Crump.
Stephen C. Leckar argued the cause and filed the briefs for
intervenor Orion Communications, Ltd.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Daniel M. Armstrong, Associate General Counsel, Federal
Communications Commission, argued the cause for appellee.
With him on the brief were Jane E. Mago, General Counsel,
and C. Grey Pash, Jr., Counsel.
Timothy K. Brady was on the brief for intervenor Liberty
Productions L.P.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Biltmore Forest Broadcasting FM,
Inc. appeals an order of the Federal Communications Com-
mission awarding an FM radio station license to intervenor
Liberty Productions L.P., which was the high bidder in the
auction of that license. Biltmore and intervenor Orion Com-
munications, Ltd., each of which also bid, claim that Liberty
should have been disqualified because errors in Liberty’s
license application were not correctable after the auction and
in its application Liberty had misrepresented facts about its
access to a transmitter site. Because neither contention has
merit, we affirm the order of the Commission.
I. Background
In 1987 thirteen radio companies, including Biltmore, Lib-
erty, and Orion, filed applications with the Commission for an
FM station license in Biltmore Forest, North Carolina. At
that time the Commission’s policy was to hold comparative
hearings in order to determine the qualifications of the appli-
cants and to decide which of the qualified applicants would
best serve the public interest. An Administrative Law Judge
held such a hearing and determined that neither Biltmore nor
Liberty had a ‘‘reasonable assurance’’ that a transmitter
tower site was available to it, as the Commission then re-
quired. The ALJ determined also that Liberty had intention-
ally misrepresented facts about the availability of a site.
Nat’l Communications Indus., 5 F.C.C. Rcd. 2862 (ALJ
1990).
3
The following evidence was before the ALJ when he made
his finding concerning Liberty’s misrepresentation. Valerie
Klemmer, the general partner behind Liberty, certified that
Liberty had a reasonable assurance a certain site was avail-
able. Klemmer, a neophyte in the broadcasting arena, testi-
fied before the ALJ that her certification was based upon a
conversation she and a friend named Tim Warner had had on
August 25, 1987 with Vickey Utter, the owner of a parcel of
land near Biltmore Forest. Warner had had prior dealings
with Ms. Utter in his capacity as an executive at WCQS, a
public radio station in Asheville. He also had experience
certifying that an applicant had a reasonable assurance a site
would be available to it. Klemmer believed she had reached
an agreement with Utter on August 25. She made no plans
to secure any other site for the tower in the event the deal
with Utter fell through.
Utter consistently denied having made any deal with Klem-
mer. In other respects, however, Utter’s testimony was most
inconsistent. In a February, 1989 affidavit she said she had
no knowledge of Klemmer or Liberty and had never given
Klemmer or any other representative of Liberty any assur-
ance that her property would be available for a transmitter.
Indeed, she denied having spoken to anyone representing
Liberty. In a signed statement dated March 13, 1989, howev-
er, Utter said that Warner had reminded her that he and
Klemmer had visited her and that they had discussed leasing
a portion of her land, ‘‘but since [Klemmer] never contacted
me again I assumed she found some place more suitable for
her project.’’ Later in March Utter reiterated her position
that she had never given Klemmer any assurance the land
would be available, explaining that ‘‘[i]f we had discussed this
or I had given her this assurance I certainly would have
remembered and I would have been looking for her to make a
commitment of some sort.’’
At a deposition in April, 1989 Utter again recalled speaking
with Klemmer and Warner, but she could not remember the
details of the conversation. She did recall telling Klemmer
and Warner about a lease she and Brian Lee, a representa-
tive of Orion, had executed on August 21, 1987 for the use of
4
a portion of her land as a transmitter site. She had signed
the February affidavit at the request of Lee, she explained.
On March 11, Utter stated, Klemmer and Warner had visited
her at her home and refreshed her memory of their earlier
meeting. They had wanted her to sign a statement that she
would be willing to lease the site to Liberty; Utter had
refused but instead wrote and signed the statement of March
13 in which she acknowledged having discussed the matter
with Klemmer and Warner in August. Utter stated in her
deposition that although at the time she signed the March 13
statement she did not recall ever having discussed leasing her
land to Klemmer, she included the assertion that she had
done so ‘‘because that’s what [Warner] kept telling me the
night he and [Klemmer] were at the house.’’
