Jem Broadcasting Company, Inc. v. Fcc

22 F.3d 320 (D.C. Cir. 1994)

Facts

JEM (P) submitted a license application for a new FM station. The FCC (D) determined that JEM had provided inconsistent geographic coordinates for its proposed transmitter site. D acting pursuant to its 'hard look' processing rules, dismissed P's application without providing P an opportunity to correct its error. P contends that the so-called 'hard look' rules cannot be applied against it because the rules were promulgated without notice and comment in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 553. The FCC allotted 689 new commercial FM channels and adopted stringent application processing rules designed to streamline the agency's review process and to weed out hastily prepared, incomplete applications. Applications filed within the window period would be evaluated for 'substantial completeness'; those meeting this standard would be accepted for tender and placed on publicly released Notices of Tenderability. Following release of the public notice, applicants were allowed thirty days in which to amend or perfect their applications 'at will and as a matter of right.' Applications that did not include the prescribed information by the close of the window were considered 'unacceptable for tender' and were returned without opportunity for filing a curative amendment. D warned applicants of the consequences of failing to provide the prescribed information. P's proposed transmitter site, 36 13' 10', were inconsistent with the site marked on P's map, which, the staff determined, was 36 15' 10'. D was unable to resolve the inconsistency from the face of D's application, and concluded that the discrepancy made it 'impossible to determine the veracity of the site availability certification, the environmental impact statement, or the information supplied for FAA approval. P petitioned for reconsideration and D refused. P sued to declare the hard look regulations void in that the hard look rule deprived applicants of their substantive right to correct errors and made a rule that erroneous applications should be sacrificed for efficiency and hence were not procedural.