22 F.3d 320 (D.C. Cir. 1994)
JEM submitted a license for a new radio station in ARK. The FCC dismissed JEM’s application because it had inconsistent geographic coordinates and could not resolve the inconsistency. The FCC established “hard look” application procedures that would dismiss incomplete applications and established a short window for all application requests. JEM argues that the “hard look” rules violate the APA requirement that public notice and comment occur before the promulgation of a rule.
Whether “hard look” rule promulgated by the FCC constitutes a procedural exception to the APA, exempting the FCC from having to engage in public notice and comment requirements.
Yes, there is a procedural exception. The thrust of the exception “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 court sought to examine if the substantive rights are impacted in a “sufficiently grave” manner.
The court held that the hard look rules did not change the “substantive standards” by which the FCC evaluates applications. It merely accelerated the timeframe. The idea that incomplete applicants be sacrificed for bureaucratic efficiency is not taken well by the court. If the procedural exception were to encompass measures taken to efficiently process applications, the exceptions couldn’t even cover general agency housekeeping rules.