Klemmer testified to a different version of events. She
said that at the August meeting she and Warner told Utter of
Liberty’s interest in leasing a portion of Utter’s property in
the event Liberty received the license. They discussed a
price of $4,000 per year. There was no mention of Utter
having entered into a prior lease agreement with Lee or
Orion. Klemmer believed her oral agreement with Utter
gave her a reasonable assurance of the site being available for
two reasons: Warner told her both that Utter had honored
previous oral agreements he had made with her on behalf of
WCQS, and that he understood from WCQS’s attorney that
an oral agreement was sufficient for an applicant to certify
having a reasonable assurance. In his testimony Warner
corroborated Klemmer’s account of their meeting with Utter
and the two statements she attributed to him.
Upon this record the ALJ made findings adverse to Liber-
ty. In particular, the ALJ concluded that Klemmer had
‘‘absolutely no basis’’ for representing that she had obtained a
reasonable assurance the Utter site was available to Liberty.
Further,
she knew she had no basis for [doing so]. To argue that
her feeble, half-hearted effort to obtain some of Vicki
Utter’s land TTT constitutes ‘‘reasonable assurance’’
strains credulity. No, Valerie Klemmer has blatantly
5
dissembled in a manner that doesn’t befit a prospective
broadcast permittee.
5 F.C.C. Rcd. at 2879 ¶ 8. The ALJ did not address War-
ner’s testimony at all.
Various parties appealed the ALJ’s decision to the Review
Board, which affirmed that Liberty was disqualified on the
site issue and therefore did not reach the misrepresentation
issue. Nat’l Communications Indus., 6 F.C.C. Rcd. 1978,
¶ ¶ 8-12 (Rev. Bd. 1991). The Board’s decision survived re-
view by the full Commission as well as two petitions for
reconsideration. Nat’l Communications Indus., 7 F.C.C.
Rcd. 1703, ¶ 2 (1992); Liberty Prods., L.P., 7 F.C.C. Rcd.
7581, ¶ 36 (1992); Liberty Prods., L.P., 8 F.C.C. Rcd. 4264,
¶ 4 (1993). When the appeal reached this court, however, we
summarily reversed and remanded the case to the Commis-
sion for reconsideration, Biltmore Forest Broad. FM, Inc. v.
FCC, 1994 WL 116196 (Mar. 15, 1994), in light of our inter-
vening decision in Bechtel v. FCC, 10 F.3d 875 (1993); there
we had held the Commission’s ‘‘integration policy,’’ which
favored an applicant who intended personally to manage and
operate the proposed station over one who intended to en-
trust its operation to employees, was arbitrary and capricious.
As a consequence, the ALJ’s disqualification of Liberty and
Biltmore for want of an available site was never reviewed by
the court, and the ALJ’s disqualification of Liberty for mis-
representation was never reviewed at any level – not by the
Review Board or the Commission or the court.
Before the Commission reconsidered on remand which of
the applicants would best serve the public interest, however,
the Congress authorized the Commission to award licenses
for FM stations upon the basis of competitive bidding, Bal-
anced Budget Act of 1997, Pub. L. No. 105-33, § 3002, 111
Stat. 251, 258-65, and the Commission adopted a method of
doing so using auctions. Implementation of Section 309(j) of
the Communications Act, 13 F.C.C. Rcd. 15920 (1998), on
recon. at 14 F.C.C. Rcd. 8724 (1999), aff’d sub nom. Orion
Communications, Ltd. v. FCC, 213 F.3d 761 (D.C. Cir. 2000).
6
On July 9, 1999 the Commission announced the require-
ments and procedures for bidding in Auction No. 25, which
would include the FM license at Biltmore Forest. Public
Notice, 14 F.C.C. Rcd. 10632. Among other things, the July
9 Notice announced the starting date of the auction (Septem-
ber 28, 1999), id. at 10633, the deadline for the submission of
short form applications (August 20, 1999), id., and the various
showings and certifications required of each applicant. Id. at
10641. Liberty timely filed its short form application but
failed to certify its ‘‘compliance with the Commission’s policies
relating to media interests of immediate family members.’’
Id.
