WPC 2a BK Z CG Times3|aTimes New Roman Italic6G;XPTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDdDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddxHxxHvppDXd<"dxtldpxxd"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\CddoddCdYds]xUvdYYCCCCx~oxoY~NYdYC8YooYdYxsdxdd~YYxoxxx~CdxYxxxxCCdddddddxCsdYC\   pxtll\tll@\@\`LHP LaserJet 5Sii PostScriptHPLAS5SI.PRSXN\  P\m#lXP2D <5 D 0 #XN\  PynXP#!Aӊ-  -@Њ#Xw PE37XP#Times New RomanTimes New Roman ItalicTimes New Roman Bold PXP#XN\  PXP#AӊЫXN\  PXP(hH  Z 6Times New Roman RegularXXN\  PXP(hH  Z 6Times New Roman RegularX&G\  P&P\ `&2KK^ 3|x20XBKK/r7jC:,ynXj\  P6G;XP2a=5,u&a\  P6G;&Pk(N1+,N\  P6G;P2a=5,u&a\  P6G;&P"i~'^+2;II{r222IR&2&)IIIIIIIIII))RRRAjaaj[Rjj28j[jjRjaR[jjjj[2)2CI2AIAIA2II))I)rIIII28)IIjIIAFFO2&OC222&222222I2I)jAjAjAjAjA_aA[A[A[A[A2)2)2)2)jIjIjIjIjIjIjIjIjIjIjAjIjHjIjIjIRIjAjAjAaAaAaOaAj\[A[A[A[AjIjIjIjOjIjOjI2)2I222IgROOjI[)[;[2[2[)jIWjIjIjIjIja2a2a2R8R8R8RO[>[)[CjIjIjIjIjIjIjjO[A[A[AjI[2jIR8[2jI\&II11WggggggggggggggggggggggggggggggggggggggggggggggggxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN5XX5CI2AIIIII)/ooI,/ooIo,22AAI22XIIXo5XX5WxxRR2AI{,"aaaaooIoXUOIRXXI"i~'^5>I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>jaaj[Rjj28j[jjRjaR[jjjj[X%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\2RKbZq K"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\nBnnBb\\>g\7"yyyy\njc\}nn\7jC:,ynXj\  P6G;XP2a=5,u&a\  P6G;&Pk(N1+,N\  P6G;P2a=5,u&a\  P6G;&P\0_=5,&_*f9 xr G;&X2e=5,'&e4  pG;&   "i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\nBnnBsgg>\\7"yyyy\nlc\gnn\2 S3#&G\  Pu&P#UUnited States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT 3 Argued October 3, 1997 Decided December 12, 1997  No. 961438  S3Radio Televisi;n S.A. de C.V. and Bay City Television, Inc.,  Sp3`Appellantsă 9v.  S 3%Federal Communications Commission,  S 3&Appelleeă Appeal of an Order of the [Federal Communications Commission  S3 ppNorman P. Leventhal argued the cause for appellants, with whom Barbara K. Gardner was on the briefs.  Sj3 pZpJoel Marcus, Counsel, Federal Communications Commission, argued the cause for appellee, with  SD3 W whom William E. Kennard, General Counsel, and Daniel M. Armstrong, Associate General Counsel, were  S3on the brief. C. Grey Pash, Jr., Counsel, entered an appearance.  S3pBefore: Wald, Sentelle and Henderson, Circuit Judges.  S3pOpinion for the Court filed by Circuit Judge Sentelle.  S43 ppSentelle, Circuit Judge: Radio Televisi;n, S.A. de C.V., the licensee of Mexico-based XETV,  W and its domestic affiliate Bay City Television, Inc. (collectively "XETV"), seek review of an FCC order  W F granting Fox Television's application under  325 of the Communications Act for permission to transmit  W  live television programming to XETV for rebroadcast into San Diego, California. In a prior decision, we  W ivacated a Commission order which held incorrectly that NAFTA required the FCC to abandon its prior  W {position that certain public interest requirements apply to  325 applications. On remand, the FCC  W retreated to its prior position, stating that it would condition renewal in five years on whether Fox's  W foreign affiliate had provided "issue-responsive programming" to its San Diego viewers. Because this  W &requirement does not discriminate against foreign stations in violation of NAFTA, and because the  W |Commission need not renew its explanation for following its long-standing policy, we affirm the Commission's order.  SV$3 I. Background ă  S&3 pmpThe Communications Act of 1934 (the "Act"), 47 U.S.C.  151 et seq., subjects radio and  W television stations that broadcast within the United States to licensing by the FCC, which must inquire as  W %to whether the "public interest, convenience, and necessity will be served by the granting" of a license  W 6application. 47 U.S.C.  309(a). To this end, the FCC must ask whether a broadcaster provides "issue"(0*0*0*,"  W Xresponsive programming," that is, whether it serves the public interest by providing programming that  S3 W Gconcerns local issues facing the community to which it broadcasts. See, e.g., Commercial TV Stations, 98 F.C.C.2d 1076, 109294 (1984) (subsequent history omitted).  