United States Court of Appeals, District of Columbia Circuit
Edward R. Stolz, II, d/b/a Royce International Broadcasting Company, Appellant
Federal Communications Commission, Appellee Entercom Communications Corp. and Entercom License, LLC, Intervenors
September 11, 2017
Appeal From Orders of the Federal Communications Commission
J. Kelly argued the cause and filed the briefs for appellant.
William J. Scher, Counsel, Federal Communications Commission,
argued the cause for appellee. With him on the brief were
Howard J. Symons, General Counsel at the time the brief was
filed, David M. Gossett, Deputy General Counsel, and Richard
K. Welch, Deputy Associate General Counsel. Jacob M. Lewis,
Associate General Counsel, entered an appearance.
Michael E. Dash, Jr., Carrie A. Ward, Dennis P. Corbett, and
Jessica DeSimone Gyllstrom were on the brief for intervenors
Entercom Communications Corp. and Entercom License, LLC, in
support of appellee.
Before: Millett, Circuit Judge, and Edwards and Williams,
Senior Circuit Judges.
Millett, Circuit Judge.
Stolz agreed to sell a radio station he owned to Entercom
Communications Corporation and, upon approval by the Federal
Communications Commission ("FCC"), to transfer the
station's broadcast license to Entercom. Implementation
of the agreement soon broke down, and Stolz and Entercom have
spent the ensuing two decades clashing before the FCC and
state and federal courts. This long-running dispute should
draw closer to a conclusion today as we deny Stolz's
appeal and dismiss as moot his central claim challenging
Entercom's legal eligibility to acquire the station.
invested the FCC with exclusive authority to grant, deny, and
approve the transfer of broadcast licenses to operate radio
stations. 47 U.S.C. §§ 301, 303, 307-310. As a
result, when a broadcast station owner wants to transfer
ownership of a station to a third party, the FCC must approve
the assignment of the station's broadcast license to the
new owner. Id. § 310(d). The FCC may approve
assignments only "upon finding * * * that the public
interest, convenience, and necessity will be served
thereby." 47 U.S.C. § 310(d). That public interest
includes "promoting diversity of program and service
viewpoints" and "preventing undue concentration of
economic power." FCC v. National Citizens Committee
for Broadcasting, 436 U.S. 775, 780 (1978).
end, the FCC limits the number of radio stations that a
single entity can own within a local market. 47 C.F.R. §
73.3555(a). As relevant here, in a market with 45 or more
radio stations, a single entity can only be licensed to
operate up to "8 commercial radio stations in total and
not more than 5 commercial stations in the same service (AM
or FM)." Id. § 73.3555(a)(1)(i). In a
market that contains 30 to 44 radio stations, a single entity
may not hold licenses for "more than 7 commercial radio
stations in total and not more than 4 commercial stations in
the same service (AM or FM)." Id. §
2002, the FCC completed a comprehensive review of its media
ownership rules. See In the Matter of 2002 Biennial
Regulatory Review, Report and Order, 18 FCC Rcd. 13620 (2003)
("2002 Order"). Among other things, the
2002 Order retained the FCC's prior numerical
limits on radio station ownership, but changed how the FCC
would determine the size of a local market, and thus what
ownership limits would apply to a given entity within that
market. Id. at 13724 ¶ 273-274. Those same
rules also apply to the assignment or transfer of broadcast
licenses. Id. at 13724 ¶ 273 n.572.
2002 Order included a grandfathering provision to
prevent existing license holders from having to "divest
their current interests in stations * * * to come into
compliance with the new ownership rules." 18 FCC Rcd. at
13808 ¶ 484. The grandfathering provision also
established "processing guidelines" to "govern
pending and new commercial broadcast applications for the
assignment or transfer" of radio licenses "as of
the adoption date of this Order." Id.
at 13813 ¶ 498. Pending assignment applications that had
not yet been "act[ed] on" by the "Commission
prior to the adoption ...