Black Citizens for a Fair Media v. F.C.C., s. 81-1710

• Decision Date: 07 October 1983
• Docket Number: Nos. 81-1710,81-2277,s. 81-1710
• Citation: 719 F.2d 407
• Parties: BLACK CITIZENS FOR A FAIR MEDIA, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., National Association of Broadcasters, National Radio Broadcasters Association, Office of Communication of the United Church of Christ, CBS, Inc., Argonaut Broadcasting Company, et al., Intervenors. Henry GELLER, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Association of Broadcasters, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 407

719 F.2d 407

231 U.S.App.D.C. 163

BLACK CITIZENS FOR A FAIR MEDIA, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

American Broadcasting Companies, Inc., National Association

of Broadcasters, National Radio Broadcasters Association,

Office of Communication of the United Church of Christ, CBS,

Inc., Argonaut Broadcasting Company, et al., Intervenors.

Henry GELLER, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

National Association of Broadcasters, Intervenor.

Nos. 81-1710, 81-2277.

United States Court of Appeals District of Columbia Circuit.

Argued May 24, 1982.

Decided Oct. 7, 1983.

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

Jeffrey H. Olson, Washington, D.C., with whom Karen Peltz Strauss, Washington, D.C., was on the brief, for petitioners in 81-1710.

Henry Geller, Washington, D.C. and Ira Barron were on the brief, for petitioner in 81-2277.

Gregory M. Christopher, Counsel, F.C.C., Washington, D.C., with whom Stephen A. Sharp, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Barry Grossman and Stephen F. Ross, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents. Marion L. Jetton and Margaret G. Halpern, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent, USA.

Stephen A. Weiswasser, Washington, D.C., with whom J. Roger Wollenberg and Susan Low Bloch for CBS, Inc., and James A. McKenna, Jr., Carl R. Ramey and Douglas S. Land for ABC, Inc., et al., and Erwin G. Krasnow and Barry D. Umansky, Washington, D.C., for National Association of Broadcasters and Thomas Schattenfield, Washington, D.C., for National Radio Broadcasters Association, were on the brief, for intervenors, CBS, Inc., et al., in 81-1710 and 81-2277.

Donna A. Demac, New York City, was on the statement in lieu of brief for intervenor, Office of Communication of the United Church of Christ in 81-1710.

Robert H. Bohn, Jr., and Honora Kaplan, Boston, Mass., were on the brief, for amicus curiae, Action for Children's Television urging remand in 81-1710.

Before WRIGHT and BORK, Circuit Judges, and JAMESON, ^* Senior District Judge for the District of Montana.

Opinion for the Court filed by Circuit Judge BORK.

Dissenting opinion filed by Circuit Judge WRIGHT.

BORK, Circuit Judge:

Petitioners, Black Citizens for a Fair Media, et al., ¹ challenge the Federal Communications Commission's decision to adopt a simplified renewal application for radio and television broadcast licensees. This decision, made after a full rulemaking procedure, effectively eliminates from the license renewal application certain information which the Commission had previously required licensees to submit. Petitioners claim that this action is contrary to the substantive requirements of the Communications Act and that, in making the decision, the FCC failed to comply with the reasoned decision-making requirements of the Administrative Procedure Act and the Communications Act. We hold to the contrary and affirm the action of the Commission.

I.

This case is a companion to Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983), and National Black Media Coalition v. FCC, 706 F.2d 1224 (D.C.Cir.1983). All three cases involve challenges to the effort of the Federal Communications Commission ("FCC" or "Commission") to reduce the regulatory burden on television and radio licensees.

In July 1980, the Commission filed a Notice of Proposed Rulemaking "to determine whether the public interest would be served by a revamping of [the] broadcast renewal application procedures." Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, FCC No. 80-327 (July 11, 1980), at 1 ("Notice "). ² This Notice, which resulted in the decision now being challenged, proposed a new procedure for renewing broadcast licenses. In the past, licensees were required to file extensive applications ³ containing, for example, such information as proposed non-entertainment and children's programming, the number of public service announcements which were broadcast, and the degree of compliance with FCC requirements for ascertainment of community needs and interests.

