American Civil Liberties Union v. F. C. C.

• Decision Date: 16 September 1975
• Docket Number: No. 73-2886,73-2886
• Citation: 523 F.2d 1344
• Parties: The AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of America, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1344

523 F.2d 1344

The AMERICAN CIVIL LIBERTIES UNION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, and United States of

America, Respondents.

No. 73-2886.

United States Court of Appeals, Ninth Circuit.

Sept. 16, 1975.

Dennis Grossman (argued), American Civil Liberties Union, New York City, for petitioner.

Gregoary M. Christopher (argued), Counsel, Federal Communications Commission, Washington, D. C., for respondents.

OPINION

Before CHAMBERS, TRASK and SNEED, Circuit Judges.

SNEED, Circuit Judge:

The American Civil Liberties Union (ACLU) brings this petition to review two specific aspects of the Federal Communications Commission's order promulgating rules and regulations pertaining to cable television (CATV) set forth in 36 F.C.C.2d 141 (1972) with the reconsideration appearing in 36 F.C.C.2d 326 (1972). The two aspects challenged are the failure of the Commission (1) to impose common carrier obligations on cable television access channels and (2) to limit cablecasting by the cable owner to one channel. We affirm the order and deny the petition for review.

I.

Jurisdiction and Venue.

Jurisdiction to consider ACLU's petition rests on 28 U.S.C. § 2342, 28 U.S.C. § 2344, and 47 U.S.C. § 402(a). In an earlier proceeding involving this petition before the Court of Appeals, District of Columbia Circuit, the Commission moved to dismiss the petition as one not timely filed, and, in the alternative, to transfer the petition to this circuit pursuant to28 U.S.C. § 2112(a) (1970). The Court of Appeals of the District denied the motion to dismiss and transferred the petition to this circuit. 158 U.S.App.D.C. 344, 486 F.2d 411 (1973). Although the Commission suggests that both dispositions be overturned by this court, we declined to do so. A proper concern for promoting an economy of judicial effort, whether that be expressed as the law of the case or otherwise, plainly requires that we not relitigate the issues raised by the Commission in the Court of Appeals of the District.

We take this position even though the circumstances upon which the Court of Appeals of the District relied in granting the Commission's motion to transfer to this circuit have changed. Specifically, the Commission's motion under 28 U.S.C. § 2112(a) (1970) ¹ was based upon the fact that certain petitions for review "with respect to the same order" previously had been filed in this circuit. The Commission argued that since the proceedings commenced by these petitions were "first instituted" it was the duty of the Court of Appeals of the District to transfer these proceedings to this circuit. This position was adopted by the Court of Appeals of the District. It now appears, however, that these "first instituted" proceedings were remanded to the Commission by this court on the Commission's motion several months prior to oral argument in this case. We do not believe this defeats our jurisdiction, makes improper venue in this court under 28 U.S.C. § 2343, or requires relitigating the issues of which the Court of Appeals of the District previously disposed. 158 U.S.App.D.C. 344, 486 F.2d 411 (1973). Once a valid transfer pursuant to 28 U.S.C. § 2112(a) (1970) has been accomplished, its validity ordinarily should not be impaired by the subsequent fate of the proceeding "first instituted." ²

II.

Standing.

The Commission also challenges the standing of the ACLU to bring this petition for review under 5 U.S.C. § 702 ³ and 28 U.S.C. § 2344. ⁴ The ACLU, asserts the Commission, has suffered no legal wrong nor been "adversely affected or aggrieved by agency action." Assuming that standing to appear before the Commission and standing to seek judicial review of a Commission order are governed by the same standard (an assumption heretofore recognized by the Court of Appeals of the District of Columbia Circuit in Office of Communication of United Church of Christ v. F. C. C., 123 U.S.App.D.C. 328, 359 F.2d 994 (1966), n. 8), the Commission claim comes rather late inasmuch as the ACLU appears to have participated vigorously in the rulemaking procedure which led to the order here being reviewed. However, our resolution of the standing issue is not influenced by this delay.

