## Facts

- The FCC adopted “FM Processing Rules” in 1985, including “hard look” rules requiring applications filed within a fixed window to be substantially complete and providing for summary dismissal of applications containing incorrect or inconsistent technical data, without an opportunity to amend.
- JEM Broadcasting Company, Inc. filed an application in July 1988 for a new FM broadcast license in Bella Vista, Arkansas.
- The FCC initially accepted the application for filing but later found inconsistent geographic coordinates for JEM’s proposed transmitter site that could not be reconciled from the application.
- Applying the hard-look rules, the FCC dismissed JEM’s application as unacceptable for tender and refused to permit corrective amendment.
- The FCC denied JEM’s request for administrative reconsideration.
- JEM petitioned for review in the D.C. Circuit, challenging both the validity of the hard-look rules and their use to dismiss its application without a hearing or amendment opportunity; a competing applicant intervened.

## Issues

1. Whether a challenge to the procedural validity of the FCC’s hard-look rules (lack of APA notice-and-comment) was barred by the Hobbs Act’s 60-day deadline for seeking judicial review of final agency orders.
2. Whether the hard-look rules were exempt from APA notice-and-comment because they were “rules of agency organization, procedure, or practice,” rather than substantive rules.
3. Whether dismissal of an incomplete broadcast license application triggered hearing rights under §§ 309(d)–(e) of the Communications Act.
4. Whether summary dismissal without an amendment opportunity and without a hearing violated due process.

## Decision

- The court affirmed the FCC’s dismissal and denial of reconsideration.
- The court held JEM’s APA notice-and-comment attack on the hard-look rules was untimely under the Hobbs Act’s 60-day jurisdictional review period.
- The court held that, in any event, the hard-look rules were procedural processing rules exempt from APA § 553 notice-and-comment requirements.
- The court held JEM was not entitled to a Communications Act evidentiary hearing because its facially defective application failed the threshold completeness requirements.
- The court held due process was not violated because applicants had clear advance notice of the hard-look scheme and the rules permissibly conditioned processing on submission of a compliant application.

## Legal Principles

- Under the Hobbs Act, challenges to an agency rule’s procedural validity must be brought within the statute’s 60-day review period; the deadline cannot be avoided by raising the challenge in a later proceeding.
- Agency rules that govern filing windows, completeness screening, and summary rejection of patently defective submissions may qualify as “rules of agency organization, procedure, or practice” exempt from APA notice-and-comment when they do not alter substantive decision criteria.
- Statutory hearing provisions for broadcast licensing do not require an evidentiary hearing for applications dismissed at the threshold for failure to satisfy properly promulgated completeness and tender requirements.
- Due process generally is satisfied when a regulatory agency provides clear prior notice of procedural filing prerequisites and denies processing based on an applicant’s noncompliance with those prerequisites, absent a vested entitlement to the license.

## Conclusion

The D.C. Circuit upheld the FCC’s hard-look processing regime and JEM’s summary dismissal, holding that collateral APA procedural challenges were time-barred, the rules were procedural and notice-and-comment exempt, and neither the Communications Act nor due process required a hearing or amendment opportunity for an application failing threshold completeness requirements.


JEM Broad. Co. v. FCC, 22 F.3d 320 (D.C. Cir. 1994)