American Radio Relay League, Inc. v. F. C. C., 78-1853

• Decision Date: 22 February 1980
• Docket Number: No. 78-1853,78-1853
• Citation: 617 F.2d 875,199 U.S.App.D.C. 293
• Parties: The AMERICAN RADIO RELAY LEAGUE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 875

617 F.2d 875

199 U.S.App.D.C. 293

The AMERICAN RADIO RELAY LEAGUE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

No. 78-1853.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 12, 1979.

Decided Feb. 22, 1980.

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

Robert M. Booth, Jr., Washington, D. C., with whom Julian P. Freret, Washington, D. C., was on brief, for petitioner.

Gregory M. Christopher, Counsel, F. C. C., Washington, D. C., for respondents.

Robert R. Bruce, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, C. Grey Pash, Jr., Counsel, F. C. C., and Robert B. Nicholson and Michael J. Pugh, Attys., U. S. Dept. of Justice, Washington, D. C., were on the brief, for respondents.

Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and HAROLD H. GREENE, ^* U.S. District Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In an effort to combat the recurring problem of Citizens Band (CB) radio interference with television reception, the Federal Communications Commission has adopted rules that generally prohibit the manufacture and sale of certain amplifiers that can be used by CB operators. The American Radio Relay League, Inc. (League), a nonprofit association of amateur radio operators, claims that these rules unnecessarily infringe upon the ability of radio amateurs to engage in their pastime, and that the rules are therefore arbitrary, capricious, and unreasonable. We reject the League's argument and uphold the Commission's rules.

I. BACKGROUND

In part to overcome the "cacophony of competing voices" using the radio airwaves, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 376, 89 S.Ct. 1794, 1799, 23 L.Ed.2d 371 (1969), Congress enacted a series of statutes, culminating in the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-609 (1976). As part of the regulatory scheme, Congress created the Federal Communications Commission and gave that agency broad authority to regulate the use of space on the radio spectrum. Congress charged the Commission "to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service," id. § 151, and to "encourage the larger and more effective use of radio in the public interest," id. § 303(g). The Commission has general authority to carry out this mandate through the promulgation of rules and regulations. Id. §§ 154(i), 303(r). More specifically, it is authorized to issue regulations "to prevent interference between stations," id. § 303(f), and

consistent with the public interest, convenience, and necessity, (to) make reasonable regulations governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications. Such regulations shall be applicable to the manufacture, import, sale, offer for sale, shipment, or use of such devices.

Id. § 302a(a).

In the exercise of its regulatory authority, the Commission has designated over 20 frequency bands, including the bands from 28 to 29 megahertz (MHz), ¹ for use by amateur ("ham") radio operators. See 47 C.F.R. § 97.61(a) (1978). In general, amateurs may use up to 1000 watts of transmitting power. See id. § 97.67. CB operators, on the other hand, may only use a frequency of 27 MHz, ² id. § 95.401 (CB rule 17), and are generally prohibited from using more than 4 watts of power, id. (CB rule 20). ³

The use of CB radios has expanded dramatically in the last ten years. From 1974 through 1978 alone, the number of licensed CB operators grew from fewer than 800,000 to more than 14,000,000. Brief for Respondents at 2 n.1. ⁴ Unfortunately, however, the increasing interest in this activity has generated an unwelcome byproduct: interference with television reception on certain channels. This interference is primarily caused by CB operators who unlawfully use radio power amplifiers to increase the transmitting power of their CB units far beyond the authorized level of 4 watts. See Amendment of Parts 2 & 97 of Commission Rules, 67 F.C.C.2d 939, 940 (1978) (hereinafter cited as Report & Order Adopting 1978 Rules ). The interference problem has grown to the point that, over a year's time, some 3,000,000 to 21,000,000 persons may experience difficulties in television reception. See id.