We are guided by the fact that the listening and viewing audience of a station, acting through a legitimate representative, has been accorded standing to intervene before the Commission in that station's license renewal proceeding. Office of Communication of United Church of Christ v. F. C. C., supra. The interest of the "consumer" was held sufficient to justify standing. Furthermore, we are required to interpret 5 U.S.C. § 702 as did the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). There the Court said that persons have "standing to obtain judicial review of federal agency action under § 10 of the APA (5 U.S.C. § 702) where they had alleged that the challenged action had caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." Id. at 733, 92 S.Ct. at 1365. The necessity of an "injury in fact," the Court continued, is not eliminated by the existence of an "interest in a problem," Id. at 739; one "seeking review must allege facts showing that he is himself adversely affected . . .". Id. at 740, 92 S.Ct. at 1368.

ACLU, a membership corporation under New York law, in effect alleges that it represents its members who have suffered an injury in fact because of the two aspects of the Commission's order here being challenged consisting of a failure to maximize the number of sources of programming to be carried by cable television. This injury is plainly within the zone of interests to be protected or regulated, asserts the ACLU, because maximization of sources of programming is "a basic tenet of national communications policy," First Report and Order on CATV, 20 F.C.C.2d 201, 205 (1969), and consistent with the purposes of the First Amendment.

While these allegations indicate an injury no different from that which would be suffered by all "consumers" of the product of CATV, that alone is not sufficient to preclude standing. See United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Nor are we prepared to assert that ACLU's allegations merely restate an "interest in a problem," Viz. the regulation of cable television. The issue before us is different. It is simply whether the record available to us sufficiently demonstrates the Existence of the alleged injury. Unlike the situation which exists in many environmental cases, for example, in which the alleged injury is so palpable as to be subject to judicial notice, we here are confronted with circumstances in which the truth of the allegation of injury in fact can only be determined by examining the merits of the asserted claim. If the ACLU's petition for review is meritorious it follows that its members have suffered an injury in fact. Quite frequently, and perhaps usually, the determination of the truth of the allegation of an injury in fact does not require an examination of the merits of the claim asserted. Under circumstances frequently existing, the issue of standing can be regarded as independent of the merits. Such is not the case here, however.

The result is that there is no escape from examining the merits. If ACLU's claim is meritorious, standing exists; if not, standing not only fails but also ceases to be relevant. ⁵

III.

The Merits.

A. Mode of Regulation.

All recognize that "Cable television offers the technological and economic potential of an economy of abundance." 25 F.C.C.2d 38, 39 (1970). This is true because of the large number of channels which it is technologically possible for a single cable system to possess. Systems having no less than 60 channels appear to have been installed, 36 F.C.C.2d 141, 190 (1972), although a "20-channel" system is generally adequate to meet presently foreseeable demand. 46 F.C.C.2d 175, 180 (1974). Carriage of television broadcast signals, the original function of cable systems, cannot absorb all of these channels. The channels not employed in the carriage of television broadcast signals provide the opportunity for the development of a medium of communication not precisely like any with which we are presently familiar. The Report to the President by the Cabinet Committee on Cable Communications (1974) put the prospects this way:

"We believe that cable development has the potential of creating an electronic medium of communications more diverse, more pluralistic, and more open, more like the print and film media than our present broadcast system. It could provide minority groups, ethnic groups, the aged, the young, or people living in the same neighborhood an opportunity to express, and see expressed, their own views. Yet it would also enable all of these groups to be exposed to the views of others, free of the homogeneity which characterizes contemporary television programming." Id. at 15.

Future prospects are not present reality, however. A period of growth and development is needed. The Commission in the order here challenged attempted to establish, in its words, "a basic framework within which we may measure cable's technological promise, assess its role in our nationwide scheme of communications, and learn how to adapt its potential for energetic growth to serve the public." 36 F.C.C.2d at 189.

The envisioned "basic framework" requires the allocation of the available channels between the carriage of television broadcast signals, 47 CFR §§ 76.51-76.55, origination cablecasting (under certain circumstances) on "one or more designated channels," 47 CFR § 76.201, and so-called "access channel" use, 47 CFR § 76.251. The "access channels" consist of at least one "public access channel," "education access channel," and "local government access channel,"...