Federal Communications Commission v. Wncn Listeners Guild Insilco Broadcasting Corporation v. Wncn Listeners Guild American Broadcasting Companies, Inc v. Wncn Listeners Guild National Association of Broadcasters v. Wncn Listeners Guild 79 827

Citation450 U.S. 582,101 S.Ct. 1266,67 L.Ed.2d 521
Decision Date24 March 1981
Docket NumberNos. 79-824,s. 79-824
PartiesFEDERAL COMMUNICATIONS COMMISSION et al., Petitioners, v. WNCN LISTENERS GUILD et al. INSILCO BROADCASTING CORPORATION et al., Petitioners, v. WNCN LISTENERS GUILD et al. AMERICAN BROADCASTING COMPANIES, INC. et al., Petitioners, v. WNCN LISTENERS GUILD et al. NATIONAL ASSOCIATION OF BROADCASTERS et al., Petitioners, v. WNCN LISTENERS GUILD et al. to 79-827
CourtUnited States Supreme Court
Syllabus

Sections 309(a) and 310(d) of the Communications Act of 1934 (Act) empower the Federal Communications Commission (FCC) to grant an application for renewal or transfer of a radio broadcast license only if it determines that "the public interest, convenience, and necessity" will be served thereby. In implementation of these provisions, the FCC, pursuant to its rulemaking authority, issued a Policy Statement concluding, with respect to ruling on applications for license renewal or transfer, that the public interest is best served by promoting diversity in a radio station's entertainment formats through market forces and competition among broadcasters and that review of an applicant station's format changes was not compelled by the Act's language or history, would not advance the radio-listening public's welfare, and would deter innovation in radio programming. On respondent citizen groups' petition for review of the Policy Statement, the Court of Appeals held that it violated the Act, concluding that the FCC's reliance on market forces to develop diversity in programming was an unreasonable interpretation of the Act's public-interest standard, and that in certain circumstances the FCC is required to regard a change in entertainment format as a substantial and material fact requiring a hearing to determine whether a license renewal or transfer is in the public interest.

Held : The FCC's Policy Statement is not inconsistent with the Act and is a constitutionally permissible means of implementing the Act's public-interest standard. Pp. 593-604.

(a) The FCC has provided a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats. It has assessed the benefits and the harm likely to flow from Government review of entertainment programming and has concluded that its statutory duties are best fulfilled by not attempting to oversee format changes. Pp. 595-596.

(b) The FCC's implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals, for "the weighing of policies under the 'public interest' standard is a task that Congress has delegated to the Commission in the first instance." FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 810, 98 S.Ct. 2096, 2119, 56 L.Ed.2d 697. Here, the FCC's position on review of format changes reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. P. 596.

(c) The Policy Statement is consistent with the legislative history of the Act and with the FCC's traditional view that the public interest is best served by promoting diversity in entertainment programming through market forces. Pp. 597-599.

(d) The Policy Statement does not conflict with the First Amendment rights of listeners, since the FCC seeks to further the interests of the listening public as a whole and the First Amendment does not grant individual listeners the right to have the FCC review the abandonment of their favorite entertainment programs. Pp. 603-604.

197 U.S.App.D.C. 319, 610 F.2d 838, reversed and remanded.

David J. Saylor, Washington, D. C., for petitioners, Federal Communication Commission and United States.

Timothy B. Dyk, Washington, D. C., for petitioners in 79-826 and 79-827.

Kristin Booth Glen, New York City, for respondents WNCN Listeners Guild, Inc., et al.

Wilhelmina Reuben Cooke, Washington, D. C., for respondents, The Office of Communication of United Church of Christ, et al.

Justice WHITE delivered the opinion of the Court.

Sections 309(a) and 310(d) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. (Act), empower the Federal Communications Commission to grant an application for license transfer 1 or renewal only if it determines that "the public interest, convenience, and necessity" will be served thereby.2 The issue before us is whether there are circumstances in which the Commission must review past or anticipated changes in a station's entertainment programming when it rules on an application for renewal or transfer of a radio broadcast license. The Commission's present position is that it may rely on market forces to promote diversity in entertainment programming and thus serve the public interest.

This issue arose when, pursuant to its informal rulemaking authority, the Commission issued a "Policy Statement" concluding that the public interest is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer. Respondents, a number of citizen groups interested in fostering and preserving particular entertainment formats, petitioned for review in the Court of Appeals for the District of Columbia Circuit. That court held that the Commission's Policy Statement violated the Act. We reverse the decision of the Court of Appeals.

