Nueva Esperanza, Inc. v. FCC.

• Author: Thompson, Brooke

863 F.3D 854 (D.C. CIR. 2017)

1. INTRODUCTION

   In Nueva Esperanza, Inc. v. FCC, (126) the United States Court of Appeals for the District of Columbia Circuit affirmed the Commission's decision to dismiss the Appellant's application to construct and operate a LPFM radio station in Philadelphia, PA. The Court held the Appellant forfeited its argument regarding fair notice because it incorrectly interpreted a blog post authored by the Chief of the Media Bureau, which was intended to provide guidance to applicants,.

2. BACKGROUND

   In 2000, the Federal Communications Commission introduced the Low Power FM Radio (LPFM) service designed "to create opportunities for new voices on the air waves and to allow local groups, including schools, churches and other community-based organizations, to provide programming responsive to local community needs and interests." (127) Licenses for LPFM stations are limited to "noncommercial, educational entities and public safety entities." (128)

   To resolve "mutually exclusive" LPFM applications by commercial applicants, the Commission is required to use a competitive bidding system. (129) However, the Commission instead uses a noncommercial method of resolving mutually exclusive LPFM applications through a point system. (130) Under that system, the Commission awards an applicant one point for each of six characteristics, such as having an "established community presence of at least two years." (131)

   During the October 2013 filing period, several community organizations applied to construct an LPFM station in Philadelphia, PA. (132) Among these organizations was the Appellant, Nueva Esperanza, Inc., a nonprofit organization based in Philadelphia. (133) Eleven of those applications, including the Appellant's, were deemed mutually exclusive. (134) The Appellant, along with six other applicants were awarded five points each, thus creating a seven-way tie. To break the tie, two or more of the tied applicants may propose to share use of the LPFM station by filing a time-share proposal. (135) The point totals of those applicants will be aggregated if they submit an acceptable time-share proposal. (136)

   Four of the tied applicants, not including the Appellant, received twenty points by filing a joint timeshare application. (137) This group was comprised of G-Town Radio, Germantown United Community Development Corp., Germantown Life Enrichment Center, and South Philadelphia Rainbow Committee Community Center, Inc. ("Timeshare Applicants"). (138) The Appellant received a total of ten points by filing a timeshare application with just one other applicant, the Social Justice Law Project of the Philadelphia NAACP, Inc. (139) Because they had a higher point total, the Timeshare Applicants were awarded the LPFM station license. (140)

   Just two months before the Timeshare Applicants filed their joint agreement, the Appellant petitioned the Commission to deny several applications for violating the...