After an earlier limited effort to combat the interference problem, see Amendment of Part 2 of Commission Rules, 23 F.C.C.2d 79 (1970), the Commission in 1975 attempted to prohibit not only the use but also the marketing of the offensive amplifying equipment. See Amendment of Parts 2 & 95 of Commission Rules, 50 F.C.C.2d 310, amended, 53 F.C.C.2d 66 (1975). In particular, the 1975 rules proscribed (1) the use of any external radio frequency power amplifier (external amplifier) ⁵ with a CB radio and (2) the marketing of any external amplifier capable of use between 24 and 35 MHz, frequencies spanning the 27 MHz CB frequency, ⁶ unless the amplifier could also be used on four amateur radio bands at specified frequencies. See id. Unfortunately, the 1975 Commission action proved ineffective. Manufacturers and suppliers evaded the marketing rule by manufacturing and selling "broad-band linear amplifiers." These amplifiers, because they could be used on the four specified amateur bands, were technically outside the scope of the marketing prohibition. In fact, however, they were manufactured and marketed almost exclusively for use on the 27 MHz CB frequency, and large numbers of CB operators bought these amplifiers for illegal use with their CB units. See Report & Order Adopting 1978 Rules, 67 F.C.C.2d at 941.

With the interference problem continuing to grow at an alarming rate, the Commission acted again in 1978, this time adopting the more stringent rules that are before us today. See Report & Order Adopting 1978 Rules, 67 F.C.C.2d 939. In general, these rules prohibit the manufacture and marketing of any external amplifier capable of use between 24 and 35 MHz, regardless of whether it can also be used on other frequencies.

II. STANDARD OF REVIEW

The administrative action we review ⁷ in this case is "notice-and-comment" rulemaking, conducted pursuant to section 553 of the Administrative Procedure Act, 5 U.S.C. § 553 (1976). ⁸ Our review of such rulemaking is generally quite limited. Under section 706(2)(A) of the Act, our only role is to decide whether an agency's rulemaking was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," id. § 706(2)(A). As this court noted in Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976), "This standard of review is a highly deferential one. It presumes agency action to be valid. Moreover, it forbids the court's substituting its judgment for that of the agency, and requires affirmance if a rational basis exists for the agency's decision." Id. at 406, 541 F.2d at 34 (citations omitted). Thus, although we are not obliged to "rubber-stamp the agency decision," id., our task ends when we find that the agency has engaged in reasoned decisionmaking within the scope of its congressional mandate.

The League, while not disputing the general applicability of this deferential standard for reviewing agency rules, contends that the present case demands a more exacting scrutiny. The League points to the language of 47 U.S.C. § 302a(a) (1976), which authorizes the Commission to make "reasonable regulations governing the interference potential of (radio) devices." Id. (emphasis added). The League argues that the statute's express requirement of reasonableness demands something more than would otherwise be required of an agency adopting rules and that our standard of review should be correspondingly more searching.

We fail to find significance in the fact that Congress said "reasonable regulations" instead of simply "regulations." To be sure, it is a recognized principle that "(a) statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . ." 2A Sutherland Statutory Construction § 46.06, at 63 (4th ed. C. Sands 1973). Nonetheless, courts will not give independent meaning to a word "where it is apparent from the context of the act that the word is surplusage." Id. § 47.37, at 167 (footnote omitted). ⁹ Here, the word "reasonable" clearly is nothing more than surplusage, for we cannot assume that Congress would ever intend anything other than reasonable agency action. Indeed, the very nature of our review under the typical "arbitrary and capricious" standard demands that we determine whether the agency has acted within the bounds of reason. As Professor Davis has stated, "A legislative rule is valid and is as binding upon a court as a statute if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable. The requirement of reasonableness stems . . . from the idea of statutory interpretation that legislative bodies are assumed to intend to avoid the delegation of power to act unreasonably." 1 K. Davis, Administrative Law Treatise § 5.03, at 299 (1958). Whether we say a rule must be "reasonable," must have a "rational basis," or must not be "arbitrary or capricious," our standard for reviewing the rule is the same: we must defer to the agency rulemakers unless the challenger shows that the agency has abused the broad policymaking discretion granted it by Congress and thereby acted beyond the scope of its rulemaking authority.

III. ANALYSIS

One of the two rules being challenged requires type acceptance ¹⁰ as a precondition to the manufacture,...