Amer Fam Assn Inc v. FCC

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2003 Decided May 11, 2004
No. 00-1310
AMERICAN FAMILY ASSOCIATION, INC.
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
NATIONAL PUBLIC RADIO, INC. AND
ASSOCIATION OF PUBLIC TELEVISION STATIONS,
INTERVENORS
Consolidated with
00-1479, 01-1222
On Petitions for Review of Orders of the
Federal Communications Commission
–————
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
Stephen M. Crampton argued the cause for petitioners
American Family Association, Inc. and Community Televi-
sion, Inc. With him on the briefs were Patrick J. Vaughn,
Brian Fahling, Michael J. DePrimo, and Gene A. Bechtel.
Ernest T. Sanchez argued the cause for petitioner State of
Oregon. With him on the briefs was Susan M. Jenkins.
C. Grey Pash, Jr., Counsel, Federal Communications Com-
mission, argued the cause for respondents. With him on the
brief were R. Hewitt Pate, Acting Assistant Attorney Gener-
al, U.S. Department of Justice, Robert B. Nicholson and
Robert J. Wiggers, Attorneys, John A. Rogovin, General
Counsel, Federal Communications Commission, and Daniel
M. Armstrong, Associate General Counsel.
Lonna M. Thompson, Neal A. Jackson, Gregory A. Lewis,
and Michelle M. Shanahan were on the brief for intervenors.
Marilyn Mohrman–Gillis entered an appearance.
Angela J. Campbell and Jeffrey M. Karp were on the brief
for amicus curiae Office of Communication of the United
Church of Christ, Inc. in support of respondents.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: These consolidated petitions for
review challenge the Federal Communication Commission’s
(‘‘FCC’’) new system for allocating noncommercial educational
(‘‘NCE’’) broadcast licenses among competing applicants.
This system allocates the licenses primarily by awarding
‘‘points’’ to each applicant based on several criteria; the
applicant with the highest number of points presumptively is
awarded the license. The FCC promulgated the system by
order after a notice-and-comment proceeding, In re Reexami-
nation of the Comparative Standards for Noncommercial
Educational Applicants, 15 FCC Rcd 7386 (2000), vacated in
part, Nat’l Pub. Radio, Inc. v. FCC, 254 F.3d 226 (D.C. Cir.
2001) (‘‘Order’’), and affirmed the rule on rehearing, In re
Reexamination of the Comparative Standards for Noncom-
3
mercial Educational Applicants, 16 FCC Rcd 5074 (2001)
(‘‘Reh’g Order’’).
Petitioner American Family Association, Inc., (‘‘AFA’’) a
national Christian ministry that owns and operates 113 NCE
stations, claims that the new criteria for allocating such
licenses systematically discriminate against religious national
broadcasting networks and are thereby unconstitutional.
AFA also says that the FCC irrationally justified the point
system, making it arbitrary and capricious. Petitioner Com-
munity Television, Inc., an NCE licensee based in Atlanta,
Georgia, produces secular and religious programming and
joins AFA’s claims. Separately, the state of Oregon asserts
that, for different reasons, the criteria are irrational and
exceed the FCC’s authority under the Telecommunications
Act. We reject all of petitioners’ contentions and deny the
petitions.
I. Background
A. The Point System
Petitioners’ claims concern the process the FCC has
adopted for the allocation of NCE broadcast licenses. NCE
licenses confer on license holders the exclusive right to broad-
cast on television and FM radio frequencies that the FCC has
set aside exclusively for noncommercial educational use.
About twenty percent of total channels and frequencies have
been so reserved.
The new system at issue in this case arose from the FCC’s
decision, in the late 1990s, to change the way it allocates these
licenses. The old system allocated them via individualized
FCC hearings that selected among competitors based on
what was, in the FCC’s words, a ‘‘vague standard [that] may
[have made] rational choices among noncommercial applicants
difficult, if not impossible.’’ Reexamination of the Policy
Statement on Comparative Broadcast Hearings, 7 FCC Rcd
2664, 2669 (1992). In 1998, the FCC gave notice of and
invited comment on a proposal to implement a new system
that would allocate NCE licenses based on more objective
criteria. See In re Reexamination of the Comparative Stan-
4
dards for Noncommercial Educational Applicants, 13 FCC
Rcd 21167 (1998).
After receiving comments, the FCC eventually adopted a
new point system for allocating NCE licenses. As between
qualified applicants who seek the same license, the system
presumptively awards the license to the applicant with the
greatest number of ‘‘points’’ (subject to some complications
not relevant here). 47 C.F.R. § 73.7003(a) (2003). If appli-
cants have the same number of points, the applicant with the
fewest existing licenses gets the license. Id. § 73.7003(c)(1).
If applicants have the same number of points and the same
number of existing licenses, the applicant with the fewest
outstanding license applications wins. Id. § 73.7003(c)(2).
To screen out fraudulent claims in applications, the FCC
stated that its staff will conduct random audits of applica-
tions. Order ¶ 89. Also, the FCC will conduct ‘‘acceptability
studies’’ for each applicant who has the most points. Id. ¶ 90.
If an application is deemed unacceptable after investigation,
the FCC will return it. Finally, winning applicants must
maintain the characteristics for which they received points for
at least four years of the eight-year license term. 47 C.F.R.
§ 73.7005(a). During that period, any entity that buys the
station must demonstrate eligibility for the same number of
points as the selling applicant had. Id.The system awards points as follows:
1 two points for ‘‘local diversity of ownership’’;
1 one to two points for the ‘‘best technical proposal’’;
1 three points for ‘‘established local entities’’; and
1 two points for status as a ‘‘state-wide educational
network,’’ but only for a network that does not qualify
for diversity-of-ownership points.
