White Industries, Inc., Petitioner, v. Federal Aviation Administration, Respondent,andsouthwest Radio Enterprises, Inc., Intervenor/respondentandgolden East of Missouri, Inc., Intervenor/respondent, 692 F.2d 532 (8th Cir. 1982)

Before BRIGHT and ARNOLD, Circuit Judges, and MEREDITH,^*  Senior District Judge.

MEREDITH, Senior District Judge.

Petitioner White Industries, Inc. ("White") appeals a determination of the Federal Aviation Administration (FAA) that a proposed radio tower to be constructed near Bates City, Missouri posed "no hazard" to air traffic. Because the FAA did not make sufficient factual findings to support its determination, we remand for an evidentiary hearing.

On March 12, 1981, Southwest Radio Enterprises, Inc. ("Southwest") filed a notice of proposed construction with the FAA's central regional office in Kansas City, Missouri. See 14 CFR Secs. 77.11-.17. The notice informed the FAA of Southwest's desire to build a radio tower near Bates City, Missouri. Because the proposed tower constituted an "obstruction" as defined by the regulations, 14 CFR Sec. 77.23, the central regional office initiated an aeronautical study to determine whether it posed a hazard to air navigation.

On April 9, 1981, the FAA gave notice of the study to "interested persons" and provided for a thirty (30) day comment period. See 14 CFR Sec. 77.35. On June 12, 1981, the central regional office issued a determination that the proposed radio tower would pose "no hazard" to air navigation.¹ 

The FAA did not notify petitioner White of the aeronautical study or comment period because White was not listed on the FAA's mailing lists and had not formally notified the FAA that it was constructing an airport in the vicinity.²  The FAA did receive actual notice of the airport, however, on April 8, 1981.

On June 12, 1981, the FAA received its first formal notice of White's plans to construct an airport.³  Also on that date, White submitted its comments concerning the proposed radio tower. White's comments and the existence of its airport were not considered by the FAA in making its no hazard determination.

Petitioner subsequently filed a petition for agency review of that determination. The Acting Director, Air Traffic Service, granted review and, on November 27, 1981, affirmed the no hazard determination. Petitioner now seeks review in this Court pursuant to section 1006 of the Federal Aviation Act, 49 U.S.C. § 1486.

Before examining the substantive issues raised in this appeal, we must determine the appropriate standard of review. The judicial review provision of the Federal Aviation Act provides that all FAA findings of fact are to be reviewed by a standard of "substantial evidence." 49 U.S.C. § 1486(e). However, the agency's interpretation of its own regulations, although subject to deference, is a question of law to be decided by the court. See, e.g., Hart v. McLucas, 535 F.2d 516, 519-20 (9th Cir. 1976); Rucker v. Wabash R.R., 418 F.2d 146, 149 (7th Cir. 1969).

The FAA's decision to exclude White's comments and the existence of its airport from consideration was premised upon factual conclusions as well as its interpretation of the regulations. Our review of the issues will reflect both standards of review accordingly.

Petitioner challenges the FAA's no hazard determination on the ground that it failed to consider its comments or the existence of its airport in making that determination.⁴  It is not disputed that the FAA failed to consider the White airport in conducting its aeronautical study. The FAA contends, however, that it was required to consider only those airports meeting the criteria set forth in 14 CFR Sec. 77.21(c). That section requires the FAA to consider the effect of proposed construction upon any planned or proposed public use airport "that is the subject of a notice or proposal on file with the FAA." Id. The agency argues that White's airport did not meet these criteria because, as of March 12, 1981,⁵  petitioner's airport did not exist; it was not planned for public use; and the airport was not "the subject of a notice or proposal on file with the FAA."

The evidence bearing on the issues of whether the airport was, as of March 12, 1981, planned, proposed, under construction or available for public use was conflicting and disputed. The agency did not consider the conflicting evidence or attempt to resolve the issues. The record is simply not supported by adequate findings of fact. Therefore, the agency's decision to exclude White's comments and airport from consideration, on these grounds, is not supported by substantial evidence.

Finally, the FAA argues that petitioner's airport was not "the subject of a notice or proposal on file with the FAA" as defined by 14 CFR Sec. 77.21(c). It is undisputed that the central regional office received actual notice of a proposed airport on April 8, 1981,⁶  one day before that office sent notice of the comment period to all "known" interested persons. Moreover, petitioner contends that the agency promised it that it would notify petitioner of the aeronautical study and provide it with an opportunity to comment.⁷  This it failed to do.

The agency argues, however, that even if it did receive actual notice that petitioner was constructing a public use airport in the vicinity of the proposed tower, it was not required to consider petitioner's comments. It arrives at this conclusion by interpreting 14 CFR Sec. 77.21(c) to embrace only those airports which were, as of March 12, 1981, the subject of formal notification on file with the FAA.⁸  It concludes that actual, informal notice of a proposed airport will not satisfy the requirements of the regulation.

The agency's interpretation of the regulation is unduly technical and restrictive and is contrary to the policy underlying the statute and regulations. The Federal Aviation Act authorizes the Administrator to develop regulations to insure the safe and efficient use of airspace, 49 U.S.C. § 1348, and to provide adequate public notice of any proposed structure where notice will promote air safety. 49 U.S.C. § 1501. The regulations at issue were promulgated to effectuate this congressional mandate.

The FAA's interpretation of the regulations would frustrate this statutory policy. In the present case, the agency failed to notify a known interested person of construction affecting air safety or consider evidence which would enable it to fulfill its duty to promote the safe and efficient use of airspace. The FAA has acknowledged that the radio tower and airport cannot co-exist without posing a hazard to air navigation.⁹  Moreover, the airport may, at the present time, be fully operational. Not only has construction not yet begun on the radio tower, but an alternative site for the tower has been approved by the FAA as posing "no hazard" to air navigation.¹⁰ 

We conclude that the regulations must be interpreted to require the FAA to provide interested persons with an opportunity to comment upon proposed construction where notice would promote air safety and efficiency and to consider the effect of the construction upon planned airports of which the FAA has actual notice. If, on April 8, 1981, the FAA received actual notice that petitioner was constructing an airport, available for public use, it was required to notify petitioner of the aeronautical study and to consider its comments.

The FAA made no findings of fact as to whether it received actual notice of a proposed, public use airport and whether it promised to provide petitioner, as an interested person, with the opportunity to comment. Accordingly, we remand this case to the FAA for an evidentiary hearing to rule on the factual issues raised by the petitioner, in light of the correct legal standards.