Federal Communications Commission v. National Citizens Committee For Broadcasting Channel Two Television Company v. National Citizens Committee For Broadcasting National Association of Broadcasters v. Federal Communications Commission American Newspaper Publishers Association v. National Citizens Committee For Broadcasting Illinois Broadcasting Company, Inc v. National Citizens Committee For Broadcasting Post Company v. National Citizens Committee For Broadcasting

• Decision Date: 12 June 1978
• Docket Number: Nos. 76-1471,76-1604,76-1521,76-1624 and 76-1685,76-1595,s. 76-1471
• Citation: 436 U.S. 775,56 L.Ed.2d 697,98 S.Ct. 2096
• Parties: FEDERAL COMMUNICATIONS COMMISSION, Petitioner, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. CHANNEL TWO TELEVISION COMPANY et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION et al. AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, Petitioner, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. ILLINOIS BROADCASTING COMPANY, INC., et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al. POST COMPANY et al., Petitioners, v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al
• Court: U.S. Supreme Court

436 U.S. 775

98 S.Ct. 2096

56 L.Ed.2d 697

FEDERAL COMMUNICATIONS COMMISSION, Petitioner,

v NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.

CHANNEL TWO TELEVISION COMPANY et al., Petitioners,

v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.

NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner,

v. FEDERAL COMMUNICATIONS COMMISSION et al.

AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, Petitioner,

v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.

ILLINOIS BROADCASTING COMPANY, INC., et al., Petitioners,

v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.

POST COMPANY et al., Petitioners,

v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.

Nos. 76-1471, 76-1521, 76-1595, 76-1604, 76-1624 and 76-1685.

Argued Jan. 16, 1978.

Decided June 12, 1978.

Syllabus

After a lengthy rulemaking proceeding, the Federal Communications Commission (FCC) adopted regulations prospectively barring the initial licensing or the transfer of newspaper-broadcast combinations where there is common ownership of a radio or television broadcast station and a daily newspaper located in the same community ("co-located" combinations). Divestiture of existing co-located combinations was not required except in 16 "egregious cases," where the combination involves the sole daily newspaper published in a community and either the sole broadcast station or the sole television station providing that entire community with a clear signal. Absent waiver, divestiture must be accomplished in those 16 cases by January 1, 1980. On petitions for review of the regulations, the Court of Appeals affirmed the FCC's prospective ban but ordered adoption of regulations requiring dissolution of all existing combinations that did not qualify for waivers. The court held that the limited divestiture requirement was arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act. Held: The challenged regulations are valid in their entirety. Pp. 793-815.

(a) The regulations which are designed to promote diversification of the mass media as a whole, are based on public-interest goals that the FCC is authorized to pursue. As long as the regulations are not an unreasonable means for seeking to achieve those goals, they fall within the FCC's general rulemaking authority recognized in United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081, and National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344, Pp. 793-796.

(b) Although it is contended that the rulemaking record did not conclusively establish that the prospective ban would fulfill the stated purpose, "[d]iversity and its effects are . . . elusive concepts, not easily defined let alone measured without making quality judgments objectionable on both policy and First Amendment grounds," and evidence of specific abuses by common owners is difficult to compile. In light of these considerations, the FCC clearly did not take an irrational view of the public interest when it decided to impose the prospective ban, and was entitled to rely on its judgment, based on experience, that "it is unrealistic to expect true diversity from a commonly owned station-newspaper combination." In view of changed circumstances in the broadcasting industry, moreover, the FCC was warranted in departing from its earlier licensing decisions that allowed co-located combinations. Pp. 796-797.

(c) The contention that the First Amendment rights of newspaper owners are violated by the regulations ignores the fundamental proposition that there is no "unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388, 89 S.Ct. 1794, 1805, 23 L.Ed.2d 371. In view of the limited broadcast spectrum, allocation and regulation of frequencies are essential. Nothing in the First Amendment prevents such allocation as will promote the "public interest" in diversification of the mass communications media. A newspaper owner need not forfeit his right to publish in order to acquire a station in another community; nor is he "singled out" for more stringent treatment than other owners of mass media under already existing multiple-ownership rules. Far from seeking to limit the flow of information, the FCC has acted "to enhance the diversity of information heard by the public without on-going government surveillance of the content of speech." The regulations are a reasonable means of promoting the public interest in diversified mass communications, and thus they do not violate the First Amendment rights of those who will be denied broadcasting licenses pursuant to them. Pp. 798-802.