Id. § 73.7003.
For any given license, the local diversity-of-ownership cri-
terion favors applicants who do not own or control other
stations near the area the license holder will serve. Specifi-
cally, an applicant gets two points for diversity of ownership
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if the applicant has no ‘‘attributable’’ interests in stations with
overlapping ‘‘principal community contours’’ (defined as areas
covered by a certain broadcast signal strength) and if the
applicant’s governing documents require that diversity to be
maintained. Id. § 73.7003(b)(2). The FCC stated that it
adopted this criterion to foster broadcast diversity by allow-
ing the local public to be served by different NCE licensees.
E.g., Order ¶ 29.
An applicant has attributable interests in the licenses it
owns and the licenses its owners own. ‘‘Ownership interests’’
are defined in the notes to 47 C.F.R. § 73.3555, the commer-
cial ownership attribution rules. 47 C.F.R. §§ 73.3555(f),
73.7000. For example, a licensee gets no points for diversity
if its broadcasting range (appropriately defined) overlaps with
another licensee who is owned by the same person or corpo-
ration. Also attributable to the applicant is an interest of an
entity that both provides a third of the applicant’s equity or
debt and either provides more than 15 percent of the appli-
cant’s weekly programming or has an ownership interest
(again as defined by section 73.3555) in the same media
market. Id. § 73.7000. If an existing licensee, for instance,
financed construction of a new station for an applicant, on
condition that the applicant air a majority of the existing
licensee’s programming, the existing licensee’s interest would
be attributed to the applicant. See Order ¶ 79.
Like the diversity criterion, the ‘‘established local entities’’
factor also advantages applicants the FCC deemed would
advance the cause of ‘‘localism’’ – the goal of having licenses
controlled by people in diverse communities and who are
familiar with the community the license covers. Under that
factor, entities that have been ‘‘local’’ continuously for two
years are considered ‘‘established local entities,’’ which enti-
tles them to three points. 47 C.F.R. § 73.7003(b)(1). ‘‘Lo-
cal,’’ in turn, means that the applicant is physically headquar-
tered, has a campus, or has 75% of its board members
residing within 25 miles of the community the broadcast
license will serve. Id. § 73.7000. Government entities are
considered ‘‘local’’ wherever those entities’ authority extends.
Id.
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The state-wide educational network credit awards two
points to certain schools and universities. Educational enti-
ties that do not qualify for diversity of ownership points will
be awarded two points if they both have authority over at
least 50 elementary or secondary schools and provide pro-
gramming to the schools in furtherance of the schools’ curric-
ulum. Id. § 73.7003(b)(3). Higher education institutions
qualify if they serve at least five full-time campuses and
provide programming in furtherance of those campuses’ cur-
riculum. Id.
The FCC created the state-wide educational network credit
to compensate for the inability of large educational networks
to qualify for the diversity credit. See Order ¶ ¶ 58-60. That
inability arises because large educational networks (for exam-
ple, state universities) control stations that serve many
schools and campuses within a single state. The signals of
those stations generally overlap with the areas served by
other in-state broadcast licenses. The overlap disqualifies the
networks who control these stations from receiving two points
for diversity of ownership. This inability, the FCC reasoned,
merited awarding such networks two additional points, even
though they are, according to the criteria, ‘‘nondiverse’’ for
licenses within the existing reach of their networks. Id. ¶ 60.
Finally, the system awards points to technically superior
applicants. An applicant receives one additional point if its
station will cover 10% more area and population than the next
technically best applicant’s station. 47 C.F.R.
§ 73.7003(b)(4). An applicant receives two points if its sta-
tion will cover 25% or more area and population than the next
technically best applicant’s station. Id.B. The Structure of AFA, NPR, and PBS
National Public Radio (‘‘NPR’’) is a nonprofit corporation
that produces and distributes news to member radio stations.
It also licenses news to nonmember stations, many of which
are state colleges and universities. Many NPR member
stations also are funded by the Corporation for Public Broad-
casting, a federally created corporation. The public fisc,
however, is not their only source of money. They also receive
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individual membership dues and federal and local grants.
The Public Broadcasting Service (‘‘PBS’’) functions similarly.
It distributes programming to member stations from individ-
ual stations that produce the programming (rather than cen-
trally producing the programming itself).
Many public NCE stations are affiliated with NPR and
PBS and derive much of their programming from NPR, PBS,
and other national sources. For example, the vast majority
of public radio stations’ weekly news broadcasts, at least as of
a few years ago, came from national sources, like NPR, and
Public Radio International. NPR-affiliated radio stations
broadcast local programming as well. Music programs com-
prise most of that local content. As for public television, PBS
centrally distributes most prime-time public programming,
but public television stations also broadcast local programs.
Despite their influence over public television and radio,
PBS and NPR themselves hold no broadcast licenses. Li-
censes are held instead by the individual affiliates. However,
the affiliates do exercise some degree of control over NPR’s
and PBS’s operations. NPR and PBS members, for example,
elect managers of affiliated stations to serve on NPR’s and
PBS’s board of directors.
Other national networks, like the one run by AFA, are
more centralized than PBS and NPR. AFA is a national
media network that produces and distributes news from a
Christian perspective. Unlike public broadcasting affiliates,
AFA and other large national chains own the stations to
which they distribute news. AFA also holds the licenses that
authorize its stations to broadcast NCE programming. Eight
of the largest such centralized national chains, like AFA, are
devoted primarily to religious programming.