On September 10, 1999 Liberty arranged to borrow a large
sum of money from Cumulus Broadcasting, a nationwide
media company. It reported the loan agreement to the
Commission on September 27. Liberty Prods., L.P., 16
F.C.C. Rcd. 12061 ¶ 23 (2001). The auction began on Septem-
ber 28 and lasted until October 8. Liberty was the high
bidder, followed by Biltmore and Orion. Id. ¶ 5. On Novem-
ber 10 Liberty amended its application to include details of
the Cumulus loan agreement. Id. ¶ ¶ 6, 23. On November 24
it provided the ‘‘family certification’’ to the Commission. Id.
¶ 17.
Because Liberty was the high bidder, the Commission on
November 23 recommenced its proceeding ‘‘to consider the
ALJ’s previously unreviewed findings on the false certifica-
tion issue.’’ Id. ¶ 4. In the order now under review, the
Commission reviewed the question of Liberty’s misrepresen-
tation and addressed Biltmore’s and Orion’s new charges that
Liberty had engaged in irregularities in the auction process.
The Commission held that Liberty’s failure to submit the
family certification with its short form application did not
require dismissal of its application or invalidation of its selec-
tion as the permittee on the basis of the auction, id. ¶ ¶ 14-19,
and that the loan agreement between Liberty and Cumulus
did not improperly bring a new party into the auction. Id.
¶ ¶ 26-28. The Commission also held that Liberty, by enter-
ing into the loan agreement with Cumulus, was no longer
7
eligible for the ‘‘new entrant bidding credit,’’ id. ¶ ¶ 32-37,
pursuant to which a company without major media interests
was not required to pay the full amount of its bid. And the
Commission rejected the suggestion that Liberty’s becoming
ineligible for the bidding credit required it either to dismiss
Liberty’s application or to set aside the results of the auction.
Id. ¶ ¶ 38-39. Finally, the Commission reversed the ALJ’s
finding that Liberty had misrepresented the availability of
the proposed transmitter site in its 1987 application. Id.
¶ ¶ 49-72.
Having found no reason to disqualify Liberty, the high
bidder in the auction, the Commission awarded it the license.
Biltmore appealed, Orion intervened in support of Biltmore,
and Liberty intervened in support of the Commission.
II. Analysis
Biltmore’s and Orion’s objections to the Commission’s
award of the license to Liberty are of two types: claims that
Liberty’s failure to adhere to all the rules of the auction
disqualifies it from holding the license, and claims that Liber-
ty engaged in misrepresentation before the Commission and
is therefore unfit to be a licensee.
A. Auction Violations
Biltmore claims that both Liberty’s failure timely to file the
family certification and its entering into the loan agreement
with Cumulus disqualify it from the auction.*
1. Family certification
Biltmore argues that both the July 9 Notice and the
Commission’s regulations require that Liberty’s application
* Intervenor Orion also argues the Commission arbitrarily and
capriciously refused to determine whether the Cumulus loan
amounted to a change in ownership that would disqualify Liberty
under 47 U.S.C. § 309(l )(2). Because no party raises this argu-
ment, it is not properly before the court, and we shall not consider
it. See Lamprecht v. FCC, 958 F.2d 382, 389 (D.C. Cir. 1992)
(‘‘Except in extraordinary cases TTT intervenors may only join issue
on a matter that has been brought before the court by another
party’’).
8
be dismissed for failure to file the required family certifica-
tion.* The July 9 Notice stated that ‘‘Bidders must certify
TTT compliance with the Commission’s policies relating to
media interests of immediate family members,’’ 14 F.C.C.
Rcd. at 10641, and 47 C.F.R. § 73.5002(b) requires that the
short form application contain ‘‘all required certifications,
information and exhibits, pursuant to the provisions of 47
C.F.R. 1.2105(a) and any Commission public notices.’’
Regarding the effect of an applicant’s failure to submit
required information, 47 C.F.R. § 1.2105(b) provides two
different sanctions. First, § 1.2105(b)(1) states:
Any short-form application TTT that does not contain all
of the certifications required pursuant to this section is
unacceptable for filing and cannot be corrected subse-
quent to the applicable filing deadline. The application
will be dismissed with prejudice and the upfront pay-
ment, if paid, will be returned.
