N. A. A. C. P. v. F. C. C.
| Citation | 682 F.2d 993 |
| Decision Date | 29 June 1982 |
| Docket Number | No. 80-2416,80-2416 |
| Parties | , 8 Media L. Rep. 2414 NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Metromedia, Inc., Corinthian Broadcasting Co., et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of Orders of the Federal Communications commission.
Jeffrey H. Olson, Washington, D. C., with whom Amit Pandya, Washington, D. C., was on the brief, for petitioners.
C. Grey Pash, Jr., Counsel, F. C. C., Washington, D. C., with whom Stephen A. Sharp, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Gregory M. Christopher, Counsel, F. C. C., and Barry M. Grossman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondents. David Silberman, Counsel, F. C. C., and Andrea Limmer, Atty., Dept. of Justice, Washington, D. C., also entered appearances for respondents.
Thomas J. Dougherty, Washington, D. C., with whom Preston R. Padden, Edgar F. Czarra, Jr. and Joseph Volpe, III, Washington, D. C., were on the joint brief, for intervenors, Metromedia, Inc. and Corinthian Broadcasting Corp.
Thomas H. Wall, Werner K. Hartenberger and Maxine D. Howard, Washington, D. C., were on the statement in lieu of brief, for intervenor, Channel 5 Television Co.
Thomas N. Frohock and Dennis P. Corbett, Washington, D. C., entered appearances for intervenors, ABC, Inc. and General Electric Broadcasting Co., Inc.
Before WALD and EDWARDS, Circuit Judges, and DAVIS, Judge. *
Opinion for the Court filed by Judge DAVIS.
Petitioners, NAACP, et al., 1 challenge the Federal Communication Commission's (FCC or Commission) repeal of the Top-Fifty Policy on television ownership applications. This Policy required, absent a compelling showing in the application that the acquisition would be in the public interest, an evidentiary hearing on the applications of those seeking to acquire a third television station or more than two VHF stations in one of the fifty largest television markets. 2 We uphold the Commission in its latest action.
The Top-Fifty Policy ("Policy") was first adopted in 1964 as an interim policy during an overall review of the problems of concentration in and diversification of the broadcast media. Applications to Acquire Interests in a Second VHF Station in Major Markets to be Designated for Hearing, 3 Pike & Fischer RR 2d 909 (1964) (3 RR 2d). That temporary policy required, in the absence of a compelling affirmative showing, an evidentiary hearing on any application for the acquisition of a VHF station in one of the top fifty television markets if the applicant already owned or had interests in one or more VHF stations in those markets, or if the applicant sought to acquire interests in two or more VHF stations in the largest markets. It was enacted in response to a trend towards "concentration of such multiple ownership in the largest markets where the numbers of viewers reached are greatest and where diversity of interests and viewpoints should be maximized." Id. at 910.
In 1965, the FCC proposed a rule prohibiting the ownership of three or more television stations, or more than two VHF stations, in the top fifty markets. Notice of Proposed Rulemaking, 5 Pike & Fischer RR 2d 1609 (1965) (5 RR 2d). In conjunction with the commencement of a notice-and-comment-rulemaking-proceeding, the agency adopted a second interim policy designating for hearing any applications the granting of which would be inconsistent with the proposed rule, unless a compelling showing of public interest was apparent on the face of the application. Interim Policy Concerning Acquisition of Television Broadcast Stations, 5 Pike & Fischer RR 2d 271 (1965). Again, the policy was justified in order to counteract the fact that "(n)ot only is the level of concentration in the larger markets at a high point but it has been increasing." 5 RR 2d at 1612, P 8. In the Commission's then view, the studies indicated Id. at 1613, P 10.
The Commission concluded its comment and analysis period in 1968, and decided not to adopt a rule but to continue with the top-fifty market restrictions as a Policy. Report & Order, 22 FCC 2d 696, 700, P 17 (1968) (22 FCC 2d).
In 1978, the agency again issued a notice of proposed rulemaking, initiating an inquiry into whether the Policy should be continued, modified, or repealed and, if retained, whether it should be as a policy or a rule. Notice of Inquiry & Proposed Rulemaking, 68 FCC 2d 837 (1978) (68 FCC 2d). The Commission specifically requested comments on whether the Policy discouraged applicants who did not feel they could meet the public interest requirement. Id. at 840-41.