AFA’s centralized structure comparatively disadvantages it
under the point system as against NPR’s and PBS’s decen-
tralized structures. NPR and PBS have no ownership, equi-
ty, or lending interests in individual NCE public licensees.
They therefore have no ‘‘attributable’’ interest in those sta-
tions under the FCC’s attribution rules. Religious networks,
including AFA, that own their member stations and centrally
hold the licenses have attributable ownership interests in the
8
stations they own and in the licenses they hold. For exam-
ple, if two NPR affiliates that regularly broadcast national
NPR programming applied for licenses with overlapping sig-
nals, each individual station still would potentially be eligible
for the diversity credit for each license. The same would not
be true of two overlapping AFA affiliates: AFA’s ownership
interest in each would be attributed to each affiliate, making
the applicants nondiverse and disqualifying them from diver-
sity credit. Similarly, because AFA centrally owns and con-
trols its members, AFA affiliates will not likely qualify for the
‘‘established local entities’’ credit. NPR and PBS affiliates, in
contrast, are mostly locally controlled, and are thus more
likely to receive points for being established local entities.
Even some public affiliates who are nondiverse will qualify
for two additional points under the state-wide educational
network credit. Because of their size and educational focus-
es, the most likely candidates for this credit are state public
schools and universities. These institutions already hold
many overlapping NCE licenses. Yet institutions that qualify
for this credit may receive two additional points even for
licenses within their current broadcast reach. Private edu-
cational organizations, in contrast, are not as large, and so
will not get the credit without dramatically expanding, and
only if they do so in one state.
II. Analysis
Petitioners raise both statutory and constitutional chal-
lenges to the FCC’s rule. We will first deal with the statuto-
ry challenges, and because we reject those, next consider the
constitutional challenges.
A. Statutory Challenges
Both AFA and Oregon submit that the final rule is arbi-
trary and capricious. Oregon also claims that the final rule is
inconsistent with 47 U.S.C. § 398. Both arguments lack
merit.
1. Rationality of the Locality Credit
We reject AFA’s claim that the FCC’s justification for
adopting the three-point credit for established local entities is
9
arbitrary and capricious under the standard set forth in
Motor Vehicle Manufacturers Association v. State Farm
Mutual Life Insurance Co., 463 U.S. 29, 41-44 (1983). AFA
argues that the localism credit is irrational because, as AFA
correctly points out, the FCC justified it by analogizing to its
instructional television rules, which allocate points to appli-
cants who produce instructional television and FM radio
programming, and which also heavily favor local applicants.
The analogy between the two, AFA claims, is false: instruc-
tional television, for example, is used in school classrooms,
whereas NCE broadcasting serves the community at large.
We hold that the FCC’s analogy to the instructional televi-
sion rules is not irrational. The FCC explained that there is
a strong tradition of local control in NCE broadcasting, and
that local entities best understand the educational needs of,
and are accountable to, their communities. Order ¶ ¶ 42-48.
The FCC reasoned that ‘‘local entities best understand the
educational needs and academic standards of their communi-
ties[,] and are the best authorities for selecting programming
to meet those needs.’’ Id. ¶ 46.
NCE broadcasting is analogous to instructional television in
that both are educational. It is true, as AFA points out, that
NCE broadcasting does not focus solely on instructional
educational programming, as do the instructional television
rules. But it remains true that NCE applicants’ broadcast
frequencies, as a threshold matter, all must ‘‘be used for the
advancement of an educational program,’’ 47 C.F.R. 73.503,
and so, by definition, are also educational. There is a rational
connection between local accountability and education, since it
is reasonable to expect that locals are in the best position to
judge their own educational needs. That rational connection,
together with local entities’ strong traditional role in NCE
broadcasting, makes the agency’s explanation rational.
Oregon mounts three distinct, and equally unpersuasive,
challenges to the rationality of the locality credit. As noted
above, the locality credit awards three points to ‘‘local’’ appli-
cants. The rule defines a ‘‘local’’ applicant as one physically
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headquartered in, having a campus in, or having 75% of its
board members residing within 25 miles of the center of the
community the broadcast license will serve. 47 C.F.R.
§ 73.7000. Government entities are considered ‘‘local’’ wher-
ever their authority extends. Id.Oregon first faults the FCC for failing to award points for
local origination of programming, in addition (or perhaps in
lieu of) to the points for local control over programming. We
find the FCC’s reason for rejecting Oregon’s proposal to be
rational. The FCC explained that local broadcasters should
have the flexibility to broadcast programming regardless of
its source, given that NCE stations have a wide audience.
Order ¶ ¶ 65-66. That explanation is quite rational. There is
no reason to suppose that the supply of NCE programming is
coextensive with demand for it in any given local community.
In truth, the opposite assumption is plausible: local supply
may well be inadequate to meet local demand, given that
there are likely, on average, more listeners in any given
community than there are content producers. In any event,
even if local origination of programming served the needs of
local communities well, fostering local control advances that
goal also. Given that both options are rational, the FCC’s
choice of means is well within its discretion.
We also reject Oregon’s other reasons for thinking the
locality credit arbitrary. Oregon argues that mere local
presence, the factor the locality credit rewards, will not
ensure that programming will be locally produced. This
argument misses the point. As explained above, the FCC
designed its locality credit not to encourage locally produced
programming, but rather to reward local control over pro-
gramming wherever the programming is produced. Id. ¶ 66;
Reh’g Order ¶ 74. The practice of rewarding applicants who
are controlled by locals is rationally related to that goal.
