Action for Children's Television v. F.C.C.

• Decision Date: 26 June 1987
• Docket Number: No. 86-1425,86-1425
• Parties: , 56 USLW 2007, 14 Media L. Rep. 1363 ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Cox Communications, Inc., Capital Cities/ABC, Inc., CBS, Inc., Tribune Broadcasting Co., The Association of Independent Television Stations, Inc., National Association of Broadcasters, John W. DeTar, National Broadcasting Company, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 741

821 F.2d 741

261 U.S.App.D.C. 253, 56 USLW 2007,

14 Media L. Rep. 1363

ACTION FOR CHILDREN'S TELEVISION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of

America, Respondents,

Cox Communications, Inc., Capital Cities/ABC, Inc., CBS,

Inc., Tribune Broadcasting Co., The Association of

Independent Television Stations, Inc., National Association

of Broadcasters, John W. DeTar, National Broadcasting

Company, Inc., Intervenors.

No. 86-1425.

United States Court of Appeals, District of Columbia Circuit.

Argued March 30, 1987.

Decided June 26, 1987.

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

Daniel Warshawsky and Henry Geller, Washington, D.C., with whom Douglas K. Parker and Donna Lampert were on the brief, for petitioners.

C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Diane S. Killory, General Counsel, Daniel M. Armstrong, Associate General Counsel, F.C.C., Catherine G. O'Sullivan and Donald S. Clark, Attys., Dept. of Justice were on the brief, for respondents.

Timothy B. Dyk, Washington, D.C., with whom Philip D. Anker, Steven A. Schneider, Henry L. Baumann, Barry D. Umansky and J. Laurent Scharff were on the brief for intervenors, CBS, Inc., et al.

Werner K. Hartenberger, Washington, D.C., entered an appearance for intervenor, Cox Communications, Inc.

J. Roger Wollenberg and Joel Rosenbloom, Washington D.C., entered appearances for intervenor, Capital Cities/ABC, Inc.

Robert A. Beizer, Washington, D.C., entered an appearance for intervenor, Tribune Broadcasting Co.

David G. Rozzelle and Kathryn Riley Dole, Washington, D.C., entered appearances for intervenor, John W. DeTar.

Before EDWARDS and STARR, Circuit Judges, and SWYGERT, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This case brings before us two issues pertaining to the Federal Communications Commission's regulation of television broadcasting. Petitioners Action for Children's Television and Black Citizens for a Fair Media ("ACT" or "petitioners") allege, first, that the Commission failed to engage in "reasoned decisionmaking" in withdrawing its long-standing children's television commercialization guidelines. Second, petitioners argue that the Commission failed adequately to justify its replacement of comprehensive television program logging requirements with a less exacting requirement of quarterly lists of significant "issue-oriented" programming.

We conclude that the Commission has failed sufficiently to justify its action deregulating children's television, but that it has substantially supported the revision of television programming log requirements. Consequently, we remand the case to the Commission for further explanation of its elimination of the children's television commercialization guidelines, but uphold its decision to alter program logkeeping procedures.

I

A

The special needs of children in television's vast audience have engaged the FCC's attention for over 15 years. Since 1971, the Commission has striven to ensure that children's television programming and commercialization reflect the "high public interest considerations involved in the use of television, perhaps the most powerful communications medium ever devised, in relation to a large and important segment of the audience, the nation's children." See Notice of Inquiry and Notice of Proposed Rule Making, 28 F.C.C.2d 368, 369-70 (1971). The Commission published an exhaustive report in 1974, concluding that because of their youth and inexperience children are "far more trusting of and vulnerable to commercial 'pitches' than are adults" and that "very young children cannot distinguish conceptually between programming and advertising." Children's Television Report and Policy Statement, 50 F.C.C.2d 1, 11 (1974) ("1974 Report"). To prevent advertisers from taking advantage of children's lack of commercial savvy, the Commission adopted (1) specific guidelines on the permissible level of commercialization in children's programming and (2) strict requirements that broadcasters maintain adequate separation between program content and commercial messages. Id. at 15-16. ¹ In establishing both requirements, the Commission explicitly mentioned and relied upon the National Association of Broadcasters' ("NAB") self-imposed commercialization guidelines as a benchmark for regulatory action. Id. at 12, 14.

