Tele-media Corporation, Tele-media Company of Key West, Appellants, v. Federal Communications Commission, Appellee,board of County Commissioners, Monroe County, Florida,american Broadcasting Companies, Inc., Intervenors, 697 F.2d 402 (D.C. Cir. 1983)

Petitioners Tele-Media Corporation¹  and Tele-Media Company of Key West²  ("Tele-Media" or "company") seek review of a decision of the Federal Communications Commission ("FCC" or "Commission") dismissing their petitions to deny the applications for translator station construction permits filed by the Board of County Commissioners of Monroe County, Florida ("County").

In January, 1977, the County submitted applications to the FCC to construct and operate a number of UHF television translators in order to rebroadcast the signals of five Miami, Florida, television stations. Tele-Media asked the Commission to deny the County's applications outright or to designate them for an evidentiary hearing pursuant to section 309(e) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(e). Tele-Media contended that the FCC was required to hold such a hearing because Tele-Media, an existing cable operator in the area, had provided substantial evidence that the licensing of the County's translator system would cause economic injury to the company and that injury would redound to the public detriment. The company also argued that the County had not obtained the retransmission broadcast consent required by 47 U.S.C. § 325(a), lacked the funds required to construct and operate the proposed system, and had not shown a need for the translator project. Finally, the company argued that the applications should not be acted upon until the conclusion of a pending FCC rulemaking proceeding.³  Without conducting an evidentiary hearing, the FCC unconditionally granted the County's applications. Board of County Commissioners, Monroe County, Florida, 72 F.C.C.2d 683 (1979). Because we find that the company has raised no specific and material questions of fact that would warrant remand for the requested hearing, and because we find that the Commission correctly concluded that grant of the County's applications is in the public interest, we affirm the Commission's order in all respects.

* Monroe County, Florida, is located at the southern tip of the state, and the inhabited portion consists almost entirely of the Florida Keys, a series of small islands stretching from the southern tip of mainland Florida southward for more than 100 miles into the Gulf of Mexico. There are no broadcast television stations presently licensed to any community in the County. The nearest broadcast market is Miami, Florida. The Keys are 40 miles from Miami at their nearest point and some 150 miles at their farthest point. Because of their physical remoteness from Miami,⁴  the Keys have never had satisfactory off-the-air television reception.⁵ 

This circumstance led the State of Florida and the County to grant a franchise in 1965 to a private cable television (CATV) company, Cable-Vision, Inc., to furnish cable television service to all the Keys.⁶  Under the terms of the franchise, Cable-Vision was granted an exclusive, 30-year right to furnish cable service to the entire county. J.A. 292. Cable-Vision, however, did not embark on an ambitious plan of expansion. Although it was authorized to serve the entire county, it only provided service to Key West and to the Marathon area in the central portion of the Keys. The remainder of the county was left without any service. Moreover, the CATV system only carried the three Miami national network stations.⁷  Id.

The 30-year exclusivity provision effectively barred the County from developing improved service by franchising a competing CATV company. Accordingly, in response to strong public demand, the elected Board of County Commissioners in 1973 unanimously adopted an ordinance authorizing applications to the FCC for UHF television translator stations to be operated by the County. J.A. 292-93. A television translator is a broadcast station, operating at relatively low power, that receives a television signal from a distant location on its original broadcast channel, amplifies it, and retransmits it to the general public on another channel.⁸  The ordinance recited that the purpose of the translator system was to rectify "the unsatisfactory conditions existing in the reception of direct television signals now available to the public in [the] County."⁹  J.A. 386.

The filing of the translator applications, however, was delayed because the County was forced into litigation by Cable-Vision's challenge to the County's right to operate the proposed translators. J.A. 293.¹⁰  In 1976, while that litigation was pending, the cable system was sold to Tele-Media Corporation.¹¹  Id. At that time, the CATV system served only two communities and had a five-channel capacity. J.A. 164. Tele-Media commenced expansion of its system, which included the construction of new cable plants in Key Largo and Matecumbe and a twenty-channel system with two-way capacity in Big Pine.¹²  J.A. 164-65.