Oregon also claims that the FCC’s definition of ‘‘local’’ is
irrational. Again we disagree. Oregon argues that the 25-
mile radius is arbitrary because that criterion does not ac-
count for the different geographies of local communities
nationwide. But the FCC offered two rational justifications
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for not individualizing its definition of local. First, the FCC
reasoned that doing so would be difficult for applicants to
administer. Reh’g Order ¶ 50. Second, the FCC justified the
radius by analogy to that same definition of local in the
instructional television rules. Order ¶ 54. For the reasons
stated above, the analogy between this rulemaking proceed-
ing and the instructional television rules is rational. We find
nothing arbitrary in this chain of reasoning.
Lastly, Oregon attacks the rationality of defining govern-
ments to be local wherever their authority extends. It ar-
gues that it is irrational to so limit the definition of local,
given that the signals of educational broadcasting travel
across jurisdictional lines. We once again find no cognizable
defect in the FCC’s reasoning. The FCC reasoned that local
governments are especially accountable to people within their
jurisdictions and so will be especially responsive to their
needs. Reh’g Order ¶ 50. This explanation meshes quite well
with the FCC’s overarching premise that encouraging local
control will ensure local accountability over educational
broadcasting; indeed, politicians are probably more accounta-
ble to voters in their districts than local broadcasters are to
their neighbors. It is true that, unlike the 25-mile radius,
this aspect of the definition of local is individualized, and so
will be administratively costly. But the FCC addressed this
worry as well. It pointed to ‘‘recognizable extrinsic factors,
such as where a person pays taxes and what school district he
lives in,’’ that will ease the administrative difficulties of
making this aspect of the definition of local dependent on
individualized factors. Id. We hold that these justifications
are legally adequate.
2. Rationality of the State-wide Educational Credit
AFA also assails the FCC’s justification for adopting the
state-wide educational network credit. That credit, again,
awards two points to certain very large schools and universi-
ties that do not qualify for diversity-of-ownership credit but
operate in a single state. AFA’s argument is that this credit
does not advance the cause of broadcast diversity. AFA
points out that as a practical matter, the only beneficiaries of
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the credit will be large state universities, many of which
already hold many NCE licenses and offer ‘‘a uniform view-
point[ ] determined (in most cases) by a distant bureaucracy.’’
AFA Br. at 38. That two-point advantage, the argument
goes, negates the edge a truly diverse entity, one who quali-
fies for the two-point diversity credit, would otherwise have.
The state-wide network credit therefore undermines the
FCC’s stated goal of advancing broadcast diversity, AFA
submits.
We do not think AFA’s argument carries its high burden of
demonstrating that the FCC’s justification for the state-wide
network credit is on its face arbitrary and capricious. First,
the FCC reasoned that large schools are especially attractive
candidates for NCE broadcast licenses, as they ‘‘ensure[ ]
that educational programming is available throughout a spe-
cific area in a coordinated and organized manner most appro-
priate to that area, and especially to schools.’’ Therefore,
these institutions carry ‘‘distinct benefits’’ even if they do not
qualify for the diversity-of-ownership credit. Order ¶ ¶ 56,
58. Second, only large schools should be eligible for the
credit, the FCC reasoned, because smaller schools, including
private entities, will more easily be eligible for the diversity
credit and will not need an extra boost. Id. ¶ 60. Third,
single-state networks provide more focused educational bene-
fits than do ‘‘national and regional’’ networks, since national
and regional networks cannot ‘‘set the educational policies of
schools or have schools accountable to them.’’ Id.
We cannot say that this explanation is arbitrary and capri-
cious on the record before us. As explained above, there is a
rational link between NCE broadcasting and educational pro-
gramming. It is reasonable to assume that educational insti-
tutions are in an especially good position to provide edu-
cational programming, whether or not that programming is
‘‘diverse.’’ It follows that there is a rational basis in provid-
ing educational institutions with extra points even if they do
not qualify for diversity credit. There is no question that
state-wide network credit does that.
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The more difficult issue is whether limiting that educational
benefit only to educational organizations of a certain size and
in a single state – in particular, organizations with a minimum
of 50 secondary and elementary schools in a single state or at
least five campuses in a single state – is rational. The FCC’s
explanation for this aspect of the credit, again, relies on two
premises: first, its prediction that smaller educational organi-
zations will easily qualify for the diversity credit; and second,
the empirical assumption that multi-state and regional net-
works ‘‘are generally satellite operations of distant stations,
without the ability to set educational policies for schools or
have schools accountable to them,’’ and therefore as edu-
cational providers are inferior to large single-state networks.
Order ¶ 60.
These assumptions appear rational on the current record.
We have no obvious way of verifying the FCC’s assertion
regarding the general characteristics of multi-state and re-
gional networks. Neither party has directed us to empirical
information in the record either verifying or contradicting
this assumption. We must defer to the Commission’s expert
judgment in the absence of record evidence indicating that
the Commission’s assumption is a clear error of judgment, or
a showing that the empirical assumption is facially implausi-
ble or inconsistent.
