Biltmore Forest Broad. FM, Inc. v. United States - Opposition

No. 09-88

In the Supreme Court of the United States

BILTMORE FOREST BROADCASTING FM, INC.,

PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
PATRICIA M. MCCARTHY
ANUJ VOHRA
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner's challenge to the Federal Com munications Commission's award of a radio broadcasting license fell within the exclusive jurisdiction of the Dis trict of Columbia Circuit under 47 U.S.C. 402(b).

In the Supreme Court of the United States

No. 09-88

BILTMORE FOREST BROADCASTING FM, INC.,

PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 555 F.3d 1375. The opinion of the Court of Federal Claims (Pet. App. 19a-57a) is reported at 80 Fed. Cl. 322.

JURISDICTION

The judgment of the court of appeals was entered on February 10, 2009. A petition for rehearing was denied on April 20, 2009 (Pet. App. 58a-60a). The petition for a writ of certiorari was filed on July 20, 2009 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1999, the Federal Communications Commis sion (FCC or Commission) conducted an auction for a license to construct and operate a radio station in Bilt more Forest, North Carolina. Pet. App. 2a, 20a-21a. Li berty Productions (Liberty) was the highest bidder for the license; petitioner was the second-highest bidder. Id. at 3a-4a. To enforce FCC rules relating to diversifi cation of ownership, prospective bidders were required to submit a "family media certification" to allow the FCC to determine whether media interests owned by family members of bidders were "subject to common influence or control." Id. at 2a-3a. Petitioner submitted the requisite family media certification before the com pletion of the auction, but Liberty did not submit its cer tification until after the auction was over. Id. at 2a-4a.

Petitioner filed an administrative protest, arguing that Liberty should have been disqualified because of its failure to timely file a family media certification-a fail ure that, according to petitioner, could not be cured once the auction had been completed. See In re Liberty Prods., L.P., 16 F.C.C.R. 12,061, 12,068 ¶¶ 14-15 (2001). The FCC rejected that argument, concluding that Lib erty's untimely filing did not disqualify it from the auc tion, and the Commission granted the license to Liberty. Id. at 12,070-12,071 ¶ 19; see Pet. App. 5a.

Petitioner appealed the FCC's decision to the D.C. Circuit, but that court affirmed the FCC's ruling, hold ing that the failure of a bidder to timely file a family media certification did not require disqualification. Bilt more Forest Broad. FM, Inc. v. FCC, 321 F.3d 155, 160- 161 (D.C. Cir. 2003). This Court denied certiorari. 540 U.S. 981 (2003).

2. Petitioner then filed a complaint in the Court of Federal Claims, alleging that the FCC had breached an implied-in-fact contract with it by awarding the Bilt more Forest license to Liberty in violation of the pub lished terms of the auction. Pet. App. 19a-20a. The complaint restated verbatim the first issue presented in petitioner's brief before the D.C. Circuit. Id. at 23a.

The Court of Federal Claims granted the govern ment's motion to dismiss. Pet. App. 19a-57a. The court held that petitioner's claims were encompassed by 47 U.S.C. 402(b), which gives the D.C. Circuit jurisdiction to review challenges to FCC licensing decisions. Pet. App. 38a. The court further explained that "the D.C. Circuit's jurisdiction over claims that fall within subsec tion 402(b) is exclusive." Id. at 36a (quoting Folden v. United States, 379 F.3d 1344, 1356-1357 (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005)). The Court of Federal Claims concluded that petitioner's complaint "directly contest[ed] the FCC's decision to award the license to Liberty * * * thus squarely falling into sec tion 402(b)(6)," and that the court therefore lacked subject-matter jurisdiction to consider petitioner's claims. Id. at 38a.

3. The court of appeals affirmed. Pet. App. 1a-18a. The court assumed, without deciding, "that an FCC li cense auction results in a contract between the FCC and the high bidder." Id. at 10a. Nevertheless, the court explained, the Court of Federal Claims lacks jurisdiction over a claim based on such a contract because under 47 U.S.C. 402(b), "the District of Columbia Circuit not only has exclusive jurisdiction to review the grant or denial of FCC licenses, but also has exclusive jurisdic tion to adjudicate the underlying issue of FCC rules compliance necessary to the licensing decision." Pet. App. 12a. The court also noted that petitioner's chal lenge to the FCC's interpretation of its rules had al ready been rejected by the D.C. Circuit, and it observed that petitioner "is essentially asking us to re-adjudicate this question and to create inconsistent results for the same question in this court and the District of Columbia Circuit." Id. at 14a.