Other omissions are not subject to such Draconian treatment,
however. Section 1.2105(b)(2) provides: ‘‘The Commission
will provide bidders a limited opportunity to cure defects
specified herein (except for failure to sign the application and
to make certifications) and to resubmit a corrected applica-
tion.’’ The Commission’s grace is not unlimited; if the appli-
cants ‘‘fail to correct defects in their applications in a timely
manner as specified by public notice,’’ then they ‘‘will have
their applications dismissed without opportunity for resubmis-
sion.’’ § 1.2105(b)(3). As for the July 9 Notice, it states only
that ‘‘[f]ailure to submit required information by the resub-
mission date will result in dismissal of the application and
* Liberty responds with the claim that it was not subject to this
filing requirement because ‘‘there could be no certification of com-
pliance as to interests which were nonexistent.’’ We shall not
consider this attempt by intervenor Liberty obliquely to appeal the
Commission’s decision that Liberty was required to file the certifi-
cation. To contest this aspect of the Commission’s decision, Liberty
should have filed a conditional cross-appeal. See generally 15A
Charles A. Wright et al., Federal Practice & Procedure § 3902, at
78-79 (1992) (collecting cases).
9
inability to participate in the auction. See 47 C.F.R.
§ 1.2105(b).’’ 14 F.C.C. Rcd. at 10697.
The Commission argues that neither 47 C.F.R. § 1.2105(b)
nor the Notice requires Liberty’s disqualification: The regu-
lation applies by its terms only to ‘‘the certifications required
pursuant to this section.’’ Because the family certification
was required by the July 9 Notice rather than by § 1.2105,
according to the Commission, the disqualification provided in
§ 1.2105(b)(1) does not apply to the omission of that certifica-
tion. Rather, the applicable provisions are the more forgiv-
ing §§ 1.2105(b)(2)-(3), which afford an applicant the opportu-
nity to make corrections before the Commission dismisses its
application with no opportunity for resubmission. The paren-
thetical exception in subsection (b)(2) taking ‘‘failure to TTT
make certifications’’ out of the class of ‘‘defects’’ curable
under that subsection does not apply to the family certifica-
tion, the Commission’s argument suggests, because the ‘‘certi-
fications’’ in question are only those implicated in subsection
(b)(1), namely ‘‘the certifications required pursuant to’’
§ 1.2105.
As for the July 9 Notice, the Commission contends it
simply is not clear enough to require Liberty’s automatic
disqualification for failure to submit the family certification:
Although the Notice stated that a bidder that failed to submit
‘‘required information’’ before the auction would be ‘‘[unable]
to participate in the auction,’’ it did not state that such an
omission was incurable if it came to light after the auction
was held. Because the Notice did not directly speak to
Liberty’s situation, the Commission goes on, disqualifying
Liberty based upon the Notice would deprive it of fair
warning that its application might be disqualified without an
opportunity to correct it, contrary to the rule we endorsed in
High Plains Wireless, L.P. v. FCC, 276 F.3d 599, 607 (2002)
(‘‘That the rule did not afford adequate notice reflexive bid-
ding was unlawful is itself sufficient justification for the
Commission not to penalize [the bidder]’’).
We give ‘‘controlling weight’’ to the Commission’s interpre-
tation of its own regulation ‘‘unless it is plainly erroneous or
10
inconsistent with the regulation.’’ Id. at 606. Here the
Commission’s interpretation does not fall below that standard.
The Commission is, of course, correct in pointing out that the
family certification is not among those required pursuant to
§ 1.2105, the omission of which incurably disqualifies the
applicant as specified in § 1.2105(b)(1). It was not unreason-
able for the Commission to treat the omission of a certifica-
tion required only by a public notice as a ‘‘defect[ ]’’ other
than ‘‘failure to TTT make [a] certification[ ]’’ as that term is
used in § 1.2105(b), and thus to provide the opportunity for
correction that § 1.2105(b)(2) allows for such a defect. We
also agree with the Commission that it should not – more
properly, that it need not – disqualify Liberty after the
auction on the basis of an omission that, according to the
Notice, would disqualify an applicant if discovered prior to the
auction.
