California Ass'n of Physically Handicapped, Inc. v. F.C.C., s. 86-1105

• Decision Date: 04 March 1988
• Docket Number: Nos. 86-1105,86-1321,s. 86-1105
• Citation: 840 F.2d 88
• Parties: 46 Fair Empl.Prac.Cas. 230, 45 Empl. Prac. Dec. P 37,838, 268 U.S.App.D.C. 208, 56 USLW 2524 CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC., et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Fox Television Stations, Inc., KTLA, Inc., National Broadcasting Co., Inc., RKO General, Inc., Community Television of Southern California, KCOP Television, Inc., CBS, Inc., Metromedia, Inc., Intervenors. CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC., et al., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Tribune Broadcasting Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 88

840 F.2d 88

46 Fair Empl.Prac.Cas. 230,

45 Empl. Prac. Dec. P 37,838, 268 U.S.App.D.C. 208,

56 USLW 2524

CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC.,

et al., Appellants,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee,

Fox Television Stations, Inc., KTLA, Inc., National

Broadcasting Co., Inc., RKO General, Inc., Community

Television of Southern California, KCOP Television, Inc.,

CBS, Inc., Metromedia, Inc., Intervenors.

CALIFORNIA ASSOCIATION OF THE PHYSICALLY HANDICAPPED, INC.,

et al., Appellants,

v.

FEDERAL COMMUNICATIONS COMMISSION, Appellee, Tribune Broadcasting Company, Intervenor.

Nos. 86-1105, 86-1321.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 15, 1987.

Decided March 4, 1988.

Stanley Fleishman, Beverly Hills, Cal., with whom Robert Lind, was on the brief, for appellants in Nos. 86-1105 and 86-1321.

C. Grey Pash, Jr., Counsel, F.C.C., with whom Diane S. Killory, General Counsel and Daniel M. Armstrong, Associate General Counsel, for the F.C.C., Washington, D.C., were on the brief, for appellee in Nos. 86-1105 and 86-1321.

Timothy B. Dyk, with whom Kerry W. Kircher, for CBS, Inc., Michael R. Gardner, and James P. Denvir, for Fox Television Stations, Inc., Richard S. Rodin, for KCOP Television, Inc., Robert A. Beizer, for KTLA Inc., Arthur B. Goodkind, for NBC Robert A. Beizer, Washington, D.C., was on the brief, for Intervenor Tribune Broadcasting Co. in No. 86-1321.

Inc., Jack N. Goodman, for RKO General, Inc., were on joint brief, for Intervenors CBS, Inc., et al., in No. 86-1105. Gregory C. Staple also entered an appearance, for NBC, Inc. Judith Barry Wish also entered an appearance, for CBS, Inc. Theodore D. Frank and Marilyn D. Sonn, were on the brief, for Intervenor Community Television of Southern California in No. 86-1105. Mania R. Baghadin, Washington, D.C., also entered an appearance for Community Television of Southern California.

Before SILBERMAN and D.H. GINSBURG, Circuit Judges, and KOZINSKI, ^* Circuit Judge, United States Court of Appeals for the Ninth Circuit.

Opinion for the Court filed by Circuit Judge KOZINSKI.

KOZINSKI, Circuit Judge:

We consider whether the Federal Communications Commission, in approving license renewals and transfers, must take into account the extent to which broadcasters caption ¹ television programs for hearing-impaired viewers and whether they have an equal employment opportunity program covering the handicapped.

FACTS

Appellant California Association of the Physically Handicapped, Inc. (CAPH) is a nonprofit corporation representing the interests of handicapped persons. Appellant Sue Gottfried is a deaf Los Angeles television viewer. Intervenors all hold television broadcasting licenses in the Los Angeles metropolitan area. In the two companion cases before us, appellants contend that the intervenors should be denied renewal or transfer of their licenses because they failed to caption a sufficient number of their programs for hearing-impaired viewers and refused to include handicapped persons in EEO programs covering women and minorities.

The first case, No. 86-1105, is a third-generation challenge to the renewal of licenses for Los Angeles television stations KCBS, KNBC, KTLA, KABC, KHJ, KTTV, KCOP and KCET. ² In the first generation, the FCC rejected appellants' petitions to deny those stations' 1977 license renewal applications. License Renewal Applications of Certain Television Stations Licensed for and Serving Los Angeles, California, 69 F.C.C.2d 451 (1978), reconsideration denied, 72 F.C.C.2d 273 (1979). On appeal, we affirmed as to the commercial stations but reversed as to KCET, a public broadcaster. Gottfried v. FCC, 655 F.2d 297 (D.C.Cir.1981). The Supreme Court granted certiorari as to KCET and reversed, upholding the FCC's decision. Community Television of So. Cal. v. Gottfried, 459 U.S. 498, 103 S.Ct. 885, 74 L.Ed.2d 705 (1983). ³