On January 13, 1977, the County filed with the Commission its applications for construction permits for the translators.¹³  Petitions to deny the applications were filed by Tele-Media, raising five substantive objections to the proposal. It argued that these objections required the Commission to deny the applications outright or to designate them for hearing pursuant to section 309(e) of the Communications Act, 47 U.S.C. § 309(e). J.A. 81-161, 162-283.

First, it asserted that the competition offered by the County's translators would result in the elimination of local programming originated by Tele-Media and would ultimately bankrupt the CATV system.¹⁴  Tele-Media argued that our decision in Carroll Broadcasting Co. v. FCC, 258 F.2d 440 (D.C. Cir. 1958), compelled the FCC to hold an evidentiary hearing in this case. In Carroll, the court's focus was directed toward projected competition between an existing broadcast licensee and an applicant for a new broadcast station. We were concerned about protecting the public interest in those instances where an additional broadcast station in the market would have such a severe economic impact on an existing broadcast station as to compel it to reduce or discontinue its public service programming, programming that would not be replaced by the new entrant. The court ruled that "when an existing licensee offers to prove that the economic effect of another station would be detrimental to the public interest, the Commission should afford an opportunity for presentation of such proof and, if the evidence is substantial ..., should make a finding or findings." 258 F.2d at 443. While Tele-Media recognized that the Carroll decision involved competition between an existing broadcasting station and a potential broadcast licensee, J.A. 200, it asserted that the doctrine should apply to existing cable systems threatened by broadcasting services, J.A. 201. Because the company contended that it had "more than [met] the requisite Carroll tests," J.A. 205, it claimed that a hearing on the Carroll issue was required.

Second, the company asserted that the County had not obtained from the five Miami stations adequate consent to rebroadcast their signals as required by section 325(a) of the Communications Act, 47 U.S.C. § 325(a). J.A. 84. Tele-Media argued that the language of the statute, as interpreted by the Commission and the courts, required program-by-program consent of each licensee whose programs were to be rebroadcast. J.A. 84. The County had only obtained blanket consents from the originating stations and the networks that were contingent on obtaining approval of the copyright owners, and had not yet negotiated agreements with program syndicators.

Third, petitioner alleged that the County lacked the financial qualifications to construct and operate the proposed facilities;¹⁵  and, fourth, Tele-Media argued that the County had not shown a need for the translators. Section 74.732(b) of the Commission rules provided that applications for more than one translator, whether or not serving the same area, could only be granted "upon an appropriate showing of need for such additional stations." 47 C.F.R. Sec. 74.732(b) (1977). The company asserted that the County based its entire showing of "need" on the lack of free off-the-air television service in Monroe County. This showing, it was said, might be sufficient to justify the need for translators per se, but it did not address the need for one governmental entity to own and operate 25 translators in the same area.

Lastly, the petitioner claimed that this matter presented a compelling case for the FCC to hold the County's applications in abeyance. The FCC had begun an inquiry to reexamine its translator policies. It proposed to hold in abeyance pending translator applications that involved "novel features touching upon matters being considered" in the inquiry. Notice of Inquiry, supra note 3, at 1535; see also Low-Power TV Rules, 45 Fed.Reg. 69,178 (1980) (notice of proposed rulemaking); id., 47 Fed.Reg. 21,468 (1982) (final rules). The company requested the Commission to hold the County's applications in abeyance because the issues raised by the applications were said to be identical to those treated in the inquiry.¹⁶ 

After reviewing the entire record, the Commission granted the County's applications and dismissed the cable company's petition to deny. The Commission was not persuaded by the contention that the grant of the applications would be contrary to the public interest because it would result in a loss of local programming that would not be replaced. That argument, observed the Commission, was "an effort to raise a so-called Carroll issue." 72 F.C.C.2d at 686. The Commission indicated that the court's concern in Carroll was "whether an additional broadcast station in the market would have such a severe economic impact on existing broadcast services as to result in a net loss of public affairs programming to the public." Id. (emphasis in original). The Commission determined that the Carroll doctrine could only be applicable to public affairs programming by broadcast services:

The public affairs program [s] that are the Court's concern in Carroll are those that broadcasters develop and fashion to meet community needs and problems after an exhaustive ascertainment procedure that is reviewed by the Commission. These programs, the very heart of broadcasters' public interest obligations, are mandatory and subject to our review every three years.

