707 F.2d 1413 (D.C. Cir. 1983), 81-1032, Office of Communication of United Church of Christ v. F.C.C.

Docket Nº:81-1032, 81-1463, 81-2127 and 81-2134.
Citation:707 F.2d 1413
Party Name:OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., National Association of Broadcasters, Radio Station Licensees, American Broadcasting Companies, Inc., National Radio Broadcasters Association, Mutual Broadcasting System, Inc., Black Citizens
Case Date:May 10, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1413

707 F.2d 1413 (D.C. Cir. 1983)

OFFICE OF COMMUNICATION OF the UNITED CHURCH OF CHRIST, Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

CBS, Inc., National Association of Broadcasters, Radio

Station Licensees, American Broadcasting Companies, Inc.,

National Radio Broadcasters Association, Mutual Broadcasting

System, Inc., Black Citizens for Fair Media, Action for

Children's Television, National Organization for Women,

Empowerment Through Communications, Citizens Committee on

the Media, Tribune Company, National Organization for

Women--New York Chapter, National Organization for

Women--Essex County, New Jersey Chapter, Office of

Communication of the Episcopal Church, WNCN Listeners Guild,

Inc., Episcopal Radio-Television Foundation, Department of

Communication of the United States Catholic Conference, and

Communications Commission of the National Council of

Churches, Intervenors.

CLASSICAL RADIO FOR CONNECTICUT, INC., Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

National Citizens Committee for Broadcasting, National

Association of Broadcasters, and American Legal

Foundation, Intervenors.

Henry GELLER, Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

CBS, Inc., American Broadcasting Companies, Inc. and

National Association of Broadcasters, Intervenors.

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE

et al., Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

American Broadcasting Companies, Inc. and National

Association of Broadcasters, Intervenors.

Nos. 81-1032, 81-1463, 81-2127 and 81-2134.

United States Court of Appeals, District of Columbia Circuit

May 10, 1983

Argued May 24, 1982.

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Petitions for Review of an Order of the Federal Communications commission.

Earle K. Moore, New York City, with whom Donna A. Demac and David M. Rice, New York City, were on the brief, for petitioner Office of Communication of the United Church of Christ. Andrew Jay Schwartzman and Heidi P. Sanchez, New York City, entered appearances for petitioner Office of Communication of the United Church of Christ.

Michael Botein, New York City, entered an appearance for petitioner Classical Radio for Connecticut, Inc.

Henry Geller, pro se, with whom Ira Barron, Claremont, Cal., was on the brief, for petitioner Henry Geller.

Wilhelmina Reuben Cooke, Jeffrey H. Olson, and Angela J. Campbell, Washington, D.C., were on the brief for petitioners N.A.A.C.P. et al.

Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., with whom Jane E. Mago, Michael Deuel Sullivan, C. Grey Pash, Jr., and Gregory M. Christopher, Counsel, F.C.C., Washington, D.C., were on the brief, for respondents. Lisa B. Margolis, Counsel, F.C.C., Washington, D.C., entered an appearance for respondent F.C.C. Barry Grossman and James H. Laskey, Attys., Dept. of Justice, Washington, D.C., entered appearances for respondent United States of America.

Timothy B. Dyk, Washington, D.C., with whom J. Roger Wollenberg and Bruce D. Ryan, Washington, D.C. (for CBS, Inc.), James A. McKenna, Jr., Carl R. Ramey, Washington, D.C., and Douglas S. Land, New York City (for American Broadcasting Companies, Inc.), Bruce D. Goodman and Ilene R. Price (for Mutual Broadcasting System, Inc.), Erwin G. Krasnow and Barry D. Umansky, Washington, D.C. (for National Ass'n of Broadcasters), Thomas Schattenfield, Washington, D.C. (for National Radio Broadcasters Ass'n), and Robert A. Beizer, Washington, D.C. (for Tribune Co.) were on the joint brief, for intervenors CBS, Inc. et al. Robert W. Coll, Washington, D.C., entered an appearance for intervenor American Broadcasting Companies, Inc. Susan A. Marshall, Washington, D.C., entered an appearance for intervenor National Radio Broadcasters Ass'n.

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Richard A. Helmick, Washington, D.C., entered an appearance for intervenor Mutual Broadcasting System, Inc. Steven M. Harris, Washington, D.C., entered an appearance for intervenor Tribune Co.

Charles M. Firestone, Los Angeles, Cal., was on the brief for intervenors National Citizens Committee for Broadcasting et al.