The FCC's special treatment of children's television did not end, however, with its extensive 1974 Report. Until recently, the Commission evinced a consistent interest in updating, reevaluating, and modifying its children's television guidelines. In 1975, for example, the FCC established a somewhat more stringent children's television examination procedure for station license renewal proceedings. Memorandum Opinion & Order, 53 F.C.C.2d 161 (1975). In 1978, it reevaluated and reaffirmed its commitment to specific advertising guidelines for children's television. Second Notice of Inquiry, 68 F.C.C.2d 1344 (1978). In 1979, the Commission staff undertook an extensive review of the policy, concluding that no changes were in order, Children's Television Task Force Report Docket 19142 (1979), a suggestion the Commission accepted. Notice of Proposed Rulemaking, 75 F.C.C.2d 138 (1979). As late as 1984, the Commission emphasized (albeit in reference to programming rather than commercialization) licensees' "continuing duty ... to examine the program needs of the child part of the audience." Children's Television Programming and Advertising Practices, 96 F.C.C.2d 634, 656 (1984), aff'd sub nom. ACT v. FCC, 756 F.2d 899 (D.C.Cir.1985).

In 1983, the Commission embarked upon a general program of deregulating the commercial and programming content of television. See Notice of Proposed Rulemaking, 94 F.C.C.2d 678 (August 4, 1983). After notice-and-comment proceedings, the Commission eliminated all quantitative commercial guidelines for television broadcasting. Revision of Programming and Commercialization Policies, Ascertainment Requirements, and Program Log Requirements for Commercial Television Stations, 98 F.C.C.2d 1076 (August 21, 1984) ("1984 Report"). The Commission found that "commercial levels will be effectively regulated by marketplace forces ... [and that] if stations exceed the tolerance level of viewers ... the market will regulate itself...." 1984 Report, 98 F.C.C.2d at 1105. The Commission reached this overall conclusion notwithstanding ACT's evidence, presented in the notice-and-comment proceedings, that market forces do not effectually regulate the commercial content of children's television. Indeed, the Commission's 1984 Report failed to address that evidence or, for that matter, even to mention the children's television commercialization policy.

This odd silence unsettled the friends and disturbed the foes of the Commission's deregulation policy. ACT immediately petitioned for reconsideration of the 1984 Report. NAB, in its filing supporting the Commission and opposing ACT's petition, requested the FCC to take an explicit stand with respect to the children's television commercialization guidelines.

Although ultimately rejecting ACT's petition for rehearing, the Commission did accept the invitation to modify the 1984 Report. See Memorandum Opinion and Order on Reconsideration of the Report, 104 F.C.C.2d 358, 372 (May 28, 1986) ("Revision"). Responding to NAB's call for clarification, the FCC indicated that the children's television commercialization guidelines had indeed been eliminated by the 1984 Report. The Commission set forth the following explanation:

Elimination of the policy is consistent with [the] Commission's general de-emphasis regarding quantitative guidelines engendered in the Report and Order. Moreover, the Commission has consistently noted the importance of advertising as a support mechanism for the presentation of children's programming.

Revision, 104 F.C.C.2d at 370-71 (footnote omitted). These two sentences, along with portions of two modest footnotes, constitute the entirety of the FCC's explanation of its elimination of children's television commercialization guidelines.

ACT assails this shift as arbitrary and capricious. As ACT sees it, the FCC's explanation is entirely mute with respect to the "market-failure" arguments that supported the children's commercialization guidelines in the first place. Inasmuch as the Commission has not examined such pivotal questions, ACT contends, the FCC has failed to provide a "reasoned basis" for its decision.

B

The second issue moves us beyond children's television to a broader focus on television regulation generally. The 1984 Report significantly relaxed recordkeeping requirements applicable to television station programming. Previously, as a corollary to the FCC's extensive pre-1984 quantitative programming guidelines, the Commission had required television stations to maintain comprehensive logs of all programming. With the elimination of quantitative guidelines, ² however, the Commission reasoned that "the [comprehensive] logging requirements no longer serve[] any regulatory purpose." 98 F.C.C.2d at 1108-09.

Nevertheless, the FCC did not eliminate entirely television program logging requirements. Rather, it opted to apply the program logging policy adopted in the FCC's general deregulation of radio broadcasting to the deregulation of television broadcasting. Id. at 1109. Under this policy, the Commission required television stations to maintain quarterly issues/programs lists containing "in narrative form, a brief description of at least five to ten issues to which the licensee gave particular attention...." Id. at 1108. In its revision order, the Commission augmented this logkeeping guideline with the requirement that stations maintain quarterly lists of programs that "have provided the most significant treatment of community issues." Revision, 104 F.C.C.2d at...