ppBecause of the possibility that domestic broadcasters in some areas could evade the Act's  W 6requirements by transmitting their signals to a foreign station for rebroadcast into the United States,   W 325(c) expressly prohibits such transmissions without an FCC permit. Section 325(d) provides that the  W "requirements of section 309" shall govern FCC consideration of applications for such permits; thus, in  W F a  325 proceeding, the FCC must determine whether the "public interest, convenience, and necessity will  W Gbe served by the granting" of the permit. Since at least 1972, the FCC has considered issue-responsive programming as part of its "public interest" analysis under  325.  pkpXETV has for many years broadcast programming from its Tijuana, Mexico facilities to viewers  W in San Diego, California. In 1956, the FCC granted the  325 application of American Broadcasting  W Companies, Inc. ("ABC") to transmit programming to XETV for rebroadcast into the domestic market.  S 3 W 5 See Channel 51 of San Diego, Inc. v. FCC, 79 F.3d 1187, 1189 (D.C. Cir. 1996) ("Channel 51"). When  W ABC filed a renewal application in 1968, a new domestic station, KCST, filed a petition to deny the  W Gpermit. Based in part on a finding that XETV's programming was "deficient in that it renders no local  W zservice meeting the needs and interests of the community," the FCC denied ABC's renewal application.  S 3 W $ American Broadcasting Cos., Inc., 35 F.C.C.2d 1 (1972) ("ABC 1972"), aff'd per curiam, 26 R.R.2d 203  S3(D.C. Cir.), cert. denied, 412 U.S. 939 (1973).  ppMore recently, XETV has served as the San Diego affiliate of the Fox Television network. Until  W 1994, Fox and XETV relied on a practice called "bicycling": Fox transmitted its programming to a U.S.  W receiving station, which made tapes and physically transported these across the border for XETV to  W 6rebroadcast into San Diego. This practice legally avoided the  325 licensing regime, but did not allow  W live broadcasts of any sort, which became a problem when Fox acquired the right to broadcast live games  W of the National Football League in 1994. Fox accordingly sought a  325 permit for cross-border electronic transmission.  pIpA domestic San Diego broadcaster, Channel 51, filed a petition to deny Fox's  325 application,  W zarguing that XETV's "issue-responsive programming" was deficient. The FCC eventually granted Fox's  S3 W permit, in the process reviewing the ABC 1972 standards in light of the North American Free Trade  W Agreement ("NAFTA"). The FCC concluded that NAFTA had invalidated its prior position, expressed  S3 W Hin ABC 1972, that "all of the public interest criteria used in domestic proceedings [should apply] to  S3 W Section 325 proceedings." See Fox Television Stations, Inc., 10 F.C.C.R. 4055, 4064 (1995) ("Fox 1").  W 7Although recognizing that NAFTA permitted it to continue considering programming matters, the  SF3 W {Commission held in Fox 1 that its standards must be more lenient under  325 than those applied in  W domestic proceedings. NAFTA's Annex VI directs the Commission to consider electrical interference as  W the "primary criterion" for evaluating the public interest under  325, and prohibits discrimination based  W on nationality and other unnecessary restrictions on trade. Under its reading of NAFTA, the FCC found  W the issue-responsive programming requirement discriminatory and unnecessarily restrictive of trade, and  S#3 W consequently held that it should no longer apply in  325 proceedings. Id. at 406566; Channel 51, 79 F.3d at 1191.  S &3 ppIn Channel 51 we vacated that portion of the FCC's decision in Fox 1 which ruled, based on  W zNAFTA, that the  309 issue-responsive programming analysis no longer applied to applications under  S'3 W k 325. We noted that the FCC had "already determined, in ABC 1972, that the issue-responsive  W Zprogramming requirement is relevant in a  325 proceeding," and held, applying well-established"(0*0*0*,"  W principles of administrative law, that if the FCC wanted to "depart from its prior ruling, it must provide  S3 W ia reasoned explanation." Channel 51, 79 F.3d at 1191; see also Gilbert v. NLRB, 56 F.3d 1438, 1445  W (D.C. Cir. 1995). We noted that the only rationale offered by the FCC for its changed position was the  W adoption of NAFTA Annex VI, principally because of the provisions therein prohibiting discrimination  Sb3 W against foreign broadcasters. For reasons set forth more fully in Channel 51, 79 F.3d at 119192, we  W Hconcluded that the FCC's reliance on Annex VI was misplaced and that NAFTA did not support the  S3 W ideparture from the reasoning of ABC 1972. Indeed, we observed that it would be "well-nigh impossible  W !to concoct" an explanation for "why subjecting a foreign station to the same issue-responsive programming  W  requirement to which domestic stations are subject constitutes discrimination against a foreign station on  S3 W zthe basis of its nationality," in violation of NAFTA. Id. at 1191. Thus, we vacated the order granting Fox's  325 permit and remanded for further proceedings.  