Id. at 686-87. Because cable systems are not subject to the same sort of Commission scrutiny and may discontinue their local-origination programming at any time, the Commission concluded that the Carroll doctrine could not be applicable to the threatened translator competition to the existing CATV system. Id. at 687. The Commission noted in addition that the residents of Monroe County "should be given the option to choose between cable television and broadcast services." Id. at 686.

The Commission also disallowed the remainder of the company's contentions. After considering the claim that the County was required to obtain the consent of each program owner on a program-by-program basis as a prerequisite to obtaining a construction permit, the Commission ruled that such a requirement "would effectively read into the Act a requirement not imposed by Congress." Id. at 689. The Commission noted that the County had obtained the rebroadcast consent from each affected station and from the supplier networks before it had applied for the construction permits. The County's financial statement was found to be a sufficient guarantee of committed funds. Id. at 688. The FCC turned aside as well the company's contention that the County had failed to make a showing of need for the translators. Established Commission policy did not require "an applicant ... to show a need for translators, unless an objecting party first makes a prima facie showing of lack of need," and it concluded that the company's allegations that the translator would duplicate the service already provided by a cable system was inadequate, "as the need for the proposed translators in Monroe County is abundantly clear." Id. at 687.

Finally, the Commission denied the company's request to hold the matter in abeyance pending the outcome of the translator rulemaking. The Commission noted that the Notice of Inquiry specified that authorization of routine new television translators would not be delayed under the existing regulatory plan. Because the County's applications were "routine" and met existing regulatory requirements, abeyance was inappropriate. Id. at 693.

Tele-Media filed a timely petition for review of the Commission decision. The County and American Broadcasting Companies, Inc., sought and were granted intervention.

II

We approach Tele-Media's challenge to the Commission's decision with the knowledge that the "scope of our review is quite narrow"¹⁷  because "Congress intended to vest in the FCC a large discretion to avoid time-consuming hearings in this field whenever possible, and we [should] ordinarily defer to that purpose."¹⁸ 

Under section 309(d) of the Communications Act of 1934, 47 U.S.C. § 309(d), the Commission, after consideration of the pleadings and other matters that it may officially notice, is required to grant license applications that fail to raise "substantial and material questions of fact," if the license would serve the "public interest, convenience, and necessity." If a substantial and material question of fact is raised or if for any reason the Commission cannot make a finding that the grant of an application will serve the public interest, section 309(e), 47 U.S.C. § 309(e), requires that the application be designated for hearing. Under the statutory scheme, any party in interest may file a petition to deny a pending application. This petition, however, must "contain specific allegations of fact sufficient to show ... that a grant of the application would be prima facie inconsistent with the [public interest]." 47 U.S.C. § 309(d) (1). If the Commission determines that such a showing has not been made, it may dismiss the petition to deny with "a concise statement of the reasons for denying the petition, which statement shall dispose of all substantial issues raised by the petition." 47 U.S.C. § 309(d) (2).

The statutory scheme, therefore, does not mandate that every application pending before the Commission be designated for hearing. If no factual disputes exist or no specific allegations have been made in the petition to deny, there is no need for a hearing.¹⁹  Where factual disputes exist, a hearing is not automatically required, for " [c]ontradictory allegations and affidavits which create some possibly unresolved factual issue do not invariably necessitate an evidentiary hearing before the Commission can judge whether an assignment would be in the public interest."²⁰  To determine whether a "specific and material" question of fact has been raised, this court must consider whether "relevant facts were adequately presented" to the Commission and whether any material properly before the Commission suggests "that a further hearing would produce additional facts that might change the result."²¹  After careful review of the evidence submitted by the company to the Commission, we conclude that the allegations contained in the petition to deny raised no "specific and material" questions of fact that would warrant an evidentiary hearing on the County's applications and that the Commission acted properly when it granted the County's applications, finding them to be in the public interest.