ARGUMENT

Petitioner contends (Pet. 5-14) that the Court of Fed eral Claims has jurisdiction to consider contract and takings claims premised upon the FCC's alleged viola tion of Commission rules in conducting an auction to award a broadcast license. The court of appeals cor rectly rejected that argument, explaining that 47 U.S.C. 402(b) grants the D.C. Circuit exclusive jurisdiction over all challenges to FCC licensing decisions. The decision of the court of appeals does not conflict with any deci sion of this Court or any other court of appeals. Further review is not warranted.

1. Section 402(b) gives the D.C. Circuit jurisdiction over appeals "[b]y any applicant for a * * * station license, whose application is denied by the" FCC, as well as "[b]y any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying" such an application. The court of appeals correctly held that Section 402(b)'s grant of jurisdiction is exclusive. Pet. App. 11a; Folden v. United States, 379 F.3d 1344, 1356-1357 (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005). The D.C. Cir cuit has reached the same conclusion, see Sprint Commc'ns Co. v. FCC, 274 F.3d 549, 552 (2001); City of Rochester v. Bond, 603 F.2d 927, 934-935 (1979); as has every other court of appeals to consider the question, see In re FCC, 217 F.3d 125, 140 (2d Cir.), cert. denied, 533 U.S. 1029 (2000); La Voz Radio De La Communidad v. FCC, 223 F.3d 313, 318 (6th Cir. 2000); Luz v. FCC, 88 F. Supp. 2d 372, 375 (E.D. Pa. 1999), aff'd, 213 F.3d 629 (3d Cir. 2000); Miller v. FCC, 66 F.3d 1140, 1144 n.3 (11th Cir. 1995), cert. denied, 517 U.S. 1155 (1996); Cook, Inc. v. United States, 394 F.2d 84, 86 (7th Cir. 1968).

Those holdings are consistent with this Court's inter pretation of a prior version of Section 402(b), see United States v. Storer Broad. Co., 351 U.S. 192, 208 (1956), and with this Court's interpretation of 47 U.S.C. 402(a), which provides for court of appeals review of all other FCC orders, see FCC v. ITT World Commc'ns, Inc., 466 U.S. 463, 468 (1984). They are also consistent with the legislative history of Section 402(b). See S. Rep. No. 44, 82d Cong., 1st Sess. 11 (1951) ("The language of [Section 402(b)] * * * make[s] it clear that judicial review of all cases involving the exercise of the Commission's radio licensing power is limited to [the D.C. Circuit].").

The decision below accords with the general principle that Congress's creation of a comprehensive statutory scheme, under which certain types of claims are to be litigated in a specific forum, will ordinarily be under stood to withdraw the jurisdiction of the Court of Fed eral Claims over those claims. See, e.g., United States v. Erika, Inc., 456 U.S. 201, 208 (1982) (litigation of Medicare reimbursements is governed by the "precisely drawn provisions" of the Medicare statute rather than the Tucker Act, 28 U.S.C. 1491 et seq.); Brown v. GSA, 425 U.S. 820, 828 n.10, 834-835 (1976) (Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., provides exclusive rem edy against the United States for racial discrimination in employment, displacing the Tucker Act); Matson Navigation Co. v. United States, 284 U.S. 352 (1932) (Suits in Admiralty Act of 1920, 46 U.S.C. 30901 et seq., impliedly withdrew Tucker Act jurisdiction). In light of the specific and comprehensive scheme for administra tive and judicial review provided for by Congress in the Communications Act of 1934, 47 U.S.C. 151 et seq., the court of appeals correctly concluded that petitioner's claims were within the exclusive jurisdiction of the D.C. Circuit.