S( 3 p8pOn remand, the FCC reconsidered its position, based on our decision in Channel 51, and decided  S 3 W to reaffirm its original position articulated in ABC 1972, namely, that its "Section 325 analysis must  S 3 W Xinclude an analysis of the public interest convenience and necessity consistent with Section 309." Fox  S 3 W Television Stations, Inc., 11 F.C.C.R. 14870, 14877,  21 (1996) ("Fox 2"). It then granted the Fox  W 6application for a  325 permit, but conditioned this grant "on XETV's provision of programming that  Sh3 W meets the Commission's issue-responsive requirement during the five year authorization term." Id. at  W 14878,  24. If and when Fox seeks renewal of its permit, it "will be required to show ... whether the  W  programming broadcast by XETV has met the issue-responsive requirement during the term of the initial  S3authorization." Id.  S3W  II. Justiciability ă  ppFox has not challenged the Commission's conditional grant, but XETV seeks review of the  S,3 W condition imposed on Fox, and indirectly upon its own programming, by the FCC's order in Fox 2.  W XETV claims that it has standing as a "person ... aggrieved" by the Commission's order, and that the  S3 W appeal is ripe for review. See 5 U.S.C.  702. We hold with some reluctance that XETV has alleged  S3 W y injury sufficient to confer standing and to satisfy the ripeness test of Abbott Laboratories v. Gardner, 387  S3U.S. 136 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).  ppXETV's allegations of injury, at the heart of both standing and ripeness inquiries, amount to this:  W Yas a result of the Commission's allegedly unlawful condition on a future renewal application by Fox,  W GXETV must alter its behavior, expending time and money to produce, air, and document the broadcast  W of issue-responsive programming during the next five years. Even though in five years time Fox might  W h not seek renewal of its  325 permit, the terms of the FCC order place a burden on XETV to comply with  W zthe issue-responsive programming requirement if it wants to preserve any chance of retaining its status  W as an affiliate of Fox, or any other U.S. network. The Communications Act grants standing before this  W  Court to "any ... person [other than those enumerated in the statute] who is aggrieved or whose interests  W $ are adversely affected by any order of the Commission granting or denying" applications, including those  W under  325(c). 47 U.S.C.  402(b)(6). Although the Commission's order was directed to Fox, not  W XETV, we hold that the condition placed on the grant of Fox's permit would, if unlawfully imposed, adversely affect the interests of XETV within the meaning of  402(b)(6).  pZpThe Commission's argument that XETV suffers no harm from the condition because the station  W $ has already made plans to engage in programming that the FCC would consider issue-responsive has some  W {appeal, but we ultimately reject it. XETV's plans may be in response to the forces of the San Diego  W market, or in response to the arguments made by its competitors during the ongoing  325  W  proceedings"plans which may change and adapt according to XETV's business judgment. The condition"(0*0*0*,"  S3 W  imposed in Fox 2 adds a new element: a legal obligation to provide issue-responsive programming to the  W F San Diego market, under a threat to deny a renewal application five years hence. An unlawful imposition of such a duty would constitute an injury to XETV's interests.  