After reviewing the mechanics of this system, the FCC stated that its experience

has shown that most licensees meet or exceed our operating guidelines .... [W]e have found that the best vehicle for bringing violations to our attention has been public participation in our processes through petitions to deny, informal objections, and complaints.

Notice at 2. The FCC concluded that the application might place an unnecessary administrative and paperwork burden on both licensees and the Commission.

The Notice therefore proposed a new application system that would consist of five different review components. First, all licensees applying for renewal would submit a postcard-sized simplified renewal application containing answers to five questions. ⁴

The second component is a long form audit--essentially the old renewal form--which would be sent to at least 5% of all television and non-commercial radio stations. (The FCC represents that, in fact, it has been selecting 10% of the eligible licensees for the long-form audit since the new procedures went into effect. Brief for FCC at 9 n. 3.) Third, the FCC would continue to require licensees to make publicly available information as to how the licensees ascertained the problems and needs of their communities and the manner in which the licensee's programming addressed these problems and needs. Television stations would also have to include programming logs and programming "promises" in their public files. ⁵ The FCC stated its belief that this public file would make sufficient information available to permit the public to test any concerns regarding a licensee's fulfillment of the public service requirement ⁶--an important consideration given the Commission's reliance on public participation to bring violations to the Commission's attention.

Fourth, the FCC's Field Operations Bureau would conduct random audits of licensees to inspect technical operations and to insure that all required information was being made available to the public. Fifth, the Broadcast Bureau would conduct on-site inspections into charges of licensee misconduct. The Bureau would also have the power to conduct audits of licensees who submit problem applications. Other licensees might be audited on a random basis.

On May 11, 1981, after receiving numerous comments from various broadcast groups and "public interest" media groups, the FCC issued its report and order substantially adopting the proposals as put forward in the Notice. Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad.Reg.2d (P & F) 740 (1981) ("Decision "). In promulgating the new system, the FCC stressed that the rulemaking "proceeding was never intended to change our current substantive requirements for the broadcast industry, and it does not alter the substance of licensee obligations to serve the public interest." Id. at 748. Reconsideration of this decision was then sought by petitioner Henry Geller, but was denied. Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 87 F.C.C.2d 1127 (1981) ("Reconsideration Decision"). Petitioners now appeal to this court.

II.

Petitioners challenge the FCC's adoption of the new license renewal system on two grounds. First, they contend that the FCC's action violates the mandate of the Communications Act which requires the Commission to find that "the public interest, convenience, and necessity would be served" by a renewal of a broadcast license. 47 U.S.C. Sec. 307(d) (1976), as amended by the Communications Amendments Act of 1982, Pub.L. No. 97-259, Sec. 112, 96 Stat 1087, 1093 (to be codified at 47 U.S.C. Sec. 307(c)). Petitioners say the FCC is unable to make that affirmative determination without the inclusion of program-related questions in the renewal form. Second, petitioners argue that even if the FCC has the discretion to alter the renewal procedures in the proposed manner, the Commission failed to comply with the reasoned decision-making requirements of the Communications Act and Administrative Procedure Act. We address these points in order.

A.

In determining the mandate of the Communications Act, 47 U.S.C. Sec. 151 et seq. (1976 & Supp. V 1981), this court must focus on the language of the Act itself, with due deference to the Commission's interpretation of its own organic law. Subject to the review we discuss below, the FCC is entitled to reconsider and revise its views as to the public interest and the means needed to protect that interest, though it must give a sufficient explanation of that change. See Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37, 49 (D.C.Cir.1978). The language of the Act imposes few specific requirements and the FCC is generally given broad discretion. The public-interest standard is "a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). For that reason, petitioners' reliance on past FCC statements of its mandate is misplaced.

The key section which petitioners invoke in support of their argument is section 307(c) ⁷ which provides in part:

Upon the expiration of any license, upon application therefor, a renewal of such license may be granted from time to time for a term of not to exceed five years in the case of television broadcasting licenses, for a term of not to exceed seven years in the case of radio broadcasting station licenses, and for a...