2. Petitioner argues (Pet. 10) that the decision of the court of appeals conflicts with various D.C. Circuit deci sions that "ha[ve] recognized that federal agencies' li censing decisions may be lawful as administrative mat ters while at the same time implicating claims against the Federal government for money damages." Petition er's claim of a circuit conflict is incorrect. Several of the cases petitioner cites did not involve the FCC. See Wis consin Valley Improvement Co. v. FERC, 236 F.3d 738 (D.C. Cir. 2001); Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002). The other cases involved challenges to FCC rulemakings (review able under Section 402(a)), not to licensing decisions (reviewable under Section 402(b)). Although the D.C. Circuit observed that the petitioners in each case were free to present Tucker Act claims to the Court of Fed eral Claims, those statements shed no light on the inter pretation of Section 402(b), which was not at issue. See Northpoint Tech., Ltd. v. FCC, 414 F.3d 61, 64, 76 (D.C. Cir. 2005); Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441, 1443, 1445 n.1 (D.C. Cir. 1994); Building Owners & Mgrs. Ass'n Int'l v. FCC, 254 F.3d 89, 91, 100-101 (D.C. Cir. 2001). Petitioner's suggestion (Pet. 12) that "the D.C. Circuit does not read the Communications Act as divesting the Claims Court of jurisdiction over license- related takings and contracts claims" is therefore un founded.

3. Petitioner also contends (Pet. 13-14) that the D.C. Circuit's exclusive jurisdiction over FCC licensing deci sions provides the FCC with a "unique immunity" from contract and takings claims, and that Congress could not have intended to create such a "jurisdictional void." That argument lacks merit.

Despite the characterization of its action as a breach by the FCC of an implied-in-fact contract-or as a tak ing of property without compensation-that would oth erwise be cognizable under the Tucker Act, petitioner's specific argument in the Court of Federal Claims was the same as the argument it had made before the D.C. Circuit: that the FCC had failed to comply with its own rules regarding the requirement that bidders file a fam ily media certification. As the Court of Federal Claims noted in dismissing petitioner's complaint, petitioner "argued to the D.C. Circuit, as it does here, that the family media certification was required and because it was not timely filed, Liberty's license application should not have been granted. The difference between the two cases is the remedy sought." Pet. App. 25a. Petitioner does not dispute (Pet. 3) that it challenged, albeit unsuc cessfully, the FCC's alleged violation of its auction rules before the D.C. Circuit. Petitioner cannot reasonably argue that it was precluded from vindicating its ostensi ble contract or property rights, since the exact argu ments it wishes to raise have already been adjudicated in the court of appropriate jurisdiction. See id. at 14a.

In any event, petitioner has not shown that an FCC violation of its own auction rules would have constituted a breach of contract or a taking of property. Petitioner was not the high bidder in the auction for the Biltmore Forest license, and it has identified no authority sug gesting that an FCC licensing auction results in a con tract between the FCC and unsuccessful bidders. Nor has petitioner shown that it had any property interest in the outcome of the auction; indeed, petitioner conceded in the court of appeals that the complaint in this case does not present a takings claim. Pet. App. 16a-17a. An FCC license does not confer property rights on the li cense holder. See 47 U.S.C. 301; FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940). It follows a fortiori that an unsuccessful bidder for such a license has no property interest in the auction.

4. Even if the question presented otherwise war ranted this Court's review, this case would be a poor ve hicle for considering it. After concluding that it lacked subject-matter jurisdiction, the Court of Federal Claims went on to hold, in the alternative, that "summary dis missal as a matter of law is appropriate" because peti tioner was effectively attempting to advance a "garden variety" bid protest that could succeed only if the FCC's actions were arbitrary and capricious. Pet. App. 39a, 47a. The D.C. Circuit had already determined that the agency's actions were not arbitrary and capricious, and the Court of Federal Claims held that petitioner was precluded from relitigating that issue. Id. at 47a-51a. Although the court of appeals had no occasion to con sider that holding, id. at 17a n.4, it is an independent ground that would prevent petitioner from obtaining relief in this case even if it were to prevail on its juris dictional argument.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
JEANNE E. DAVIDSON
PATRICIA M. MCCARTHY
ANUJ VOHRA
Attorneys

SEPTEMBER 2009