ppThe Commission has characterized XETV's challenge as unripe, because the agency has not yet  W determined"and may never need to determine, if Fox does not seek renewal"that XETV has not  W adequately provided issue-responsive programming. Again the Commission's argument is far from  S3 W frivolous. However, XETV's allegations appear to meet the ripeness test as articulated in Abbott  S3 W  Laboratories, even if only marginally. Under Abbott Laboratories, ripeness depends on "both the fitness  W F of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387  W |U.S. at 149. First, the substantive issues argued by the parties are "fit for judicial decision." The  W zquestions before us depend upon law, not facts: whether the condition violated NAFTA, exceeded FCC  W authority, or was inade-quately explained"not, for instance, whether particular future programming by  W XXETV would or would not satisfy the Commission's issue-responsive requirement. Second, there would  W W be significant hardship to XETV if we withheld review at this stage. The order has the effect of impelling  W W XETV to attempt to comply with the issue-responsive requirement over the next five years or risk denial  W iof a renewal application at that time. Thus, this is a situation where "the impact of the administrative  W action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs,"  S63 W i.e., XETV's "primary conduct is affected." See Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 164 (1967). Therefore, we hold that XETV's claims are ripe for review.  S3, III. Merits ă  ppHaving prevailed in its skirmish over standing and ripeness, XETV is doomed to lose its battle  W on the merits. We have already held that the Commission's application of the  309 issue-responsive  W F programming requirement in proceed-ings under  325 does not constitute discrimination between foreign  S3 W 6and domestic stations under NAFTA. See Channel 51, 79 F.3d at 119192. Further, we hold that the  S3 W W FCC was not arbitrary in reverting to its prior interpretation of  325 after we vacated its Fox 1 order for failure to provide a reasonable explanation for changing its interpretation.  S\"p A. NAFTA  S 3 ppFor the most part, XETV's briefs simply rehash arguments we already rejected in Channel 51:  W kthat is, that NAFTA Annex VI somehow prohibits the application of the  309 issue-responsive  W 6programming requirement to analysis under  325. XETV does not appear to recognize the futility of  S3 W relying upon reasoning set forth by the Commission in Fox 1, which we rejected in Channel 51 as  Sp3 W  incorrect. For example, XETV quotes Channel 51 as ruling that NAFTA's Annex VI "clearly affects the  SJ3 W FCC's ABC 1972 holding," Appellant's Br. at 13, and argues that the FCC could not therefore simply  W F return to its prior position that  325 incorporated the public interest requirements of  309. The quoted  W  passage, in its full context, rejects exactly the argument XETV makes in this second appeal, holding that Annex VI  S#3 pXpclearly affects the FCC's ABC 1972 holding that the presence of a domestic competitor willing  S^$3 pto serve as a network affiliate weighs against granting a permit to a foreign station. However,  pthe FCC does not explain why subjecting a foreign station to the same issue-responsive  p&programming requirement to which domestic stations are subject constitutes discrimination against  pa foreign station on the basis of its nationality. Indeed, such an explanation would be well-nigh impossible to concoct.(# Xp(#"(0*0*0*,"Ԍ S3 W Channel 51, 79 F.3d at 1191 (emphasis added). In the present appeal, no new allegation has been made  W h of discrimination against XETV in favor of a domestic station; indeed, the Commission has granted Fox's  W 5 application to rebroadcast through its foreign affiliate, and rejected a challenge by at least one of XETV's domestic competitors.  S:3 p8pXETV advances several other arguments, contending principally that ABC 1972 does not mean  W y what the Court and the Commission have said that it means. Without revisiting the substantive discussion  S3 W on the question of discrimination, fully set forth in Channel 51, we shall address a fundamental  W  misconception of XETV. XETV repeatedly protests that the Commission has no authority to condition  S3 W 6the "grant of a Section 325 permit on the provision of issue-responsive programming by the recipient  Sx3 W foreign station." See, e.g., Appellant's Br. at 21 (emphasis added). Under  325, the licensee is a  SR 3 W  domestic broadcaster: in this case, Fox Television. The foreign station, XETV, is never the recipient