Biltmore’s arguments to the contrary notwithstanding, nei-
ther McKay v. Wahlenmaier, 226 F.2d 35 (D.C. Cir. 1955),
nor Superior Oil Co. v. Udall, 409 F.2d 1115 (D.C. Cir. 1969),
requires a different conclusion. In each case we reversed the
Secretary of the Interior’s award of a lease based upon an
incurably defective application. Indeed, in those cases the
Secretary had awarded the lease after finding specifically that
the defect was incurable. See McKay, 226 F.2d at 40 (‘‘The
Secretary found that his application was defective and that it
was filed in an inherently unfair situation which would have
caused it to be rejected had the real situation been disclosed
before the drawing’’); Superior Oil, 409 F.2d at 1119 (quoting
the Secretary, ‘‘the deficiency in Union’s bid cannot be
waived, nor can it be supplied after the time for receipt of the
bids’’). In this case the Commission made the opposite
finding: Because the family certification was not required by
§ 1.2105, the omission could be cured. Hence, McKay and
Superior Oil are not controlling.
2. Loss of bidding credit
Section 1.2105(b)(2) provides that ‘‘[m]ajor amendments
cannot be made to a short-form application after the initial
filing deadline,’’ and states that such amendments include
11
‘‘changes in an applicant’s size which would affect eligibility
for designated entity provisions.’’ Similarly, the July 9 No-
tice, citing this provision, stated that ‘‘[a]s described more
fully in the Commission’s Rules, after the TTT short-form
filing deadlineTTTT [a]pplicants will not be permitted to
make major modifications to their applications (e.g., TTT
change bidding credits).’’ 14 F.C.C. Rcd. at 10644.
Biltmore claims that because Liberty’s amendment (after
the filing deadline) of its short form application to reflect the
loan from Cumulus affected its eligibility for a bidding credit,
the change was a ‘‘major amendment’’ and therefore untime-
ly. Further, it argues, allowing the change in bidding credits
would affect the integrity of the auction by altering one of its
‘‘core circumstances.’’
The Commission responds that the new entrant bidding
credit does not depend upon an applicant’s ‘‘size’’ but upon its
other attributable media interests; the ‘‘size’’ criterion applies
only to the ‘‘small business bidding credit,’’ which is based
upon the bidder’s revenues. See 47 C.F.R. §§ 90.810, 90.814.
The Commission points out that the definition of a ‘‘major
amendment’’ in the regulation, which predates the introduc-
tion of the new entrant bidding credit, refers only to certain
changes in ownership, certain changes in size, and changes in
the intended service areas. 16 F.C.C. Rcd. 12061 ¶ 25. Be-
cause the loan from Cumulus did not effect a change in
Liberty’s ownership or size, the Commission argues, its re-
sulting loss of eligibility for a new entrant bidding credit is
not a ‘‘major amendment’’ and therefore does not disqualify it
from the auction. As for the July 9 Notice, the Commission
argues that it purported merely to restate the regulation. To
the argument that the integrity of the auction was under-
mined by Liberty’s loss of the bidding credit, the Commission
responds that whereas a post-auction increase in bidding
credits may change the ‘‘core circumstances’’ of an auction, a
post-auction reduction in such credits does not.*
* Liberty adopts the Commission’s position but also claims that,
because the July 9 Notice specified that attributable interests were
to be ‘‘determined as of the short form TTT filing deadline – August
12
The Commission’s interpretation of § 1.2105 is neither
plainly erroneous nor inconsistent with the regulation. The
provision describing major amendments certainly addresses
the small business bidding credit, and the Commission rea-
sonably so interpreted it. Whether the provision also applies
to other bidding credits, such as that for new entrants, is not
clear on the face of the regulation. Although Biltmore argues
that for purposes of the new entrant credit we should con-
strue ‘‘changes in size’’ to include the number of media
interests attributable to an applicant, we do not think that is
the only permissible construction of the regulation. On the
contrary, we think the Commission’s narrower interpretation
of the regulation is quite reasonable. Nor does the July 9
Notice, which specifically referred to § 1.2105 as authority for
the proposition that ‘‘changes in bidding credits’’ are major
amendments, require (or perhaps even allow) the Commission
to treat as a major amendment a change that § 1.2105 does
not define as such.
Biltmore argues that the Commission’s prior determina-
tions limit its discretion to find that a change in the new
entrant credit is not a major amendment. In Two Way
Radio of Carolina, Inc., 14 F.C.C. Rcd. 12035, ¶ 8 (1999), the
Commission held that
modification of an applicant’s small business status does
not constitute a minor change under our competitive
bidding rules, and that providing Two Way Radio with
more favorable financial benefits after the close of the
auction, based on information not available to other
bidders during the auction, would adversely affect the
integrity of the auction process.