B. Tele-Media's Challenges to the FCC's Order

Tele-Media asserts that the Commission erred when it failed to apply the doctrine enunciated in Carroll Broadcasting Co. v. FCC, 258 F.2d 440 (D.C. Cir. 1958),²²  to the instant case. The company maintains that an evidentiary hearing pursuant to 47 U.S.C. § 309(e) is mandated to evaluate the public injury that is said to result if the County's proposed translator system is authorized. The company urges that the FCC's order makes a "mockery" of the Carroll rule²³  and is inconsistent with its stated desire to promote cable carriage of local programming.

Tele-Media's opposition to the translator project is based principally on competitive grounds. The translator system, which will carry the three major network stations from Miami, one independent station, and the Miami educational station, will provide five of the channels offered by the twenty-channel cable system.²⁴  Tele-Media contends that as a result of the duplicative translator programs in the market, the majority of the subscribers would elect to terminate their subscriptions and switch to the free translator service. It argues that operation of the translators would thus inflict severe economic injury on the company, forcing it to curtail or discontinue its origination of local programming on the cable system. This local programming could not be replaced by the translators, because the County's translator system will lack the ability to originate any programming. This diminution in local programming, Tele-Media asserts, would represent a significant loss to the public. Accordingly, the company argues that the Commission erred by not conducting a Carroll hearing to consider the injury to the public interest.

We reject the company's contention that the Commission must conduct a hearing whenever an existing cable system faces threatened economic competition by a proposed translator system that might result in a reduction in the cable station's voluntarily produced local programming. We recognize that operation of the Monroe County translator system may cause existing Tele-Media subscribers to discontinue their subscriptions and may reduce the number of potential subscribers. This fractionalization of the viewing audience, no matter how economically harmful to the cable station, is not, however, sufficient to trigger a Carroll hearing because the Carroll doctrine is inapplicable to the projected loss of local programming that is voluntarily produced.²⁵ 

The teaching of Carroll was that the clear benefits to the public of increased competition in the broadcast market might be outweighed by a concomitant net loss of public interest programming. The thrust of the court's concern was, however, the programming that the Commission compels licensed broadcasters to develop and fashion to meet community needs. Under complex and detailed procedures,²⁶  local stations are required to conduct regular efforts to ascertain community problems and needs, and to structure their programming to meet those needs.²⁷  In order further to encourage local programming, the Commission prohibits local stations²⁸  from airing more than three hours of network programming during prime-time evening hours, except for certain news, sports, children's, and public affairs programming.²⁹  To monitor broadcasters' compliance with these and other Commission rules designed to foster the public interest, the FCC has the authority to review broadcast station licenses every three years.³⁰  As a licensee's term comes up for renewal, the FCC is under a statutory duty to ensure that the broadcaster has fulfilled its public interest obligations.

Cable systems,³¹  however, are not subject to the Commission's public interest programming requirements. As interstate communication, cable is regulated by the FCC.³²  In 1968, however, the Supreme Court limited the Commission's regulatory authority under the Communications Act of 1934 to that "reasonably ancillary" to the discharge of its authority to regulate over-the-air broadcasting.³³  Acting pursuant to this "reasonably ancillary" standard, the FCC promulgated a host of cable regulations. The Commission extended broadcasting's fairness doctrine³⁴  and equal time requirements³⁵  to cable.³⁶  It also adopted a comprehensive regulating scheme designed to ensure public, governmental, educational, and leased access³⁷  to cable systems.³⁸  The Supreme Court, however, in FCC v. Midwest Video Corp., 440 U.S. 689, 99 S. Ct. 1435, 59 L. Ed. 2d 692 (1979), invalidated these access requirements. The Court held that the Commission exceeded its jurisdiction in promulgating these rules because they were not reasonably ancillary to the regulation of broadcasting. Id. at 708, 99 S. Ct. at 1445.