In December 1979, after having received comments from various television group owners and Citizens Communications Center ("Citizens") and the National Black Media Coalition ("NBMC"), the Commission decided not to adopt a rule and to repeal the Policy. Report & Order, 75 FCC 2d 585 (1979) (75 FCC 2d). The agency concluded that there was no problem of concentration of ownership requiring a rule or policy, and that a top-fifty rule or policy was unnecessary, given the other multiple ownership rules. Id. at 597, P 37. These findings were confirmed in denying a petition for reconsideration made by the NAACP. Denial of Reconsideration, 82 FCC 2d 329 (1980) (82 FCC 2d). Petitioner filed its petition for review by this court on November 20, 1980.
Under Congress's general formulation in the Administrative Procedure Act, 5 U.S.C. § 706, of the basic criteria for review of administrative agency determinations, the standards for scrutiny of informal agency action, adopting policies or rules, have often been explicated and need not now be redeveloped. Briefly, such agency action is presumed to be valid in the absence of a substantial showing to the contrary. Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 n.28, 292 (D.C.Cir.1981); Ethyl Corp. v. EPA, 541 F.2d 1, 34, 37 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976). The court's review is not merely a summary endorsement, however, but should be searching and careful. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). While the level of review is not to be perfunctory it is relatively narrow and designed only to ensure that the agency's decision is not contrary to law, is rational, has support in the record, and is based on a consideration of the relevant factors. FCC v. Nat'l Citizens Committee for Broadcasting, 436 U.S. 775, 803, 814-15, 98 S.Ct. 2096, 2116, 2121-22, 56 L.Ed.2d 697 (1978); Food Marketing Institute v. ICC, 587 F.2d 1285, 1289 (D.C.Cir.1978); Almay, Inc. v. Califano, 569 F.2d 674, 680-81 (D.C.Cir.1977); Ethyl Corp., 541 F.2d at 36. This includes the agency's addressing the significant comments made in the rulemaking proceeding. Alabama Power Co. v. Costle, 636 F.2d 323, 384-85 (D.C.Cir.1979).
The administrative action must be upheld if it is not arbitrary or capricious, 3 or a clear error of judgment. 4 Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 290, 95 S.Ct. 438, 441, 444, 42 L.Ed.2d 447 (1974). This court has summarized the relevant standard for review of this type in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031 (D.C.Cir.1979):
We will exercise relatively careful scrutiny to ensure that the ... (agency) has scrupulously followed ... (required) procedures ... As part of this oversight we will demand that the Commission consider reasonably obvious alternative ... rules, and explain its reasons for rejecting alternatives in sufficient detail to permit judicial review. At the same time, however, our review of the Commission's factual, and particularly its policy, determinations will perforce be a narrow one, limited to ensuring that the Commission has adequately explained the facts and policy concerns it relied on and to satisfying ourselves that those facts have some basis in the record. Finally, we must see "whether those facts and legislative considerations by themselves could lead a reasonable person to make the judgment that the Agency has made." (footnotes and citations omitted).
In this instance, our review is heightened somewhat by the fact that the FCC's action in ending the Top-Fifty Policy was a reversal of a prior position. See, e.g., State Farm Mutual Automobile Insurance Co. v. Department of Transportation, 680 F.2d 206 at 228-230 (D.C.Cir.1982); Wheaton Van Lines, Inc. v. ICC, 671 F.2d 520, 527 (D.C.Cir.1982); NRDC, 606 F.2d at 1049-50 n.23; CBS v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Agencies may modify or repeal existing policies and rules as the conditions which they address change, Nat'l Citizens Committee for Broadcasting, 436 U.S. at 797, 98 S.Ct. at 2113, and a court should defer to the administrative judge as to whether conditions have in fact changed and what action, if any, is now warranted. Malrite T. V. of New York v. FCC, 652 F.2d 1140, 1149 (2d Cir. 1981); NRDC, 606 F.2d at 1052; Food Marketing Institute, 587 F.2d at 1293-94. The test is still whether the agency's decision is rational and based on the record. Nat'l Tour Brokers Assn. v. ICC, 671 F.2d 528, 532-33 (D.C.Cir.1982). But where policy has been altered, the court should be satisfied...
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