The FCC’s predictive judgment that smaller and multi-
state educational organizations will more easily qualify for the
diversity credit is also on its face rational. It is rational to
assume that the credit will capture the distinct, yet (in the
FCC’s judgment) less educational benefits that flow from
favoring such entities, since those entities are less likely to
have overlapping signals. If those entities are significantly
more likely to be eligible for the diversity credit, then it is
rational to assume that this credit will adequately account for
those benefits, as the state-wide network credit does for large
single-state networks. And because large, single-state edu-
cational entities cannot receive the state-wide network credit
if they qualify for diversity points, there is less risk of double-
counting the extent of those networks’ distinct educational
benefits. In sum, the FCC’s reasonable assumption that
14
multi-state and regional networks are inferior educational
providers, together with the prediction that those entities will
typically be eligible for the diversity credit (while state-wide
networks who receive the state-wide credit will not), is
enough to make the credit nonarbitrary.
We caution, however, that we are not foreclosing any and
all future challenges to the rationality of the state-wide
network credit – or, for that matter, any aspect of the point
system that relies on verifiable empirical predictions or as-
sumptions. The Commission may well have a future obli-
gation to reevalute the point system if the empirical predic-
tions and premises it used to justify the point system turn out
to be erroneous. As we have previously noted, the FCC’s
‘‘necessarily wide latitude to make policy based on predictive
judgments deriving from its general expertise implies a cor-
relative duty to evaluate its policies over time to ascertain
whether they work – that is, whether they actually produce
the benefits the Commission originally predicted they would.’’
Bechtel v. FCC, 10 F.3d 875, 880 (D.C. Cir. 1993) (internal
quotation marks and citation omitted). For example, experi-
ence may establish that, contrary to the FCC’s prediction,
most multi-state and regional educational institutions will not
be able to obtain diversity credits to compensate for the
advantage the state-wide educational credit gives large single-
state educational organizations. On the present record, how-
ever, the Commission’s empirical assumptions and predictions
are sufficiently rational to survive arbitrary-and-capricious
review.
3. Rationality of the Attribution Rules
AFA challenges the rationality of the point system’s attri-
bution rules, which we described above. AFA’s argument on
this score is that the attribution rules arbitrarily favor public
broadcasting networks like PBS and NPR over private reli-
gious networks like AFA. AFA points out, correctly, that the
rules do not attribute control of NPR’s and PBS’s licensees to
NPR and PBS, even though NPR and PBS provide those
affiliates with money and programming. In contrast, because
AFA and similar organizations own and control their affili-
15
ates, the attribution rules treat AFA as a single, large,
nonlocal entity.
We do not consider the merits of this challenge because we
do not believe that any party raised it with sufficient clarity
before the FCC. It is black-letter administrative law that 47
U.S.C. § 405 bars us ‘‘from considering any issue of law or
fact upon which the Commission has been afforded no oppor-
tunity to pass.’’ AT&T Corp. v. FCC, 317 F.3d 227, 235 (D.C.
Cir. 2003) (internal quotation marks and citation omitted).
The FCC argues in its brief that no party to the Commis-
sion’s proceedings challenged the rationality of the attribution
rules. AFA does not respond to this argument in its reply
brief. In response to questioning at oral argument, AFA’s
counsel said that this issue had been raised in comments by
the Educational Media Foundation. The Foundation, howev-
er, argued that the attribution rules were unconstitutional,
not that they were arbitrary and capricious. Reh’g Order
¶ ¶ 15–21. Because the constitutionality of the rules is dis-
tinct from its substantive policy rationale, we do not believe
that a ‘‘reasonable Commission necessarily would have seen
[that] question raised before [the Court] as part of the case
presented to it,’’ AT&T Corp., 317 F.3d at 235 (internal
quotation marks, emphasis, and citation omitted), simply be-
cause the Foundation challenged the constitutionality of the
attribution rules. We therefore do not consider the merits of
this claim.
4. Rationality of the FCC’s System for Screening out
Factually Incorrect License Applications
Oregon also takes issue with the FCC’s system for verify-
ing that NCE applicants actually have the attributes they
claim on their license applications. We reject this challenge
as well. Oregon claims, specifically, that the FCC irrationally
failed to require NCE applicants to submit documentary
evidence of their bona fide NCE status. We hold, once again,
that the FCC adequately addressed this concern. The FCC
noted that competing applicants have incentives to bring
factually incorrect license applications to its attention, which
they no doubt do. Order ¶ ¶ 88-89. Also, the Commission
16
said that it will delegate to its staff the task of developing
documentation that will verify whether applicants qualify for
the points they claim, and that the FCC staff will randomly
audit that documentation for compliance. Id. Finally, the
FCC said that it will conduct ‘‘acceptability’’ studies to deter-
mine whether the applicant with the most points is actually
eligible. Id. ¶ 90. Even if Oregon is correct that these steps
are inadequate to the task, that does not change the fact that
there is a rational connection between them and the stated
problem. The FCC’s explanation is not arbitrary.
5. 47 U.S.C. § 398The final statutory issue we must address is Oregon’s
argument that the point system conflicts with 47 U.S.C.
§ 398. That section provides, in pertinent part:
Nothing contained in this part shall be deemed TTT to
authorize any department, agency, officer, or employee of
the United States to exercise any direction, supervision,
or control over public telecommunciations, TTT or over
the curriculum, program of instruction, or personnel of
any educational institution, school system, or public tele-
communications entity.
TTT
(c) Control over content or distribution of programs.
Nothing in this section shall be construed to authorize
any department, agency, officer, or employee of the
United States to exercise any direction, supervision, or
control over the content or distribution of public telecom-
munications programs and services, or over the curricu-
lum or program of instruction of any educational institu-
tion or school system.
