Brief Fact Summary. JEM Broadcasting Company (JEM) submitted an application for
a license for a new FM station to the FCC, but the FCC dismissed it without providing
JEM an opportunity to correct its error. JEM contended that the “hard look” rules of the
FCC could not be applied toward it because the rules were promulgated without notice
and comment in violation of the APA.
Synopsis of Rule of Law. Challenges to the procedural lineage of agency regulations,
whether raised by direct appeal, by petition for amendment or rescission of the regulation
or as a defense to an agency’s enforcement proceeding will not be entertained outside the
60-day period provided by the statute.
Section:2344 of the Hobbs Act provides that any party aggrieved by a final agency order can file
a petition to review the order within sixty days in the court of appeals where the venue
JEM challenged the “hard look” rules as in violation of the APA because the FCC had
not given notice and an opportunity to comment. JEM conceded that the direct petitions
for review were governed by the sixty-day period, but claimed that indirect attacks on a
rule’s validity in the context of an adjudicatory proceeding were not so governed.
Second, JEM urged that it couldn’t have petitioned for direct review of the “hard look”
rules within the statutory period because it was not then an aggrieved party.
Issue. Could JEM challenge the “hard look” rules outside the statutory period?
Held. No. The Court rejected JEM’s arguments and held that its challenge to the “hard
look” rules was untimely.
The sixty day limitations period does bar an action of this type. The
aforecited rule of NLRB Union and Natural Resources Defense Council is
equally applicable to cases of the type presented here.
Challenges to the procedural lineage of agency regulations, whether raised by
direct appeal, by petition for amendment or rescission of the regulation or as a
defense to an agency’s enforcement proceeding will not be entertained outside
the 60-day period provided by the statute.
Any other party aggrieved at the time the “hard look” rules were promulgated
would have been “aggrieved” within the meaning of Section:2344, and thus would
have had standing to challenge the procedural lineage by a direct petition for
review thereof. No party did so, and the statutory period expired.
Discussion. The policies underlying Congress’ adoption of the statute of limitations
strongly supports this result. There is a high value placed on finality in administrative
processes, both to conserve agency resources and protect the reliance interests of