The rationale for the holding was that ‘‘other bidders placed
bids based upon their understanding of the specific bidding
credit and the type of installment payment plan to which Two
20, 1999,’’ 14 F.C.C. Rcd. at 10639, whereas the loan from Cumulus
was effective after that date, Liberty should not have been denied
the bidding credit. Because no party appealed that determination,
however, Liberty’s claim is not properly before the court. See p. 8,
above, at n.*.
13
Way Radio, as well as other bidders, were entitled.’’ Id. ¶ 9.
See also Clearcall, Inc., 12 F.C.C. Rcd. 965 (WTB 1997). The
Commission’s rationale seems at first blush to apply with
equal force to the new entrant credit.
The Commission, however, distinguishes this precedent by
pointing out that the proposed amendment in Two Way
Radio would have increased the applicant’s bidding credit,
while this case involves an amendment that decreases the
applicant’s bidding credit. In its Order the Commission
stated that it ‘‘fail[ed] to see how [Liberty’s] mistake would
have deprived the other auction participants of information as
to Liberty’s valuation of the frequency, or would have other-
wise influenced their bidding strategies.’’ 16 F.C.C. Rcd.
12061, ¶ 39.
Nor do we see any such problem. Indeed, it is not clear to
us – and the Commission does not explain – why even a post
hoc increase in bidding credits would raise a question about
the integrity of an auction. But the Commission is under no
obligation in this case to justify its holding in Two Way
Radio, whereas Biltmore has the burden of persuading us
that Liberty’s post-auction loss of the bidding credit was, as
the Commission said of the change in Two Way Radio,
prejudicial to other bidders. To the extent Biltmore claims it
was prejudiced because, if it had ‘‘known that it was bidding
with cheaper dollars than Liberty, it might very well have
been willing to press the bidding higher,’’ it makes no sense:
Liberty’s cost could not rationally affect Biltmore’s willing-
ness to pay. Accepting for the sake of the argument Bilt-
more’s suggestion that Liberty might ‘‘not have bid as high as
it did if it had known that it was paying full dollars,’’ we see
only that Liberty’s error may have been costly to it, not that
it could ‘‘adversely affect the integrity of the auction process,’’
Two Way Radio, 14 F.C.C. Rcd. ¶ 8.
B. Misrepresentation
Biltmore next claims the Commission was not free to reject
the ALJ’s finding that Liberty misrepresented facts about the
availability of a transmitter site. The appellant maintains
that because the Commission did not disturb that finding on
14
its initial review, it became the law of the case. Biltmore also
claims the ALJ’s finding is entitled to special deference, and
that in any event the Commission’s contrary finding that
there was no misrepresentation is not supported by substan-
tial evidence. None of these claims has any merit whatsoever.
1. Law of the case
Biltmore argues first that the Review Board’s decision, 6
F.C.C. Rcd. 1978 (1991), acted to affirm the ALJ’s finding of
misrepresentation. Here it points to the statements in the
Commission’s first decision on reconsideration, 7 F.C.C. Rcd.
7581 (1992), that Liberty’s application for review of the
misrepresentation finding had been denied ‘‘without specify-
ing reasons’’ and its petition for reconsideration raised only
matters that had been ‘‘already considered and rejected with-
out comment.’’ Id. ¶ 36. Biltmore claims the ALJ’s finding
therefore became the law of the case and the Commission
could not later reverse it.
The Commission, joined by Liberty, responds that this
argument is not properly before the court because Biltmore
did not raise it before the Commission. Not so. Although
Biltmore argued before the Commission first that it should
review and adopt the ALJ’s findings, it did argue in the
alternative that the ALJ’s findings were the law of the case.
See BFB Opp. to Supp. Brief at 2, 4. We therefore go to the
merits of Biltmore’s law of the case argument.
The Review Board expressly found it unnecessary to reach
the misrepresentation issue once it had held Liberty was
disqualified ‘‘on the site issue.’’ 6 F.C.C. Rcd. 1978, ¶ 12.
For the same reason the Commission, on appeal, had no
reason to consider and to reject Liberty’s claim that the ALJ
had erred in finding a misrepresentation in its application.
Biltmore is simply mistaken, therefore, in suggesting that the
Commission adopted the ALJ’s misrepresentation finding.