Broadcasters and cable operators, therefore, have radically different public responsibilities under the Communications Act and present FCC regulations. While both systems are subject to the fairness doctrine³⁹  and equal time requirements,⁴⁰  only licensed broadcasters are compelled to ascertain community needs and provide local programming.⁴¹  Any local-origination programming that is offered by a cable service is gratuitous and may be discontinued at any time.⁴²  The cable operator will only originate local programs of public interest if its subscribers are willing to pay for such service.⁴³  If interest in such programming slackens or is not sufficient to support the service, the cable operator is free to discontinue the programming. Unlike broadcasters, moreover, cable operators are not subject to Commission review on a continuing basis.

The extension of the Carroll doctrine to local-origination programming by cable systems, as suggested by the company, would be an anomaly when viewed against this scheme. Although that programming may be in the public interest while it lasts, the Commission is justified in not relying on it in making a decision on a competing application. If Tele-Media succeeded in blocking the license for the translators, it could then cease public programming and the public would have neither a choice of systems, which the Commission's decision promotes, nor the counterbalancing benefits of local programming. As the Commission noted, the "basic fact" that the Commission does not have control over cable programming "puts [cable] originations outside of the Carroll analytical framework."⁴⁴ 

This case is thus quite unlike the situation in H & B Communications Corp. v. FCC, 420 F.2d 638 (D.C. Cir. 1969), upon which Tele-Media relies. In that case, it appeared that a new translator system might electronically interfere with the reception of television programming by an existing cable system's subscribers. This court held that the Commission should weigh the interests of cable subscribers against those of the rest of the community wishing to receive the free translator programming. Where one system would eclipse the other as a matter of pure physics, thereby foreclosing the community's chance to choose between the two, the location of the public interest was in doubt.

Here, however, it is clear that the installation of the translator system will provide the residents of the County with a choice of systems, which is surely in the public interest. See H & B; see also FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 60 S. Ct. 693, 697, 84 L. Ed. 869 (1940) ("Congress intended to leave competition in the business of broadcasting where it found it, to permit a licensee who was not interfering electrically with other broadcasters to survive or succumb according to his ability to make his programs attractive to the public."). That local-origination programming might be reduced would be of countervailing concern except that there is no assurance that Tele-Media will continue to provide that programming in any case. In these circumstances, the Commission could properly ignore the potential diminution in local programming as beyond the scope of the Carroll doctrine. See Board of County Commissioners, 72 F.C.C.2d at 686-87.⁴⁵ 

Section 325(a) of the Communications Act, 47 U.S.C. § 325(a), provides that no licensed broadcast station may "rebroadcast the program or any part thereof of another broadcasting station without the express authority of the originating station." The Commission has expressly applied this requirement of retransmission consent to translators:

The licensee of a television broadcast translator station shall not rebroadcast the programs of any television broadcast station ... without obtaining prior consent of the station whose signals or programs are proposed to be retransmitted.

47 C.F.R. Sec. 74.784(b) (1981).

Tele-Media interprets this statute and its implementing regulations to mean that a television translator applicant must obtain three types of unqualified rebroadcast consent as a prerequisite to construction of the proposed translators: consent of each originating station for each program that the station originates and owns, such as locally produced news, public affairs, or entertainment programming; the consent of each network for every network program under contemplation for rebroadcast; and the consent of each program syndicator or owner for every non-network, nonlocal program under consideration. Brief of the Appellants at 45-51. The company asserts, and the County acknowledges, that the County only obtained qualified consents from each originating station and network. The company urges that the County's failure to obtain individual program consents expressly covering syndicated or nonlocal, non-network programming, and its failure to secure unqualified consents from each originating station and network violates section 325(a) and should have precluded grant of its license to construct the translators. The Commission's finding that section 325(a) does not require, as a prerequisite for a construction permit, the consent of each program owner on a program-by-program basis, argues the company, constitutes reversible error.

We reject the company's claim that a translator applicant must secure the retransmission consent of each program owner prior to obtaining a construction license. We need not reach the question of whether such program-by-program consent is required by section 325(a) before the translators begin operations because this issue is not ripe for judicial review. The statute prohibits rebroadcast without consent of the originating station; it does not contemplate that such consent need be obtained prior to the construction of the rebroadcasting facilities. Whatever retransmission consent is required by the Act is not legally necessary until just prior to actual translator operation.