of  W {a  325 permit; at best, it is a third-party beneficiary of a domestic broadcaster's license. Thus, the  S 3 W W condition set forth in Fox 2 is a condition not on the foreign station's permission to broadcast a domestic  W network's programming, but on the domestic network's permission to use a foreign station to serve a  W domestic market. There is nothing unreasonable or discriminatory in the Commission's order which we  W Xcan summarize as requiring a domestic network to serve a local market only via an intermediary which  W adequately serves the public interest, regardless of whether the local affiliate is  #T  located within U.S. borders.  S"p B. Proceedings on Remand  S3 p(pXETV also claims that the FCC could not return to its ABC 1972 position after Channel 51  Sx3 W Gwithout explaining its reasons for doing so or for rejecting further arguments that ABC 1972 should be  SR3 W 6abandoned. This argument is specious. In Channel 51, we vacated the Commission's Fox 1 order, and  W remanded to the FCC for "treatment consistent with this opinion." 79 F.3d at 1192. We held that the  W Commission had not provided a reasonable explanation for its departure from its prior position, articulated  S3 W jin ABC 1972, that  325 incorporated the issue-responsive programming requirement of  309. Id.  S3 W Consistent with our opinion in Channel 51, the Commission on remand reverted to its previously  W established position that the issue-responsive programming requirement should apply to  325 proceedings.  W YIt then"generously"applied the requirement only prospectively to the next five years of XETV's programming.  S3 ppXETV mischaracterizes our decision in Channel 51 as "remand[ing] the Fox 1 decision to the  W W Commission for the narrow purpose of requiring the FCC to provide supplemental support for its changed  W #!interpretation of Section 325, not to direct the abandonment of that interpretation." Appellant's Reply Br.  Sz3 W at 17. In fact, we did no such thing. Channel 51 vacated Fox 1. We did not leave open to the  W W Commission on remand only the narrow range of options XETV describes. When we hold that an agency  W  has not provided an adequate explanation for its action, the "practice of the court is ordinarily to vacate  S!3 W  the [action]." Illinois Public Telecommunications Ass'n v. FCC, 123 F.3d 693 (D.C. Cir. 1997). Indeed,  S!3 W zsome contend that this is the only option available. See Checkosky v. SEC, 23 F.3d 452, 49092 (D.C.  W Cir. 1994) (Randolph, J., writing separately). In any event, although vacating an order does " 'not  W  foreclose[ ] the possibility that the Commission may develop a convincing rationale' for re-adopting the  Sh$3 W same [order] on remand," Illinois Public Telecomm. Ass'n, 123 F.3d at 694 (quoting Petroleum Comm.,  SB%3 W F Inc. v. FCC, 22 F.3d 1164, 1173 (D.C. Cir. 1994)), there is certainly no mandate that the agency seek to develop such a rationale. It is at least as likely that the agency will abandon its unsuccessful effort. "&0*0*0**"Ԍ S3 ppIn Channel 51, we held that NAFTA did not justify the Commission's departure from its prior  W position that it "should apply all of the public interest criteria used in domestic proceedings to Section 325  S3 W proceedings." 79 F.3d at 1191 (quoting Fox 1, 10 F.C.C.R. at 4064). Our remand for "treatment  W Xconsistent with this opinion" leaves open a wide range of actions. The Commission could have sought  W  to maintain its changed interpretation, if it could provide adequate justification, but it was equally free to  W y acknowledge, as it did, that its change in interpretation was incorrect. While it is fixed law that an agency  W must justify a change in its interpretations, we have never held that the agency must renew its explanation  S3 W each time it applies its fixed policy. See, e.g., Hall v. McLaughlin, 864 F.2d 868, 873 (D.C. Cir. 1989)  W F ("[W]here a particular agency action does not appear to be inconsistent with prior decisions, the agency's  S3 W 5 explanation need not be elaborate."). Given that Fox 1 offered no more than an incorrect application of  W W NAFTA to justify changing its long-standing interpretation of  325, the Commission's  #TB return to its prior position comes as little surprise.  S 3{ IV. Conclusion ă  S 3pThe order of the Commission in Fox 2 is affirmed in all respects.#TD