Mich. Citizens for an Indep. Press v. ATTY. GEN., Civ. A. No. 88-2322.

• Decision Date: 14 September 1988
• Docket Number: Civ. A. No. 88-2322.
• Citation: 695 F. Supp. 1216
• Parties: MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS, et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

695 F. Supp. 1216

MICHIGAN CITIZENS FOR AN INDEPENDENT PRESS, et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants.

Civ. A. No. 88-2322.

United States District Court, District of Columbia.

September 14, 1988.

William B. Schultz, David C. Vladeck, Public Citizen Litigation Group, Washington, D.C., for plaintiffs.

John Stuart Smith, Nixon, Hargrave, Devans & Doyle, Washington, D.C., for Detroit News.

David J. Anderson, Thomas Millet, Dept. of Justice, Washington, D.C., for Dept. of Justice.

Philip A. Lacovara, Gerald Goldman, Hughes, Hubbard & Reed, Clark M. Clifford, Robert A. Altman, Clifford & Warnke, Washington, D.C., for Detroit Free Press.

Edward B. Cohen, Davis Wright & Jones, Paul Friedman, Anne Smith, White & Case, W. Terry Maguire, Claudia James, American Newspaper Publishers Ass'n, Washington, D.C., P. Cameron DeVore, Shelly Shapiro, Davis Wright & Jones, Seattle, Wash., Philip Anderson, Peter Kumpe, Wright, Lindsey & Jennings, Little Rock, Ark., amicus curiae.

MEMORANDUM OPINION AND ORDER

REVERCOMB, District Judge.

This case is a challenge to a decision by former Attorney General Edwin Meese III to approve a joint operating agreement ("JOA") under the Newspaper Preservation Act ("NPA") of 1970, 15 U.S.C. §§ 1801-1804 (1982). The JOA would give the newspapers, the Detroit Free Press ("Free Press") and The Detroit News ("News"), limited exemption from antitrust laws.

Attorney General Meese granted the application for a JOA between the two newspapers on August 8, 1988. Eight days later, and two days before the JOA was to begin in operation, this suit was filed by plaintiffs, a group that includes individuals, advertisers, and newspaper employees who allege that they would be adversely affected by the JOA. On August 17, 1988, Judge Joyce Hens Green of this Court, sitting as motions judge, granted plaintiffs' motion to stay the effect of the Attorney General's decision until September 17, 1988. Judge Green held that "at this early stage of these proceedings the record suggests the conclusion that the Attorney General's Decision and Order was arbitrary and capricious," but that "upon a full ventilation of these matters a different conclusion might be reached." Opinion and Order Granting Stay at 15.

Pursuant to a schedule ordered by Judge Green, oral argument was heard on cross-motions for summary judgment on September 8, 1988. For the reasons stated herein, the Court grants defendants' motion for plenary summary judgment and will allow the stay to expire.

I. Background

The Detroit metropolitan area is the only urban center in the nation, save New York, with two general interest daily newspapers with circulations of more than 650,000 each. The Free Press, owned since 1940 by Knight-Ridder, Inc., the nation's second-largest newspaper group, and the News, run since 1986 by Gannett Co., Inc., America's largest newspaper organization, have engaged since roughly 1960 in what has been nicknamed "The Great Newspaper War." Unlike the numerous other newsprint battles in American cities since World War II, however, the Detroit contest has not resulted in a clear winner and a clear loser. Indeed, since 1970 the Free Press has never captured less than 47 percent nor greater than 50 percent of the combined daily circulation market. By virtue of the newspaper war, the papers are the least expensive major dailies in the nation, both for buyers and advertisers, and Detroit has the highest per capita newspaper readership rate of any major metropolitan area.

By 1980, however, the management of each paper was deeply concerned that their puplication would fall behind and suffer the fate of many other once-robust but now-extinct "second" newspapers. With each paper convinced that its publication could be the one to survive, each engaged in costly strategies to try to achieve "market domination." Each cut prices, discounted its advertising rates, and made significant capital investments, including the opening of a new printing plant by the Free Press in 1986.

Despite consistent profits during the 1970s, both publications have suffered operating losses throughout the 1980s, although those of the Free Press have been more consistent. On May 9, 1986, not long after Gannett purchased the News, the two newspapers petitioned the Attorney General for permission to work under a JOA, which includes a provision for only one newspaper to be published on weekends. Since then, the Free Press's losses have deepened, so that the paper now contends it is losing between $34,000 and $45,000 a day, even though circulation has not fallen off significantly.

After receiving the application for the JOA, the Attorney General referred the matter to the Assistant Attorney General in Charge of the Antitrust Division, then Douglas H. Ginsburg, who recommended on July 23, 1986 both that the application be denied and that the matter be presented to an administrative law judge ("ALJ"). Pursuant to 28 C.F.R. § 48.10 (1986), the Attorney General referred the matter to ALJ Morton Needelman, who conducted three weeks of evidentiary hearings. On December 29, 1987, Judge Needelman presented a 129-page Recommended Decision ("Recommended Decision") that including exhaustive findings of fact and again recommended that the JOA be denied. Attorney General Meese on August 8, 1988 issued a Decision and Order ("Decision and Order") granting the application for a JOA. Although he "accepted as accurate the fact findings of the Administrative Law Judge," Attorney General Meese "differed ... with his ultimate conclusion as to where those facts lead." Decision and Order at 14. Judge Green's order stayed the effect of the Attorney General's Decision and Order, which otherwise would have permitted the JOA to go into effect under the NPA on August 18, 1988.

II. The Newspaper Preservation Act

Concerned over the failing of many "second" newspapers in major metropolitan areas in the 1950s and 1960s, Congress in 1970 enacted the Newspaper Preservation Act ("NPA"), 15 U.S.C. §§ 1801-1804 (1982). The NPA grants a partial antitrust exemption to newspapers that enter into a JOA, in which the newspapers merge their business operations and jointly set prices and advertising rates. At the same time, the editorial and reporting functions remain separate, so that two different newspapers, presumably with two fairly separate editorial voices, continue to be published.

The key requirement for the Attorney General's approval of a JOA is that one of the papers be a "failing newspaper," defined as a publication that, "regardless of its ownership or affiliations, is in probable danger of financial failure." 15 U.S.C. § 1802(5) (emphasis added). The "failing newspaper" test was clearly intended to replace the more stringent "failing company" defense for mergers generally permitted under antitrust law. Specifically, Congress wished to reverse the effects of Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969), in which the United States Supreme Court held that JOAs violated antitrust restrictions unless one publication was "on the verge of going out of business." Id. at 137, 89 S.Ct. at 930. The purpose of the NPA is to allow the partial merger of two newspapers before the failing one becomes too ill to revive. In the application for the Detroit JOA, the Free Press was offered as the "failing newspaper."

Under the NPA, a JOA with an antitrust exemption must get prior approval of the Attorney General, who may approve the JOA if "approval of such arrangement would effectuate the policy and purpose" of the act. 15 U.S.C. § 1803(b). The statute offers no further guidance to this broad latitude granted to the Attorney General; instead, the Department of Justice ("DOJ") has adopted rules to govern consideration of JOA applications. 28 C.F.R. pt. 48 (1987). The rules include provision for an administrative law judge ("ALJ") to make a "recommendation" to the Attorney General. 28 C.F.R. § 48.10(d).

III. Judicial Review

Plaintiffs receive judicial review of the Attorney General's decision under the Administrative Procedure Act ("APA"), which directs the reviewing court to set aside agency action and conclusions when, among other situations, they are found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The court may set aside agency action because it is "unsupported by substantial evidence" only in a case "reviewed on the record of an agency hearing provided by statute." Id. § 706(2)(E) (emphasis added). Since the NPA does not provide for a hearing, only the "arbitrary" or "capricious" test is applicable here. See, e.g., Camp v. Pitts, 411 U.S. 138, 140-41, 93 S.Ct. 1241, 1243, 36 L.Ed.2d 106 (1973) ("substantial evidence" test not used when a hearing is held pursuant only to agency regulations); Maryland Department of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1451 n. 7 (D.C.Cir.1985).

This Court takes the words "arbitrary" and "capricious" seriously, noting that they constitute a highly deferential standard of review that presumes the validity of authorized action and requires affirmance if the action is supported by a rational basis. See, e.g., Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-21, 91 S.Ct. 814, 822-26, 28 L.Ed.2d 136 (1971). Moreover, although this Court must give a thorough examination to the reasons and the record, the Court is not entitled to substitute its judgment for that of the authorized official, even if the Court would have decided the other way under a weight of the evidence standard. See, e.g., Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. Finally, the Court is mindful of the fact that the plaintiff has the burden of...