United States Court of Appeals 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
  
 
No. 15-1346 September Term, 2015 
         FILED ON: JUNE 28, 2016 
 
FREE ACCESS & BROADCAST TELEMEDIA, LLC AND WORD OF GOD FELLOWSHIP, INC., 
PETITIONERS 
 
v. 
 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, 
RESPONDENTS 
  
 
On Petition for Review of Orders of the 
 Federal Communications Commission 
  
 
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge. 
 
 J U D G M E N T 
 
  This petition for review from two orders of the Federal Communications Commission was 
presented to the court, and briefed and argued by counsel. The court has afforded the issues full 
consideration and has determined that they do not warrant a published opinion. See D.C. CIR. R. 
36(d). For the reasons stated below, it is  
 
ORDERED AND ADJUDGED that the petition for review be DISMISSED. 
 
Petitioners Word of God Fellowship, Inc., and Free Access & Broadcast Telemedia, LLC, 
petition for review of two orders of the Federal Communications Commission (FCC). See In the 
Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive 
Auctions, 29 FCC Rcd. 6567 (2014); Second Order on Reconsideration, 30 FCC Rcd. 6746 
(2015). In those orders, the FCC carried out Congress’s mandate in the Spectrum Act to develop a 
process to “shift a portion of the licensed airwaves from over-the-air television broadcasters to 
mobile broadband providers.” Nat’l Ass’n of Broads. v. FCC, 789 F.3d 165, 168 (D.C. Cir. 2015); 
see also Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112–96, 
§§ 6001-6703, 126 Stat. 156 (Spectrum Act). The petitioners here challenge the FCC’s treatment 
of low-power television (LPTV) stations in its orders. As the FCC acknowledges, the procedures it 
adopted to repurpose the licensed airwaves for use by mobile broadband providers will result in 
many LPTV stations either moving to new channels or shutting down altogether. According to the 
petitioners, the Spectrum Act prohibited the FCC from affecting LPTV stations in this manner. We 
do not reach the merits of these claims because they fail on threshold grounds. 
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 We lack jurisdiction over Word of God’s challenge because it is not a “party aggrieved” by 
a final order of the FCC. Our review is governed by the Administrative Orders Review Act, 
generally known as the Hobbs Act. See Simmons v. Interstate Commerce Comm’n, 716 F.2d 40, 42 
(D.C. Cir. 1983). Under the Act, “[a]ny party aggrieved by the final order” of the FCC may 
petition for review of that order. 28 U.S.C. § 2344. We have held that the phrase “party aggrieved” 
requires petitioners to be parties to the proceedings before the agency. Simmons, 716 F.2d at 42; 
Gage v. U.S. Atomic Energy Comm’n, 479 F.2d 1214, 1218 (D.C. Cir. 1973) (explaining that the 
court “does not have jurisdiction” over claims raised by petitioners who were not parties to the 
agency proceedings). Word of God does not dispute that it did not participate in the agency 
proceedings and therefore is not a party aggrieved under Simmons. Accordingly, we do not have 
jurisdiction over Word of God’s challenge. 
 
 Free Access also cannot bring its claims. Free Access is not an LPTV station nor does it 
own any stake in an LPTV station. Instead, Free Access invested cash in specific LPTV stations 
and, in return, received options to buy those stations. According to Free Access, its injury is a 
decrease in the value of its options stemming from the “imminent danger of displacement or 
outright shutdown” of those LPTV stations due to the FCC’s orders. Pet’rs’ Br. at 42. Thus, under 
this theory, Free Access suffers an injury from the orders only insofar as the LPTV stations in 
which it has options are injured by the orders. 
 
Under principles of corporate law, “[w]here the basis of an action is a wrong to the 
corporation, redress must be sought in a ‘derivative’ action.” WILLIAM MEADE FLETCHER, 12B 
FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 5908 (2009). A derivative action is an 
action brought on behalf of the corporation, as compared to an individual action, which is brought 
in the individual’s own name. Generally, a plaintiff may bring an individual action where the 
injury is “distinct from any injury to the corporation itself.” Labovitz v. Wash. Times Corp., 172 
F.3d 897, 901 (D.C. Cir. 1999). Free Access’s injury is not distinct from the injuries suffered by 
the LPTV stations in which it owns options. Instead, its injury is “directly tied to the fate” of those 
LPTV stations. Id. at 902. Accordingly, its action must be brought on behalf of the corporation as a 
derivative action. Free Access has not brought a derivative action here and we must dismiss the 
petition for review.1 
 
Free Access responds that we should excuse it from following general corporate law 
principles because it is not a shareholder and the corporation owes it no fiduciary duties. 
According to Free Access, because option-holders are owed no fiduciary duties, they must be 
allowed to bring individual lawsuits to protect their interests. But the rules regarding individual 
and derivative actions do not turn on the presence or absence of fiduciary duties. Instead, they 
focus on whether the basis of the complaint is an injury to the corporation. Indeed, this court has 
barred suit by guarantors, who are usually owed no fiduciary duties, where they did not suffer an 
                                                 
1 In deciding whether an action is derivative or individual, courts often look to the relevant state law. See 
Whelan v. Abell, 953 F.2d 663, 672 (D.C. Cir. 1992) (“[T]he question whether the suit should be brought by 
the [individuals] or the [c]orporation really depends . . . on considerations and conventions of corporate law 
. . . .”). Free Access does not identify what state law applies here, but it does not dispute that the action it has 
brought is individual rather than derivative in nature. We do not opine on whether Free Access could bring 
a derivative action as an option-holder. 
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“injury independent of the firm’s” injury. Labovitz, 172 F.3d at 902 (quoting Mid-State Fertilizer 
Co. v. Exch. Nat’l Bank of Chi., 877 F.2d 1333, 1336 (7th Cir. 1989)). And courts bar suits by 
creditors, who likewise are not generally protected by fiduciary duties, “unless the alleged 
misconduct causes harm to them separate and distinct from the injury” to the corporation. Pagán v. 
Calderón, 448 F.3d 16, 29 (1st Cir. 2006). Because Free Access has not alleged an injury that is 
independent of the injury suffered by the LPTV stations in which it owns options, we dismiss the 
petition for review. 
 
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is 
directed to withhold issuance of the mandate herein until seven days after resolution of any timely 
petition for rehearing or rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1). 
 
 
Per Curiam 
 
 
FOR THE COURT: 
Mark J. Langer, Clerk 
 
BY: /s/ 
        Ken Meadows 
Deputy Clerk  
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