47 U.S.C. § 398(a) & (c).
Oregon argues that the final rule violates this provision
because the rule directs ‘‘the curriculum [or] program of
instruction’’ of educational institutions by influencing edu-
cational content. Id. § 398(a). We do not consider this
argument on its merits because it was not presented to the
Commission below. As Oregon concedes, the proper waiver
17
standard to apply under the law of the circuit is ‘‘whether a
reasonable Commission necessarily would have seen the
[§ 398] question raised before us as part of the case present-
ed to it.’’ Time Warner Entm’t Co., L.P. v. FCC, 144 F.3d 75,
81 (D.C. Cir. 1998) (emphasis in original). The comments to
which Oregon points did not preserve the issue under this
standard.
Oregon argues that comments by the Educational Media
Foundation and the Station Resource Group raised the ques-
tion. However, those comments argued only that the FCC’s
explanation for favoring certain types of educational program-
ming over others was irrational. Station Resource Group
Pet. for Recons. at 8; Order ¶ 60. They did not mention
§ 398. Nor could the Commission have obviously inferred
from the substance of the comments that § 398 was relevant
to the issues they raised. Challenging the way in which the
FCC regulates NCE content says nothing about whether the
FCC can influence content at all. The FCC therefore had no
opportunity to offer a construction of § 398 for our review.
We are barred from deciding such issues in this procedural
posture.
B. Constitutional Challenges
Having rejected petitioners’ statutory challenges, we must
next consider their constitutional challenges. AFA claims
that the point system is facially unconstitutional under the
free speech and free exercise clauses of the First Amend-
ment, and under the equal protection ‘‘component’’ of the
Fifth Amendment’s due process clause. Although AFA char-
acterizes its argument as an ‘‘as-applied’’ challenge, given that
the FCC applied the point system retroactively to licensees’
pending applications and did not allow amendments, the
substance of AFA’s argument makes clear that it is challeng-
ing the point system not simply as it applies to the current
pool of applicants, but also as it applies to future applicants.
As the FCC points out, moreover, the Commission has not
yet denied any of the license applications of AFA’s affiliates.
Any applicants whose applications are denied can seek review
of those denials in this Court, and then have their as-applied
claims tested. Therefore, we treat AFA’s constitutional case
18
as a facial challenge. We hold that the system facially
violates neither the First nor the Fifth Amendment.
1. Free Speech
The first issue is the appropriate standard of review to
apply to the point system under the free speech clause of the
First Amendment. AFA claims that the point system is
content-based, and therefore that strict scrutiny is the appro-
priate standard of review. AFA’s argument is that the point
system favors nonreligious speech, like that broadcast on
public television and radio stations, over the religious speech
carried by AFA’s affiliates. Therefore, AFA argues, the
point system explicitly prefers some speakers over others.
At a minimum, AFA continues, the regulations should be
subject to some form of heightened scrutiny. We do not
agree, and instead hold that rational basis scrutiny is the
proper standard.
A review of the legal principles applicable to the radio and
television broadcasting spectrum makes the error of AFA’s
argument clear. It is well established that content-netural
‘‘structural’’ regulation of the radio and television broadcast
spectrum, ‘‘that is, [that] involving the ‘where’ and ‘when’ of
broadcasting,’’ Ruggiero v. FCC, 317 F.3d 239, 243 (D.C. Cir.
2003) (en banc), is generally subject only to rational basis
scrutiny. Id. at 244 (citing FCC v. National Citizens Comm.
for Broad., 436 U.S. 775, 802 (1978) (‘‘NCCB’’)). See also
Sinclair Broad. Group, Inc. v. FCC, 284 F.3d 148, 167-68
(D.C. Cir. 2002); Fox Television Stations, Inc. v. FCC, 280
F.3d 1027, 1045-46 (D.C. Cir. 2002). The justification for this
deferential standard, according to the Supreme Court, lies in
the unique physical characteristics of the broadcast medium.
Regulation of some form is an irreducible feature of any
broadcast spectrum worth having, since ‘‘a finite number of
frequencies can be used productively; this number is far
exceeded by the number of persons wishing to broadcast to
the public.’’ NCCB, 436 U.S. at 798 (citing Red Lion Broad-
casting Co. v. FCC, 395 U.S. 367, 375-77 (1969)).
This deferential standard is applicable here. The point
system governs the structure of all of NCE broadcasting by
19
allocating its scarce spectrum among applicants. It is the
quintessential example of a structural regulation ‘‘involving
the ‘where’ and ‘when’ of broadcasting.’’ Ruggiero, 317 F.3d
at 243. The system is analogous to the cross-ownership rules
the Supreme Court subjected to minimal scrutiny in NCCB,
to the similar cross-ownership rules we subjected to rational
basis scrutiny in Fox Television Stations, and to the televi-
sion ownership rules we subjected to minimal scrutiny in
Sinclair Broadcasting. AFA, like several others before it,
see Fox Television Stations, 280 F.3d at 1045; Sinclair
Broadcasting Group, 284 F.3d at 168-69, implies that we
should discard the scarcity rationale as a relic of the past.
AFA Reply Br. at 8-10. We dismiss this argument, as it is
fundamental to the rule of law in our court system that ‘‘it is
not the province of this court to determine when a prior
decision of the Supreme Court has outlived its usefulness.’’
Fox Television Stations, 280 F.3d at 1046 (citing Agostini v.
Felton, 521 U.S. 203, 237 (1997)).