The Commission, however, has recognized that, as a practical matter, the translator applicant must have a strong likelihood of obtaining the requisite consents, for without them the grant of an application would be essentially a "futile act." Springfield Television Broadcasting Corp., 34 F.C.C.2d 830, 831 (1972). To ensure that its action will not be "futile," the Commission requires each translator applicant to represent that it has obtained the requisite section 325(a) consent of the originating station when its construction permit application is filed. See FCC Form 346, sec. I, question 4(b), reprinted in 47 Fed.Reg. 21,505 (1982). Typically, the consents obtained by the translator applicants are not unconditional or unqualified; the Commission and this court have recognized that originating stations have justifiable reason for refusing to grant absolute, blanket permission for retransmitting their signals.⁴⁶  See WBBF, Inc., 24 F.C.C. 179, 186-88 (1958), aff'd sub nom. Federal Broadcasting System v. FCC, 266 F.2d 922 (D.C. Cir.), cert. denied, 361 U.S. 822, 80 S. Ct. 68, 4 L. Ed. 2d 67 (1959). Accordingly, the Commission has not required a translator applicant to provide evidence of absolute satisfaction of section 325(a) consent requirements prior to initial licensing. It has processed and granted translator applications when the applicant has only provided qualified consents from originating stations.⁴⁷ 

Monroe County has provided the Commission with such qualified consents. It obtained retransmission consent from each of the five stations whose programming it proposed to amplify and rebroadcast, and it obtained letters of consent for network programming from each of the three commercial networks and the Public Broadcasting System. Board of County Commissioners, 72 F.C.C.2d at 689; see J.A. 403-55. It also sought the consent of four syndicators; none of these program owners explicitly denied its consent and each indicated a willingness to grant consent if specific licensing arrangements were made. See J.A. 720-36. The Commission found such qualified consents adequate and granted the construction permit.

The company asserts, however, that the Commission, in its ruling, held that section 325(a) only requires the consent of the originating station prior to rebroadcast. Brief of Appellants at 45. We believe that the company has misread the Commission's decision. In its opinion, the Commission did no more than authorize construction of the translators. The applications for the construction permits were the only issues pending before the Commission. The construction permits issued by the Commission to the County merely allow construction: they expressly state that they do not authorize operation of the translators.⁴⁸  After construction is completed, the County must file separate applications for licenses to operate the translators; the applications must demonstrate that the construction complied with the permit specifications and that all applicable regulations have been satisfied. See 47 C.F.R. Sec. 74.14 (1981); FCC Form 347, question 3. After examination of these applications, the Commission will have the opportunity to determine whether the section 325(a) requirements have been met. At that time, Tele-Media will be able to assert before the Commission its claim that the statute compels program-by-program retransmission consent. If the Commission rules that section 325(a) only requires the consent of the originating station, Tele-Media will then have the opportunity to renew its arguments before this court.

We therefore hold that when a translator applicant has filed applications for construction permits with the Commission, the Commission is empowered to authorize construction of the translators without requiring the applicant to produce retransmission consents for each program under contemplation for rebroadcast. We do not decide whether individual consent by each program owner is a necessary prerequisite for actual rebroadcast of the programs or whether section 325(a) merely requires the consent of the "originating station" for translator operation. The proposed translator system for the County has not yet been built and will not be ready to rebroadcast programs for quite some time. Accordingly, determination of the question of whether the County has secured the consents required by section 325(a) in anticipation of operating the system would be premature at this time. See generally Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 57 S. Ct. 461, 463-464, 81 L. Ed. 617 (1937).

