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Jem Broad. Co. v. FCC - 306 U.S. App. D.C. 11, 22 F.3d 320 (1994)


The critical feature of the procedural exception set forth in the Administrative Procedure Act (APA), 5 U.S.C.S. § 553(b)(A), is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency. The issue is one of degree and the reviewing court's task is to identify which substantive effects are sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA. 


In July 1988, petitioner JEM Broadcasting Company, Inc. (JEM) submitted a license application for a new FM station in Bella Vista, Arkansas. The Federal Communications Commission (FCC) accepted JEM's application for filing, but determined upon further review that JEM had provided inconsistent geographic coordinates for its proposed transmitter site. Unable to resolve the inconsistency from the application papers, the FCC, acting pursuant to its "hard look" processing rules, dismissed JEM's application without providing JEM an opportunity to correct its error.

JEM challenged the FCC's summary dismissal of its application on several grounds. First, JEM contended 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. § 553 (1988) (APA). Second, JEM asserted that it was entitled to a hearing on its application under the Communications Act of 1934, 47 U.S.C. §§ 309(d)-(e) (1988), and that the summary dismissal deprived it of due process under the Fifth Amendment.


Can the "hard look" rules be applied against JEM even if the rules were promulgated without notice and comment?




The court rejected JEM’s claims. According to the court, JEM’s challenge to the "hard look" rules was untimely under the Hobbs Act, 28 U.S.C.S. § 2344, and, in any event, the "hard look" rules were procedural in nature and were exempt from the general notice and comment requirements of § 533 of the APA. Also, the FCC was not required to hold a hearing before dismissing JEM’s application, which failed to comply with the FCC's rules. The court found that JEM had clear and explicit notice of the consequences of failing to include the specified data in its application.

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