Gottfried v. F. C. C., 79-1722
| Decision Date | 17 April 1981 |
| Docket Number | No. 79-1722,79-1722 |
| Citation | 210 U.S.App.D.C. 184,655 F.2d 297 |
| Parties | , 7 Media L. Rep. 1233 Sue GOTTFRIED, Individually and on Behalf of the Deaf and Hearing Impaired Population Within the Stations' Viewing Area, and Greater Los Angeles Council on Deafness, Inc., Appellants, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Inc., Community Television of SouthernCalifornia, Metromedia, Inc., American Broadcasting Companies, Inc., KCOPTelevision, Inc., RKO General, Inc., Golden West Broadcasters, and CBS, Inc.,Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Abraham Gottfried, Los Angeles, Cal., and Charles M. Firestone for appellants.
Randolph J. May, Counsel, F. C. C., Washington, D. C., with whom Robert R. Bruce, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Keith H. Fagan and Mary Lee Lindquist, Counsel, F. C. C., Washington, D. C., were on the brief, for appellee. Lisa B. Margolis, Counsel, F. C. C., Washington, D. C., entered an appearance for appellee.
Timothy B. Dyk, Washington, D. C., with whom J. Roger Wollenberg and Judith Barry Wish, Washington, D. C., (for intervenor CBS, Inc.), James A. McKenna, Jr., Mark D. Roth, and Carl R. Ramey, Washington, D. C., (for intervenor American Broadcasting Companies, Inc.), Michael J. McCarthy, Washington, D. C., (for intervenor Golden West Broadcasters), Howard F. Roycroft, Richard S. Rodin, and Marvin J. Diamond, Washington, D. C., (for intervenor KCOP Television, Inc.), Thomas J. Dougherty and Preston R. Padden, Washington, D. C., (for intervenor Metromedia, Inc.), Bernard Koteen, Arthur B. Goodkind, and Howard Monderer, Washington, D. C., (for intervenor National Broadcasting Company, Inc.), and J. Laurent Scharff and Jack N. Goodman, Washington, D. C., (for intervenor RKO General, Inc.), were on the joint brief, for intervenors CBS, Inc. et al. Margot Smiley Humphrey, Washington, D. C., entered an appearance for intervenor National Broadcasting Company, Inc.
Edgar F. Czarra, Jr., and Mark D. Nozette, Washington, D. C., were on the brief for intervenor Community Television of Southern California.
Before McGOWAN, Chief Judge, WRIGHT, Circuit Judge, and GASCH, * District Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
This case, involving denial by the Federal Communications Commission (FCC or Commission) of a petition to deny license renewals to eight Los Angeles television stations, 1 presents difficult questions concerning the obligations of public and commercial broadcasters to attempt to meet the programming needs of persons with impaired hearing. The issues arise under two statutes: the Communications Act, 2 under which the Commission can renew a station's license only upon a finding that its programming has served the public interest, and Section 504 of the Rehabilitation Act of 1973, 3 which prohibits discrimination against "otherwise qualified" handicapped persons by recipients of federal financial assistance. Because public television stations are apparently bound by Section 504 of the Rehabilitation Act to provide service to "otherwise qualified" handicapped persons, we do not believe that the FCC could find the service of such stations to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired. Accordingly, we hold that the challenge to the license renewal of public station KCET-TV must be remanded to the Commission for further proceedings.
We conclude, however, that Section 504 does not apply directly to commercial broadcasters. We therefore hold that the decision of the Commission concerning the seven commercial stations may be upheld, on the basis of both the record compiled below and the Commission's representations of substantial progress in extending the benefits of commercial television to the hearing impaired. In so doing, however, we recognize that the Commission's statutory obligation to pursue the public interest requires it to protect the interests of the hard of hearing in having meaningful access to commercial broadcasting. We also note that rulemaking might be a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing. Radio has been available to the general public for over half a century, as has television for over a quarter century. But millions of Americans have lived and died during that time without being able to enjoy radio and television simply because their hearing was impaired. It is time for the Commission to act realistically to require, in the public interest, that the benefits of television be made available to the hard of hearing now.
This case, in which appellants challenge an FCC order denying a petition to deny license renewals to eight Los Angeles television stations, 4 arises against a complex background of federal statutes and administrative action. The Communications Act of 1934 charges the Federal Communications Commission with granting broadcast licenses and license renewals. 5 The Commission does so pursuant to a general mandate to protect and advance "the public interest, convenience, and necessity." 6 Although this mandate is general, the Commission has in fact interpreted it through the issuance of a number of regulations and guidelines. These Commission guidelines typically govern decisions about whether to renew broadcast licenses in cases where there is no announced competitor for a license held by the applicant for renewal. 7 Although the statute provides that "(a)ny party in interest may file with the Commission a petition to deny any application," 8 the Commission need generally hold no hearings unless the petition raises a "substantial and material question of fact" 9 concerning the incumbent licensee's satisfaction of pertinent Commission standards. Where no question is raised concerning the station's compliance with Commission guidelines, renewal is generally granted without public hearing.
Both the courts and the FCC have construed the "public interest" standard for license awards to include a requirement that broadcasters endeavor to discover and to meet the programming needs of all significant groups within their areas of service. 10 The Commission publishes a list of specific groups whose needs must be "ascertained." 11 At least since 1970 it has urged licensees to make efforts to serve the hearing impaired, 12 a group estimated to include at least 13 million people, nationwide. 13 But the Commission has declined to include the hearing impaired among the groups whose needs must specifically be consulted. 14 Nor has it ever promulgated guidelines requiring entertainment programming for the hard of hearing. The Commission has, however, insisted that emergency broadcasts must be made accessible to the deaf, 15 and, whenever individual broadcasters have sought Commission approval for innovative service to the hearing impaired, the Commission has given its approval. 16 For example, the Commission in 1976 adopted rules to permit "closed captioning" for visual display of aural material accompanying television programs. 17 Pursuant to this grant of permission, the Public Broadcasting Service (PBS) and two of the commercial networks began in March 1980 to provide a total of up to 20 hours a week of programming captioned by the National Captioning Institute. 18 The FCC has also emphasized in its public pronouncements that "licensees can and will be responsive to the needs of their (hearing impaired) viewers, but it is still the responsibility of each licensee to determine how it can most effectively meet those needs." 19
Although it has recognized that Section 504 of the Rehabilitation Act of 1973 may impose a statutory obligation on public television stations to accommodate at least some of their programming to the needs of the hearing impaired, 20 the FCC has thus far declined to take specific steps to enforce the Act. 21 The Department of Education has been officially designated as the agency to develop guidelines clarifying the specific obligations imposed on public broadcasters by Section 504. 22 The FCC has indicated that if any broadcaster should be found by another agency of government to be in violation of Section 504, it would "consider the effect of that violation upon the licensee's qualifications." 23 But because it is not the agency responsible for enforcement of the Rehabilitation Act, the FCC has stated that it will not attempt to hold broadcasters to any obligations thereunder, at least until the responsible agency has spoken. 24
Sue Gottfried is a hearing impaired member of the Los Angeles community. On October 28, 1977, on behalf of herself and others similarly situated, Mrs. Gottfried filed petitions to deny the license renewal applications of eight Los Angeles television stations. 25 In her petitions pertaining to the seven commercial licensees Mrs. Gottfried alleged generally that the stations had failed to ascertain or to meet the needs of the hearing impaired. She further argued that the stations, as recipients of valuable federal licenses, had failed to satisfy obligations imposed on them by Section 504 of the Rehabilitation Act of 1973. Regarding the public station KCET-TV, Mrs. Gottfried repeated her general claims and arguments, but she also added the specific charge that the station had shown indifference to the needs of the deaf by failing to broadcast, through most of its license term, a captioned version of the ABC Evening News that was made available to it by the Public Broadcasting Service. 26
On September 8, 1978 the FCC denied Mrs....
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