I

Beginning in 1970, in a series of cases involving license transfers,3 the Court of Appeals for the District of Columbia Circuit gradually developed a set of criteria for determining when the "public-interest" standard requires the Commission to hold a hearing to review proposed changes in entertainment formats.4 Noting that the aim of the Act is "to secure the maximum benefits of radio to all the people of the United States," National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1009, 87 L.Ed. 1344 (1943), the Court of Appeals ruled in 1974 that "preservation of a format [that] would otherwise disappear, although economically and technologically viable and preferred by a significant number of listeners, is generally in the public interest." Citizens Committee to Save WEFM v. FCC, 165 U.S.App.D.C. 185, 207, 506 F.2d 246, 268 (en banc). It concluded that a change in format would not present "substantial and material questions of fact" requiring a hearing if (1) notice of the change had not precipitated "significant public grumbling"; (2) the segment of the population preferring the format was too small to be accommodated by available frequencies; (3) there was an adequate substitute in the service area for the format being abandoned; 5 or (4) the format would be economically unfeasible even if the station were managed efficiently.6 The court rejected the Commission's position that the choice of entertainment formats should be left to the judgment of the licensee,7 stating that the Commission's interpretation of the public-interest standard was contrary to the Act.8

In January 1976, the Commission responded to these decisions by undertaking an inquiry into its role in reviewing format changes.9 In particular, the Commission sought public comment on whether the public interest would be better served by Commission scrutiny of entertainment programming or by reliance on the competitive marketplace.10

Following public notice and comment, the Commission issued a Policy Statement 11 pursuant to its rulemaking authority under the Act.12 The Commission concluded in the Policy Statement that review of format changes was not compelled by the language or history of the Act, would not advance the welfare of the radio-listening public, would pose substantial administrative problems, and would deter innovation in radio programming. In support of its position, the Commission quoted from FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940): "Congress intended to leave competition in the business of broadcasting where it found it, to permit a licensee . . . to survive or succumb according to his ability to make his programs attractive to the public." 13 The Commission also emphasized that a broad- caster is not a common carrier 14 and therefore should not be subjected to a burden similar to the common carrier's obligation to continue to provide service if abandonment of that service would conflict with public convenience or necessity.15

The Commission also concluded that practical considerations as well as statutory interpretation supported its reluctance to regulate changes in formats. Such regulation would require the Commission to categorize the formats of a station's prior and subsequent programming to determine whether a change in format had occurred; to determine whether the prior format was "unique"; 16 and to weigh the public detriment resulting from the abandonment of a unique format against the public benefit resulting from that change. The Commission emphasized the difficulty of objectively evaluating the strength of listener preferences, of comparing the desire for diversity within a particular type of programming to the desire for a broader range of program formats and of assessing the financial feasibility of a unique format.17

Finally, the Commission explained why it believed that market forces were the best available means of producing diversity in entertainment formats. First, in large markets, competition among broadcasters had already produced "an almost bewildering array of diversity" in entertainment formats.18 Second, format allocation by market forces accommodates listeners' desires for diversity within a given format and also produces a variety of formats.19 Third, the...

To continue reading

Request your trial
142 cases
  • Vestavia Hills, Ltd. v. U.S. Small Bus. Admin. (In re Hills)
    • United States
    • U.S. District Court — Southern District of California
    • 26 Marzo 2021
    ...See Ass'n of Am. Railroads v. Surface Transp. Bd. , 161 F.3d 58, 66 (D.C. Cir. 1998) (citing FCC v. WNCN Listeners Guild , 450 U.S. 582, 596, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981) ) (noting that an "agency has discretion to weigh competing policies under its statute")Vestavia also contends ......
  • COYOTE VALLEY BAND OF POMO IND. v. United States
    • United States
    • U.S. District Court — Eastern District of California
    • 2 Abril 1986
    ...177, 2 L.Ed. 60 (1803); WNCN Listeners Guild v. F.C.C., 610 F.2d 838, 854-55 (D.C.Cir.1979), rev'd on other grounds, 450 U.S. 582, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981) ("In matters of interpreting the `law' the final say is constitutionally committed to the judiciary."). See also Securitie......
  • Newpark Shipbuilding & Repair, Inc. v. Roundtree
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Enero 1984
    ...no fetish whatsoever of a principle that nothing more must remain to be done to have finality. FCC v. WNCN Listeners Guild, 450 U.S. 582, 593, 101 S.Ct. 1266, 1273, 67 L.Ed.2d 521 (1981) (reviewing a "policy statement" of an agency without even discussing the issue of finality); Harrison v.......
  • Brae Corp. v. U.S., SEA-LAND
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 24 Agosto 1984
    ...must be rational, based on consideration of all relevant factors, and adequately explained).21 FCC v. WNCN Listeners Guild, 450 U.S. 582, 594, 101 S.Ct. 1266, 1274, 67 L.Ed.2d 521, 534 (1981). Accord FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 813-814, 98 S.Ct. 2096, 2121......
  • Request a trial to view additional results
1 books & journal articles
  • The game of radiopoly: an antitrust perspective of consolidation in the radio industry.
    • United States
    • Federal Communications Law Journal Vol. 52 No. 2, March 2000
    • 1 Marzo 2000
    ...is usually best served by allowing station sales transactions to be regulated by marketplace forces"). (29.) FCC v. WNCN Listeners Guild, 450 U.S. 582, 590 (1981) (citing Development of Policy Regarding Changes in the Entertainment Formats of Brdcst. Stations, 60 F.C.C.2d 858, para. 16, 37 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT