Geller v. F. C. C.

Citation610 F.2d 973
Decision Date07 November 1979
Docket NumberNo. 77-1093,77-1093
Parties, 1978-81 Copr.L.Dec. 25,115, 5 Media L. Rep. 2061 Henry GELLER, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Edward J. Kuhlmann, Washington, D. C., for petitioner.

Julian R. Rush, Jr., Counsel, Washington, D. C., with whom Werner K. Hartenberge, Gen. Counsel, and Daniel M. Armstrong, Asst. Gen. Counsel, Federal Communications Commission, and John H. Shenefield, Acting Asst. Atty. Gen., Barry M. Grossman, and Peter L. Delacruz, Attys., Dept. of Justice, Washington, D. C., were on brief, for respondents.

James A. McKenna, Jr., Robert W. Coll and John J. Smith, Washington, D. C., entered appearances for intervenor American Broadcasting Companies, Inc.

Before WRIGHT, Chief Judge, and ROBINSON and WILKEY, Circuit Judges.

Opinion per curiam.

PER CURIAM:

The pivotal question before us is whether regulations of the Federal Communications Commission initially promulgated to facilitate the enactment of new copyright legislation can, once that purpose has been fully exploited, subsist without a fresh determination that they serve the public interest in some other manner. We answer that question in the negative.

I

After years of inconclusive effort to define a satisfactory relationship between broadcasting and cable 1 in the provision of television programming, 2 the Commission in 1971 issued a "Letter of Intent" 3 incorporating a "summary of the Commission's proposals for the near-term regulation of cable television." 4 This pronouncement adverted to a careful three-year revision of the Commission's earlier cable policies, and declared that "(t)he policies put forward here result from an intensive study of the issues, balancing all the equities, and represent our best judgment on the regulatory course that should be followed." 5 The letter of intent expressed the view that new copyright legislation was needed 6 in order to insure "the continued economic health of those who create program material," a matter deemed "crucial to both broadcasting and cable." 7 The Commission felt, however, that cable regulation and copyright protection could be separately considered, 8 and "that copyright policy is most appropriately left to Congress and the courts." 9 The Commission "note(d) the present efforts of the principals (in the controversy) to reach an agreement," and "hope(d) that these efforts (would) be fruitful." 10

Subsequently, the three major groups to be affected by the contemplated rules broadcasters, cable operators and copyright owners entered into a consensus agreement 11 proposing three modifications in regulations envisioned in the letter of intent with respect to cable carriage of television broadcast signals. 12 The Commission, in turn, "believe(d) that adoption of the consensus agreement (would) markedly serve the public interest." 13 This belief was founded on the expectation that adoption of the proposed modifications would facilitate the passage of new copyright legislation and the realization of the benefits anticipated therefrom. 14 On this public-interest ground the Commission in 1972 chose the specifications of the consensus agreement in lieu of differing provisions of the letter of intent. 15 Late in 1976 Congress revised the copyright laws extensively. 16

Meanwhile, in 1974, Henry Geller, the petitioner here, asked the Commission to reexamine portions of the cable television rules and to revamp them suitably, 17 in significant part by returning to particular regulatory provisions of the letter of intent that had been supplanted in the preference for the consensus agreement. 18 Prominent among Geller's complaints were contentions "that the Commission's 1972 cable television rules were in important respects not based on the Commission's judgment as to what would best serve the public interest, but rather on the need to adhere to the "Consensus Agreement," 19 and "that the Commission can no longer validly adhere to provisions that do not, in its judgment, best serve the public interest in view of 'the undisputed fact that the agreement is now a dead letter.' " 20 These arguments did not impress the Commission however. While, stating that it was "open to proposals for changes in (its) cable television rules," 21 and that "(a)dditional changes in the rules (could) be anticipated in response to properly documented petitions for rulemaking or as part of (its) own continuing review of the rules," 22 the Commission concluded that Geller's petition did not "provide( ) an appropriate vehicle for initiating further changes." 23 Although it emphasized that past rulings clearly established that the consensus agreement interposed no barrier to modification of rules emanating from it, 24 the Commission perceived no occasion to reassess their validity on the basis of Geller's petition:

It was the Commission's judgment in 1972 that it would be in the overall public interest to adopt rules that closely followed the "Consensus Agreement" that such rules not only served to protect the television broadcaster serving the public receivers but held forth the best prospect of fostering cable television growth within an appropriate and fair regulatory and legal context. The question for us now is whether all of the regulations adopted at that time remain justified. Although we are not prepared at this time to say they are contrary to the public interest, all of the rules are under review as part of our continuing re-regulation efforts. The petitions before us do not contain any evidence that aids us in making that judgment. We will, therefore, not institute the requested rulemaking proceedings at this time. Our overall review will continue, however, and we will remain receptive to properly documented suggestions for rule changes. 25

Then followed the petition for review now before us. 26

II

We are confronted at the threshold by a jurisdictional problem. In this court Geller contends for the first time that the Commission erred when in 1972 it translated the regulatory modifications urged in the consensus agreement into rules for the governance of cable television. Geller charges that in so doing the Commission baldly adopted the compromise reached by the three involved industries on the controversy long besetting cable television, without providing other segments of the interested public with any opportunity for input into the decision to be made. 27 Geller argues further, again for the first time, that the Commission's acceptance of the industry compact could not have been justified by the supposed need to facilitate the passage of new copyright legislation. 28 Not only are these arguments inappropriate for judicial consideration in the first instance 29 but they are also grossly untimely. Direct review of Commission orders must be initiated within a period of 60 days; 30 here the interval between finality of the rulemaking order and the instant petition for judicial review was almost five years. 31 Resultantly, we lack jurisdiction to consider so much of Geller's presentation. 32

It does not follow, however, that Geller is completely out of court, for his challenge to the continuing vitality of the Commission's public-interest justification remains. The claim that the 1972 rule changes had fully served their stated purpose did not ripen until the new copyright legislation was enacted just six weeks prior to the order denying Geller's request for additional rulemaking. 33 Moreover, in Functional Music, Inc. v. FCC, 34 we found jurisdiction to consider, in a proceeding not begun until late 1957, the validity of Commission regulations formulated in 1955. We explained:

As applied to rules and regulations, the statutory time limit restricting judicial review of Commission action is applicable only to cut off review directly from the order promulgating a rule. It does not foreclose subsequent examination of a rule where properly brought before this court for review of further Commission action applying it. For unlike ordinary adjudicatory orders, administrative rules and regulations are capable of continuing application; limiting the right of review of the underlying rule would effectively deny many parties ultimately affected by a rule an opportunity to question its validity. 35

Had the Commission applied one or more of the 1972 regulations to the detriment of some individual, he would clearly have been in a position to complain of the order doing so. Had Geller emulated Functional Music in an unsuccessful petition to eliminate specific regulations on demonstrable grounds of invalidity, his right to judicial review seemingly would be unquestionable. Although, in this case, Geller asked the Commission to commence a new rulemaking proceeding, 36 the same result must follow. Functional Music makes clear that the period statutorily prescribed for judicial review of an administrative order governs only direct review of that order. 37 Geller's petition in this court is for review, not of the 1972 order promulgating the contested rules, but of the 1976 order refusing to reexamine their continuing validity. 38 To this extent, we have jurisdiction to entertain his complaint. 39

III

In denying Geller's petition for new rulemaking, the Commission stated, very accurately in our view, that "(t)he question for (decision was) whether all of the regulations adopted (in 1972) remain(ed) justified." 40 Although the Commission was "not prepared at (that) time to say they (were) contrary to the public interest," 41 it plainly was equally unprepared to say that the regulations were then consistent with the public interest. 42 Nonetheless, the Commission declined to conduct an inquiry in that regard because "(t)he petitions before (it did) not contain any evidence that aid...

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