(d) The limited divestiture requirement reflects a rational weighing of competing policies. The FCC rationally concluded that forced dissolution of all existing co-located combinations, though fostering diversity, would disrupt the industry and cause individual hardship and would or might harm the public interest in several respects, specifically identified by the FCC. In the past, the FCC has consistently acted on the theory that preserving continuity of meritorious service furthers the public interest. And in the instant proceeding the FCC specifically noted that the existing newspaper-broadcast combinations had a "long record of service" in the public interest and concluded that their replacement by new owners would not guarantee the same level of service, would cause serious disruption during the transition period, and would probably result in a decline of local ownership. Pp. 803-809.

(e) The function of weighing policies under the public-interest standard has been delegated by Congress to the FCC in the first instance, and there is no basis for a "presumption" that existing newspaper-broadcast combinations "do not serve the public interest." Such a presumption would not comport with the FCC's longstanding and judicially approved practice of giving controlling weight in some circumstances to its goal of achieving "the best practicable service to the public." There is no statutory or other obligation that diversification should be given controlling weight in all circumstances. The FCC has made clear that diversification of ownership is a less significant factor when the renewal of an existing license as compared with an initial licensing application is being considered, and the policy of evaluating existing licensees on a somewhat different basis from new applicants appears to have been approved by Congress. Since the decision to "grandfather" most existing combinations was based on judgments and predictions by the FCC, complete factual support in the record was not required; "a forecast of the direction in which future public interest lies necessarily involves deductions based on the expert knowledge of the agency," FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 29, 81 S.Ct. 435, 450, 5 L.Ed.2d 377. Nor was it arbitrary for the FCC to order divestiture in only the 16 "egregious cases," since the FCC made a rational judgment in concluding that the need for diversification was especially great in cases of local monopoly. Pp. 809-815.

181 U.S.App.D.C. 1, 555 F.2d 938, affirmed in part and reversed in part.

Erwin N. Griswold, Washington, D.C., for all private petitioners.

Daniel M. Armstrong, III, Washington, D.C., for petitioner and respondent Federal Communications Commission.

Lawrence G. Wallace, Washington, D.C., for respondent United States.

Charles M. Firestone, Washington, D.C., for respondent National Citizens Committee for Broadcasting.

[Amicus Curiae Information from pages 778-779 intentionally omitted] Mr. Justice MARSHALL delivered the opinion of the Court.

At issue in these cases are Federal Communications Commission regulations governing the permissibility of common ownership of a radio or television broadcast station and a daily newspaper located in the same community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F.C.C.2d 1046 (1975) (hereinafter cited as Order), as amended upon reconsideration, 53 F.C.C.2d 589 (1975), codified in 47 CFR §§ 73.35, 73.240, 73.636 (1976). The regulations, adopted after a lengthy rulemaking proceeding, prospectively bar formation or transfer of co-located newspaper-broadcast combinations. Existing combinations are generally permitted to continue in operation. However, in communities in which there is common ownership of the only daily newspaper and the only broadcast station, or (where there is more than one broadcast station) of the only daily newspaper and the only television station, divestiture of either the newspaper or the broadcast station is required within five years, unless grounds for waiver are demonstrated.

The questions for decision are whether these regulations either exceed the Commission's authority under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. (1970 ed. and Supp. V), or violate the First or Fifth Amendment rights of newspaper owners; and whether the lines drawn by the Commission between new and existing newspaper-broadcast combinations, and between existing combinations subject to divestiture and those allowed to continue in operation, are arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1976 ed.). For the reasons set forth below, we sustain the regulations in their entirety.

I

A.

Under the regulatory scheme established by the Radio Act of 1927, 44 Stat. 1162, and continued in the Communications Act of 1934, no television or radio broadcast station may operate without a license granted by the Federal Communications Commission. 47 U.S.C. § 301. Licensees who wish to continue broadcasting must apply for renewal of their licenses every three years, and the Commission may grant an initial license or a renewal only if it finds...