In the meantime, the FCC had rejected appellants' challenges to the stations' captioning and hiring practices in approving the stations' 1980 renewal applications, and we had dismissed the appeals as untimely. ⁴ In October 1983, after the Supreme Court's decision in Community Television, appellants began the third round of across-the- The Chief of the FCC Video Services Division rejected appellants' contentions as "the same arguments previously presented by them against the above-mentioned licensees and rejected by the Commission and the courts." Golden West Television, Inc., File No. BRCT-830801LP, Mimeo 3155, at 3 (Mass Media Bur. March 15, 1985); id. at 4. He concluded that the licensees were not obligated to undertake captioning or institute an EEO program covering the handicapped, and therefore denied appellants' petitions without further inquiry because their allegations did not raise a "substantial and material question" under 47 U.S.C. Sec. 309(e) as to whether renewal was consistent with the public interest standard of the Communications Act, 47 U.S.C. Sec. 309(a) (1982). Noting that renewal proceedings were an inappropriate setting for establishing a captioning requirement, he granted the renewal applications. ⁵ The FCC denied appellants' joint application for review of the Video Services decision and their petition for reconsideration of that denial.

board challenges by filing separate petitions to deny the 1983 renewal applications. Specifically, they sought a hearing under 47 U.S.C. Sec. 309(e) (1982) on whether, during the previous license period, the licensees had discriminated against qualified handicapped persons in employment and had failed to meet the needs of their hearing-impaired viewers by captioning insufficient television programs.

In the second case, No. 86-1321, appellants challenge the FCC's approval of Golden West Associates' petition to transfer the license for station KTLA to Tribune Broadcasting Co. Golden West filed its transfer application on June 7, 1985. Appellants and others filed a petition to deny the application because, they asserted, Golden West had neither captioned sufficient programming nor implemented an EEO program for the handicapped, and Tribune would likely continue these practices. See App., No. 86-1321, at 3-4, 12. The FCC again found appellants' arguments repetitive of those raised in previous proceedings. Golden West Assocs., FCC No. 85-541, 59 Rad.Reg. 2d (P & F) 125, 128, 129 (Oct. 11, 1985). As to KTLA's practices, the FCC found that KTLA had complied with FCC programming standards and had broadcast a number of programs with closed captions. It therefore denied appellants' petition and granted Golden West's transfer application. Id. at 137. The FCC once again noted that the question of captioning was not appropriately considered in an adjudicatory setting, id. at 129, and stated that any future petition that reiterated these arguments would be "rejected summarily and without comment by the Mass Media Bureau." Id. at 128. The FCC denied appellants' joint petition for reconsideration. FCC No. 86-235 (May 13, 1986). The two cases have been consolidated before us.

DISCUSSION

I

A. Appellants argue that the Rehabilitation Act of 1973, as amended in 1978, obligates the FCC to consider the licensee's captioning practices in determining whether to renew a broadcast license. ⁶ Section 504 of the 1973 Act barred discrimination Whatever obligation to caption programs broadcasters may have under section 504 of the Rehabilitation Act, it is settled that the FCC is not responsible for enforcing it through its licensing procedures. In Community Television, the Supreme Court held that the FCC "is not a funding agency and has never been thought to have responsibility for enforcing Sec. 504." 459 U.S. at 509, 103 S.Ct. at 892. ⁸ . Enforcement of section 504 has been committed instead to the federal agencies administering the federal financial assistance programs, Community Television, 459 U.S. at 509, 103 S.Ct. at 892, which, in the case of broadcasters, are principally the Departments of Education and Commerce. See 34 C.F.R. pt. 104 (1987) (Education regulations implementing section 504); 15 C.F.R. Sec. 2301.29(c) (1987) (Commerce enforcement duties assigned to the National Telecommunications and Information Administration, which administers facilities grants). In particular, the Supreme Court noted, "there is not a word in the legislative history of the Act suggesting that it was intended to alter the Commission's standard for reviewing ... programming decisions...." Community Television, 459 U.S. at 509-10, 103 S.Ct. at 892.

                against or denial of benefits to an "otherwise qualified handicapped individual" on the basis of the handicap "under any program or activity receiving Federal financial assistance."    29 U.S.C. Sec. 794 (1976).  In 1978, Congress amended section 504 to extend coverage to "any program or activity conducted by any Executive agency...."  Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, Pub.L. No. 95-602, 92 Stat. 2982 (1978). 7
                

Intervenors, with the exception of Community Television (KCET), are private commercial broadcasters; they do not receive federal financial assistance and therefore Appellants seek to distinguish these cases on the ground that the courts there allegedly were construing section 504 prior to its amendment in 1978, which extended its reach to "any program or activity conducted by any Executive agency." This is not so. Although Community Television arose out of appellants' challenge to the 1977 license renewals, the Supreme Court considered section 504 as amended. See 459 U.S. at 500 n. 1, 103 S.Ct. at 887 n. 1. Indeed, the Court noted that "[w]hen the Act was amended in 1978, that understanding [that the funding agencies alone would have to enforce section 504] was made explicit." Id. at 509, 103 S.Ct. at 892. The Ninth Circuit similarly applied the amended statute in rejecting appellants' arguments. See CAPH v. FCC, 721 F.2d...