Tele-Media next challenges the financial qualifications of the County, asserting that a hearing is required pursuant to 47 U.S.C. § 309(e) to resolve factual questions involving the accuracy of cost projections and availability of committed funding. We find their contentions to be general and conclusory, lacking the specificity required by statute. These allegations, therefore, do not raise substantial and material questions of fact appropriate for a hearing.⁴⁹ 

The County estimated that the proposed translators would cost $497,471 to construct and $32,600 to operate for one year; it included $575,000 in its annual budget as a separately identifiable appropriation. J.A. 295, 397. It supported this cost estimate with a letter from the Board's legal advisor that stated that the County's adoption of the translator budget item constituted a fixed appropriation the funding of which was guaranteed. J.A. 399. Tele-Media challenged the County's showing of financial qualification on two separate grounds--the reasonableness of the County's estimates and the availability of the funds. J.A. 92-95, 675-688. Based on its "experience gained from processing several hundred translator applications annually," the Commission found the County's estimates to be "reasonable and reflective of current market costs." 72 F.C.C.2d at 688. It also ruled that the fixed appropriation for the project was greater than the estimated cost of construction and first-year operation and provided adequate assurance that sufficient funds would be available to construct and operate the translators.

On appeal, Tele-Media argues that the Commission decision was arbitrary and capricious because the Commission simply accepted the County's cost estimate and budget allocation as evidence that the County had the ability to finance the project. This action, asserts the company, is directly contrary to the stringent financial qualifications test that the Commission adopted in Ultravision Broadcasting Co., 1 F.C.C.2d 544 (1965). It urges this court to remand the case to the Commission for an evidentiary hearing pursuant to 47 U.S.C. § 309(e) on the issue of the County's financial resources.

We reject the company's suggestion that we should remand this case to the Commission. At the outset, we note that the figures submitted by the County to the Commission are estimates, not balance sheets. The County, in its applications and subsequent amendments, provided detailed explanations of the cost of the proposed translator system. Tele-Media asserted that these estimates were not realistic. It failed, however, to carry its burden under section 309(d) (1) of the Act, 47 U.S.C. § 309(d) (1): it failed to present "specific allegations of fact" that called into question the accuracy of the County's estimates. The company has not demonstrated that these cost estimates are not reflective of current market costs.⁵⁰  It has not offered to submit particularized evidence to support its allegation that the County's cost estimates are inaccurate or insufficient.⁵¹  Because the company failed to present any specific allegations of fact that challenged the County's estimates of construction and operating costs, the Commission had no statutory obligation to designate a hearing on this issue.

Similarly, the challenge to the availability of the funds must also fail. In reviewing applications for translator licenses, the Commission has required applicants to demonstrate no more than a "reasonable assurance" that the funds will be available at the proper time. Crosby N. Boyd, 57 F.C.C.2d 475, 489 (1976); see also Multi-State Communications, Inc. v. FCC, 590 F.2d 1117 (D.C. Cir. 1978); Jay Sadow, 39 F.C.C.2d 808, 810 (Rev.Bd.1973). In its applications, the County clearly showed that it had budgeted for the then most recent fiscal year $575,000 for the proposed translators, some $45,000 more than the estimated cost of construction and first-year operation. Board of County Commissioners, 72 F.C.C.2d at 688; J.A. 804-24. The County demonstrated that the money had been appropriated from available funds, that there was no question as to its availability, that the funds had been appropriated expressly for the translator system, and that neither ratification by the voters nor approval by any other government body was necessary. J.A. 295. The County also submitted an opinion letter from the Board's legal adviser stating his opinion that under Florida law the expenditures budgeted for the translators constituted a fixed appropriation the funding of which was guaranteed. J.A. 399. It is therefore our view that the County demonstrated, with reasonable assurance, that the funds necessary for construction and operation of the system were available and committed.⁵² 

Tele-Media alleges that the Commission's order is contrary to section 74.732(b) of its rules because it placed the burden on the company to make an initial prima facie showing of lack of need for the proposed translators. This action, so it is said, subverted the actual wording of the rule, which assertedly places the initial burden on the applicant to demonstrate the need for the proposed translators.

The rule applied by the Commission reads as follows:

More than one television broadcast translator station may be licensed to the same applicant, whether or not such stations serve substantially the same area, upon an appropriate showing of need for such additional stations.