Like NCCB, Fox Television, and Sinclair Broadcasting,
the present scheme is ‘‘not content related.’’ NCCB, 436 U.S.
at 801; see also Sinclair Broad., 284 F.3d at 168. The FCC’s
stated purpose in promulgating the point system was, among
other things, to promote a diversity of views. The diversity
credit does that by advantaging applicants who do not already
own licenses in given geographical areas. The localism credit
supports the same goal by ensuring that applicants in many
different regions have a voice in selecting NCE programming.
The attribution rules advance the cause of localism by advan-
taging truly local stations over affiliates under the control of
centralized organizations. Finally, the state-wide educational
credit furthers diversity by advantaging educational organiza-
tions who might not otherwise have a voice on the radio, just
as having an NCE broadcasting spectrum at all diversifies
radio and television programming as a whole. Simply put,
‘‘[b]y placing a value upon diversity’’ the FCC ‘‘did not
necessarily TTT value one speaker, or one type of speech over
another; it merely expressed its intention that there continue
to be multiple speakers.’’ Time Warner Entm’t Co. v. United
States, 211 F.3d 1313, 1318 (D.C. Cir. 2000). For these
20
reasons, and for the reasons stated above in our discussion of
AFA’s statutory claims, the point system rationally advances
these goals, and thus passes rational basis scrutiny.
AFA argues that the point system is content-based, and
therefore is subject to strict scrutiny, in that it ‘‘reflects
favoritism,’’ AFA Br. at 20, for the secular viewpoints ex-
pressed by public radio and television networks over the
views broadcast by religious networks. We are somewhat
unclear on how AFA has inferred this nefarious motive from
the rule. Nothing on the face of the point system inherently
favors nonreligious speakers. Organizations are equally eligi-
ble for points whether or not they are religious. Religious
groups may be established local entities, may be diverse, and
may have superior technical capability. Religious schools, so
long as they have five campuses or serve at least 50 elementa-
ry or secondary schools, are eligible for the state-wide edu-
cational credit on the same footing as state or nonreligious
educational networks.
It is true, but irrelevant, that the affiliates of some sorts of
nonreligious organizations, like the NPR and PBS networks,
are more likely to get licenses than the religious affiliates of
centralized organizations like AFA. That preference results
only because such public affiliates are more decentralized,
and therefore (in the FCC’s view) will advance the content-
neutral goals identified by the FCC better than the affiliates
of centralized organizations like AFA will. As discussed,
although NPR and PBS distribute programming to their
affiliates, they do not own their affiliates, hold their licenses,
or otherwise direct the content their affiliates may broadcast.
The same is not true of AFA’s network. There is nothing
content-based about preferring decentralized broadcasters to
centralized ones, given the FCC’s motive. Because this case
involves no explicit content-based discrimination, AFA’s reli-
ance upon FCC v. League of Women Voters, 468 U.S. 364,
381-83 (1984), is misplaced. The point system here, ‘‘unlike
the ban on editorializing at issue in League of Women Voters,
is not a content-based regulation.’’ Fox Television Stations,
280 F.3d at 1046.
21
Nor is there any evidence from the justification the FCC
gave for this scheme that its ‘‘manifest purpose [was] to
regulate’’ religious speech ‘‘because of the message it con-
veys.’’ Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 645
(1994). As explained above, the FCC justified the factors the
system favors by reference to advancing the goal of diversity.
The closest AFA comes to identifying an explicit statement
by the Commission evincing an intent to harm religious
groups is the Commission’s stated desire to prevent ‘‘large
national chains’’ from crowding out small local educators.
Order ¶ 34. That justification, again, is perfectly consistent
with advancing the content-neutral goal of localism, and hence
diversity.
2. Free Exercise
We also reject AFA’s argument that the point system
unconstitutionally infringes upon the First Amendment right
to free exercise of religion. Citing Church of Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-39 (1993), AFA
argues that the system constitutes what the Supreme Court
has called an unconstitutional ‘‘religious gerrymander.’’ A
religious gerrymander is possible when
the circumference of legislation encircles a class so broad
that it can be fairly concluded that religious institutions
could be thought to fall within the natural perimeter.
Walz v. Tax Comm’n, 397 U.S. 664, 696 (1970) (Harlan, J.,
concurring). The unconstitutional gerrymander occurs when
the bounds of legislation, like those of a gerrymandered
political district, are artfully drawn to exclude the disfavored
category–in this case, religious institutions. Cf. Gomillion v.
Lightfoot, 364 U.S. 339, 341-42 (1960) (involving the gerry-
mander of city boundaries to exclude black voters). AFA’s
argument, while not clearly articulated, appears to be that the
point system, though facially neutral and justified by refer-
ence to benign goals, benefits secular networks like NPR over
religious ones to such an extreme degree that the inference of
religious discrimination is plain. We see no such inference.
22
Employment Division v. Smith, 494 U.S. 872, 879-80
(1990), makes clear that the general rule is that laws and
regulations that incidentally burden religion do not violate the
free exercise clause. Id. at 879-80. However, even facially
neutral laws and regulations violate the free exercise clause if
in practical effect they target religious faith or speech to an
extreme degree, and if those extreme burdens are not related
to the legitimate governmental interests served by the regula-
tion. Church of Lukumi, 508 U.S. at 534-39.
Church of Lukumi involved local ordinances that outlawed
the ritual slaughter of animals. 508 U.S. at 536-38. In
practical effect, the prohibitions fell ‘‘on Santeria adherents
but almost no others.’’ Id. at 536. The city defended the
ordinance on the ground that the prohibition advanced the
city’s legitimate interest in protecting public health and pre-
venting cruelty to animals. Id. at 538. The Court found that
the ordinances were woefully underinclusive to advance those
interests, id. at 538-40, 543-46, and inferred from this regula-
tory bluntness that the city’s motive in passing the ordinances
was to suppress religious belief, id. at 547.
