Case 102

Bywater Neighborhood Association v. Tricarico, 879 F.2d 165 (5th Cir. 1989), cert. denied, 494 U.S. 1004 (1990).

Bywater Neighborhood Association brought suit against the Federal Communications Commission (FCC) and owners of a television microwave tower and satellite earth station, seeking removal of the tower and station which they deemed inconsistent with the character of the Bywater National Historic District. Plaintiffs alleged that FCC failed to comply with the National Historic Preservation Act (NHPA) when it did not consult with the Advisory Council on Historic Preservation prior to licensing the structure.

At the outset, the Fifth Circuit noted that NHPA creates a private right of action outside the Administrative Procedure Act which grants private parties the right to sue Federal agencies, but not private defendants. 879 F.2d at 167. The court's opinion, however, focused on the jurisdictional question of whether the exclusive procedures for judicial review of FCC licensing decisions in the courts of appeals could be circumvented under NHPA, the Mandamus and Venue Act, or the Declaratory Judgment Act.

The court explained that "some tension exists" between NHPA, which grants interested persons the right to bring suit in any United States district court and provisions of the Judicial Code at 28 U.S.C. § 2342, and the Communications Amendments Act of 1982 which grant exclusive jurisdiction over appeals of FCC final orders to United States courts of appeal. The Fifth Circuit resolved the conflict between the statutes by finding that only the courts of appeals, not the district court in which plaintiffs filed suit, had jurisdiction to hear appeals from FCC rulings. 879 F.2d at 168.

The court reasoned that Congress had specifically expressed its intent to grant exclusive jurisdiction over FCC rulings to the courts of appeal and found that the legislative history of NHPA showed no intent to override the special provisions concerning FCC.

The court also rejected plaintiffs' argument that the Mandamus and Venue Act and the Declaratory Judgment Act were independent bases for district court jurisdiction. Such acts, it explained, were extraordinary remedies, unavailable until plaintiffs had pursued the specific mode of judicial review as set forth by Congress. Finally, the court observed that the D.C. Circuit, not the Fifth Circuit, was the appropriate forum to hear the neighborhood association's complaint, once it exhausted its administrative remedies, because the complaint falls within 47 U.S.C. § 402(b)(6), which grants the D.C. Circuit the exclusive right to hear appeals regarding licensing decisions. Id. at 169.

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