47 C.F.R. Sec. 74.732(b) (1977); see 25 Fed.Reg. 7317, 7322-23 (1960).⁵³  The rule was intended to make clear that multiple-ownership and duopoly restrictions applicable to other broadcast stations would not apply to translators because of the passive and limited function of these kinds of stations. Id.⁵⁴ 

The Commission replies that although the language of the rule may be susceptible of an interpretation that would place the burden of showing need on the applicant, the Commission has consistently interpreted it to require a prima facie showing of lack of need, because the need for the translators can be presumed regardless of the number applied for. See, e.g., Porter Mountain Antenna TV Ass'n, 61 F.C.C.2d 724 (1976). The Commission asserts that we should defer to the agency's interpretation of its own rule.

We need not reach the validity vel non of the Commission's policy of requiring the objecting party to make a prima facie showing of lack of need or the question of whether a need can be presumed in certain circumstances, because in this case it appears that the Commission found an adequate showing of need without relying on the allocation of the burden of persuasion.

The Commission found that "the need for the proposed translators in Monroe County is abundantly clear," because "the vast majority" of the population is unserved by off-the-air television service, and "some 15 percent" of the population in the limited areas served by cable is without any television service at all. 72 F.C.C.2d at 687. The underlying factual findings of the extent of cable and off-the-air service were undisputed, and were in any case completely supported by evidence in the record.⁵⁵  We agree that where, as here, the area proposed to be served by the translators is presently underserved by cable television and, in any case, unserved by off-the-air television, Congress in section 1 of the Communications Act⁵⁶  and the Commission in its continuing development of the concept of a translator license⁵⁷  have decided that translators fill a public need.⁵⁸  The Commission's finding that there was a need for the translators in Monroe County is thus consistent with the applicable law.

The Commission further found that all 25 of the translators were required to fill that need. 72 F.C.C.2d at 687 (evidence was "sufficient to support a need for the proposed translators"). This finding was largely undisputed.⁵⁹ 

In its reply brief on appeal, however, Tele-Media asserts that the showing of need that is required by the language of section 74.732(b) is need for a single entity to own all the translators required to provide service to the area. Reply Brief of the Appellants at 32. Given the evident thrust of the section to deal with multiple ownership and duopoly, the company's reading is not implausible. Nevertheless, we think the language of the relevant phrase--"an appropriate showing of need for such additional stations"--should be read to require, if anything, only a showing that additional translators are needed to serve an area, and not that there is some special need for a single entity to own all of them. This appears to have been the Commission's consistent interpretation of the showing of need that would be required,⁶⁰  and we must give the agency's interpretation of its own rules "controlling weight" unless it is "plainly erroneous." Udall v. Tallman, 380 U.S. 1, 16-17, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1965), quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945).

5. The Request to Hold the Applications in Abeyance

Tele-Media contends that the Commission abused its discretion by not holding Monroe County's application in abeyance pending resolution of the FCC's inquiry into the future role of low-power television broadcasting and television translators. See Notice of Inquiry, supra note 3; Low-Power TV Rules, 45 Fed.Reg. 69,178 (1980) (notice of proposed rulemaking); id., 47 Fed.Reg. 21,468 (1982) (final rules), as corrected, 47 Fed.Reg. 30,495 (1982). The company asserts that the issues it raised in its pleadings "touched upon" matters under reexamination in the Commission's investigation of the subject, Brief of the Appellants at 58-64, and that the similarity between the questions raised by the applications and the questions raised in the Inquiry should have compelled the Commission to hold the application in abeyance.

In announcing the initiation of a proceeding to consider new approaches to increasing the diversity of television services to the public, the FCC clearly stated its intent to continue processing routine translator applications that do not raise any novel issues under the existing rules.⁶¹  The County's applications were routine. The translator system proposed by the County would function only to rebroadcast the off-the-air signals of the five Miami stations, a service permissible under the existing rules; this particular translator proposal was thus neither novel nor nonroutine, but rather envisioned no more than the traditional translator function of simultaneous rebroadcast. Similarly, we find that none of the issues raised by Tele-Media presents any novel questions of law. Accordingly, we conclude that the Commission did not abuse its discretion when it declined to hold the matter in abeyance.⁶² 

For the foregoing reasons, the order of the Federal Communications Commission under review is affirmed.

It is so ordered.