Donna A. Demac, New York City, was on the statement in lieu of brief for intervenors Communications Commission of the National Council of Churches et al.

Franklin K. Moss, New York City, entered an appearance for intervenor WNCN Listeners Guild, Inc.

Robert W. Coll and Carl R. Ramey, Washington, D.C., entered appearances for intervenor Radio Station Licensees.

Daniel J. Popeo, Utica, N.Y., entered an appearance for intervenor American Legal Foundation.

William H. Mellor, III, Denver, Colo., was on the brief for amici curiae Mountain States Legal Foundation et al., urging affirmance.

John M. Cutler, Chicago, Ill., and David Crump, Raleigh, N.C., were on the brief for amicus curiae Legal Foundation of America, urging affirmance.

Andrew Jay Schwartzman, New York City, was on the brief for amicus curiae Public Media Center, urging reversal and remand.

Before WRIGHT and BORK, Circuit Judges, and JAMESON, [*] Senior District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Concurring statement filed by Circuit Judge BORK.

J. SKELLY WRIGHT, Circuit Judge:

In these consolidated petitions for review we are asked to decide whether the Federal Communications Commission may, consistent with its statutory obligations, undertake a sweeping deregulation of the commercial radio industry. The Commission's deregulation orders culminate a three-year, extensive inquiry into the continued value and efficacy of the existing radio regulatory scheme in light of structural changes in the industry and a renewed determination to eliminate unnecessary regulation. The repudiation in this one rulemaking proceeding of so many long-standing policies and rules necessitates close judicial scrutiny to ensure that the Commission has remained faithful to the pertinent directives of both the Communications Act and the Administrative Procedure Act. For the reasons detailed below and with several serious reservations, we uphold most of the actions taken by the Commission. We remand only those portions of the Commission's orders that eliminate the requirement of programming logs. On remand we direct the Commission to reconsider its decision, this time giving adequate attention to the usefulness of programming logs in the newly-revised, overall scheme of broadcast regulation.

I. BACKGROUND

A. Procedural History

On September 6, 1979 the Commission instituted rule-making proceedings to consider far-ranging proposals for rule and policy changes that would effect a substantial deregulation of commercial broadcast radio. 1 In its Notice of Inquiry and Proposed Rulemaking, Deregulation of Radio, 733 FCC2d 457 (1979) (Notice ) (Joint Appendix (JA) 195), the Commission identified as its

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goal the "potential reduction or elimination of regulations no longer appropriate to certain marketplace conditions and whose elimination would be consistent with the Commission's public interest obligations." Id. at 458, JA 196. The Notice provided a detailed economic analysis of the current conditions in the radio industry, concluding that increased competition and diversity among radio stations necessitated a reevaluation of the Commission's entire regulatory approach. The Commission identified four areas in which significant deregulatory steps might be appropriate: (1) the guidelines encouraging radio licensees to present certain amounts of nonentertainment programming to meet the needs and problems of their communities; (2) the ascertainment procedures by which the licensees must identify those community needs and problems; (3) the guidelines that serve to limit the amount of radio broadcast time devoted to commercials; and (4) the requirement that radio stations maintain and make available program logs that record information about each program or commercial aired during the broadcast day. 2 After setting forth a number of alternative options in each area of regulation, the Notice concluded by indicating the Commission's initial preferences and by soliciting both comments and empirical information from interested parties. See Notice, 73 FCC2d at 525-528, JA 263-266.

Public response was swift and vociferous; the Commission received over 20,000 comments and over 2,000 reply comments. 3 The majority of the comments predominantly opposed deregulation. Report and Order, Deregulation of Radio, 84 FCC2d 968, 972 (1981) (Report and Order ) (JA 31, 35). The American Civil Liberties Union and other public interest groups filed a motion for rescission of the Notice and for other procedural relief, protesting the limited comment period, the unclear scope of the Notice, and the lack of adequate evidentiary support. The Commission largely denied the request, but did release additional data and explanatory materials. 4 On January 14, 1981 the Commission adopted its Report and Order, taking the following actions in the four areas of regulation:

(1) eliminating quantitative guidelines for nonentertainment programming and retaining a modified and more limited obligation to provide such programming;

(2) eliminating formal ascertainment procedures;

(3) eliminating quantitative guidelines for commercial time; and

(4) eliminating program logs requirements.

The Report and Order provided extensive discussion of each decision, including, in the Appendices, separate explanations of the history of Commission policy and the major issues raised by the filed...

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