The differential impact of the point system on AFA and
similar organizations’ religion is neither similarly severe and
targeted nor so unrelated to the FCC’s legitimate regulatory
interests as to be a religious gerrymander. Though the point
system’s focus on localism and diversity no doubt disadvan-
tages AFA and other religious organizations who happen to
be centralized, the rule on its face appears also to disadvan-
tage nonreligious centralized broadcasting networks. Simi-
larly, the state-wide network credit concededly disadvantages
AFA and religious educational organizations, but it also disad-
vantages nonreligious multi-state and regional school sys-
tems. It is just not true, therefore, that the burdens of the
point system fall on religious organizations ‘‘but almost no
others.’’ 508 U.S. at 536. This is true even if AFA is correct
that the point system prevents AFA from competing effec-
tively with state universities and school systems. In the
context of this facial challenge, we cannot say that it is clear
on the face of the rule that its burdens are so focused as to
burden virtually only religious speech.
23
Even setting aside that nonreligious organizations also face
burdens from the rule, the burden the point system foists on
religious organizations is relatively modest. There is nothing
inherently related to religion in the point system’s criteria.
The system favors decentralization and diversity. Although
it may be true that many religious NCE broadcasting net-
works are centralized, nothing inherent in their religious
character forces them to structure their networks in this way.
If AFA were to free its affiliates from its control, those
affiliates could more easily compete with NPR’s and PBS’s
affiliates under the system. A point system so easily turned
to the benefit of religious organizations cannot be a religious
gerrymander.
The point system, moreover, leaves ample alternative chan-
nels for religious speakers to let their voices be heard on the
NCE airwaves. The rule does not prevent religious organiza-
tions from offering religious programming to NPR and PBS
affiliates in competition with NPR and PBS. It does not
prevent religious people from speaking on NPR and PBS
affiliates, or prevent NPR and PBS from selling religious
programming to their affiliates. If public broadcasting affili-
ates choose to be secular, or find the programming of NPR
and PBS to be superior to AFA’s, that is not a feature
inherent in the point system; it is inherent, rather, in compe-
tition in the free market of ideas. Equally to the point, if
NPR and PBS affiliates have a comparative advantage over
AFA affiliates by virtue of being government funded, that is
the result of a political choice of how to allocate public money.
The advantage does not derive from the FCC’s rule. If those
funding choices make it difficult for AFA affiliates to compete
with NPR and PBS affiliates without AFA’s financial assis-
tance, the proper way to deal with that consequence of those
choices is through the political process through which those
choices were made.
Finally, turning to the last Lukumi factor, we find that the
FCC’s legitimate interests reasonably relate to the burden
the rule places on religious organizations. AFA claims that
the point system does not advance the goal of having diversi-
ty of views on the airwaves, because NPR and PBS affiliates
24
predictably will purchase national programming from NPR
and PBS. AFA misconceives the FCC’s interest. The inter-
est, as noted above, is in advancing diversity in the selection
of programming, whatever the source, not in having different
varieties of programming per se. That is why, as explained
above, the FCC rejected the proposal to award points for
local origination of programming. If NPR and PBS affiliates
were, for example, to begin purchasing programming primari-
ly from AFA and other centralized religious networks, the
rule would equally advance the FCC’s legitimate interest in
advancing diversity in the selection of programming. Again,
nothing in the rule requires NPR and PBS affiliates to select
programming from a uniform source. Any such uniformity
results instead from individual choice.
3. Equal Protection
AFA’s last constitutional argument is that we should apply
some form of ‘‘heightened’’ scrutiny to the point system under
the equal protection ‘‘component’’ of the Fifth Amendment’s
due process clause (or, alternatively, at the ‘‘intersection’’ of
the free speech clause and the equal protection ‘‘component’’
of the Fifth Amendment).
AFA cites primarily our decision in News America Pub-
lishing, Inc. v. FCC, 844 F.2d 800, 814 (D.C. Cir. 1988), which
applied heightened scrutiny to an act of Congress that singled
out ‘‘with the precision of a laser beam,’’ a corporation
controlled by Rupert Murdoch. Murdoch’s corporation had
applied for, and received, temporary waivers from the FCC’s
cross-ownership rules, so that the corporation could acquire
two TV licenses, one in Boston, and the other in New York.
Id. at 804. Subsequently, Congress passed a law that pre-
vented the FCC from extending any existing temporary
waivers; at the time, Murdoch’s corporation was the only
current beneficiary of any such temporary waivers. Id. at
814-15. The law, however, did not prevent the FCC from
granting new temporary waivers, or from extending those
new waiver grants. Because Murdoch’s corporation was the
only current possessor of a waiver, therefore, the burden of
25
this law fell only on his company. Id. This precision, we
reasoned, warranted heightened scrutiny.
The point system’s burden on AFA and similar religious
networks falls far short of the laser-like precision present in
News America that warranted heightened scrutiny. As we
explained above, the point system both burdens nonreligious
networks and benefits, both currently and potentially, reli-
gious networks. And also for the reasons stated above, the
point system is far from ‘‘astonishingly underinclusive,’’ News
America, 844 F.2d at 814, in advancing its legitimate pur-
poses. Nothing in the point system singles out religious
organizations, either expressly or in effect.
III. Conclusion
For the reasons expressed above, we deny the petitions for
review.