For the record, we note also that the law of the case doctrine
is of uncertain force in the context of administrative litigation.
See Lockert v. U.S. Dep’t of Labor, 867 F.2d 513, 518 (9th Cir.
1989) (‘‘[I]t is doubtful that federal courts have the authority
15
to extend the law of the case doctrine to proceedings involv-
ing non-judicial decisionmakers’’).
2. Deference to the ALJ’s credibility findings
Next Biltmore, now joined by Orion, argues that the ALJ’s
finding that Klemmer ‘‘strain[ed] credulity’’ and ‘‘blatantly
dissembled’’ is a credibility determination to which we must
give special deference on review. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 496 (1951) (‘‘The significance of
[the ALJ’s] report, of course, depends largely on the impor-
tance of credibility in the particular case’’). They maintain
that the ALJ must have based his finding upon Klemmer’s
demeanor, which of course defies appellate inspection. See
United States v. Zeigler, 994 F.2d 845, 849 (D.C. Cir. 1993).
The Commission and Liberty, on the other hand, argue the
ALJ’s finding reflects not his assessment of Klemmer’s and
Warner’s credibility but rather his ultimate judgment on the
issue whether Klemmer had misrepresented the availability
of a transmitter site. Similarly, they claim it was the proposi-
tion that Klemmer had a reasonable assurance the Utter site
was available to Liberty, rather than Klemmer’s testimony,
that ‘‘strain[ed] credulity.’’
As the Commission emphasizes, the important issue in the
misrepresentation inquiry was not whether Klemmer had a
reasonable assurance, but whether she was lying when she
said she had a reasonable assurance. Indeed, the ALJ’s
entire discussion of the misrepresentation issue focuses upon
the inadequacy of Klemmer’s efforts to secure a site, as
compared to the efforts Utter expected her to make (and the
efforts Lee did make). 5 F.C.C. Rcd. at 2866-67 ¶ ¶ 36-51,
2879 ¶ 8. The ALJ seems to have reasoned that any reason-
able person would know the effort Klemmer made was inade-
quate, so Klemmer must have been lying when she said she
thought it was adequate. Nowhere does the ALJ directly
attack Klemmer’s testimony that she believed at the time that
her efforts were adequate, let alone attribute such disbelief to
his interpretation of her demeanor. Instead, his appeal is to
other evidence in the record, and we owe no special deference
to the ALJ’s interpretation of the record.
16
3. Substantial evidence for the Commission’s finding of no
misrepresentation
Finally, Biltmore and Orion argue that the Commission’s
finding Liberty did not misrepresent the facts in its applica-
tion is not supported by substantial evidence in the record.
See 5 U.S.C. § 706(2)(E); Contemporary Media, Inc. v. FCC,
214 F.3d 187, 194 (D.C. Cir. 2000). Commission precedent
establishes that misrepresentation can be either intentional or
grounded in ‘‘an indifference and wanton disregard for the
licensee’s obligations to the Commission that is equivalent to
an affirmative and deliberate intent.’’ Liberty Cable Co., Inc.,
15 F.C.C. Rcd. 25050, ¶ 50 (2000) (quoting RKO General, Inc.
v. FCC, 670 F.2d 215, 225 (D.C. Cir. 1981)).
Under either approach there is substantial evidence to
support the Commission’s finding that Klemmer did not
misrepresent Liberty’s situation. Klemmer’s testimony was
that Warner, who she had reason to believe was knowledge-
able about such things, told her that an oral agreement with
Utter would suffice to constitute a reasonable assurance of
having a transmitter site. She further testified that she
believed she had reached such an oral agreement, and she
described a meeting that the Commission could reasonably
accept as justification for that belief. Although Utter gave a
different account of the meeting, her testimony was internally
inconsistent and the Commission need not have credited it.
In sharp contrast, Klemmer’s testimony was consistent and
corroborated by that of Warner. Although Warner was a
friend of Klemmer’s, that is not enough, contrary to Orion’s
suggestion, to require that the Commission discount his testi-
mony. The testimony of Klemmer and Warner is surely
sufficient to support the Commission’s finding that Klemmer
believed she had a reasonable assurance that Utter’s site was
available to Liberty.
III. Conclusion
For the foregoing reasons the Commission’s order award-
ing the license to Liberty is
Affirmed.