National Ass'n of Broadcasters v. F.C.C., s. 82-1926

Decision Date24 July 1984
Docket Number82-2233 and 83-1743,Nos. 82-1926,s. 82-1926
Citation740 F.2d 1190
PartiesNATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Citizens Committee for Broadcasting, et al., Western Union Telegraph Company, Forward Communications Corporation, et al., Graphic Scanning Corporation, United States Satellite Broadcasting Company, Inc., Direct Broadcast Satellite Corporation, Satellite Television Corporation, Satellite Syndicated Systems, Inc., Aerospace and Flight Test Coordinating Council, Manufacturers Radio Frequency Advisory Committee, CBS, Inc., National Black Media Coalition, Association of Maximum Service Telecasters, Inc., California Public Safety Radio Association, Inc., RCA American Communications, Inc., Intervenors. NATIONAL ASSOCIATION OF BROADCASTERS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Appellees, Satellite Television Corporation, National Citizens Committee for Broadcasting, et al., Satellite Syndicated Systems, Inc., Forward Communications Corporation, U.S. Satellite Broadcasting Co., et al., Televisa, S.A., National Black Media Coalition, CBS, Inc., Intervenors. COUNTY OF LOS ANGELES, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Satellite Television Corporation, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Eugene F. Mullin, Washington, D.C., with whom Erwin G. Krasnow, Valerie G. Shulte, Nathaniel F. Emmons and Robert D. Rosenberg, Washington, D.C., were on the brief for National Association of Broadcasters, petitioner/appellant in Nos. 82-1926 and 82-2233.

Joseph P. Markoski, Washington, D.C., with whom Philip L. O'Neill, Washington, D.C., and Mary F. Wawro, Los Angeles, Cal., were on the brief for County of Los Angeles, petitioner in No. 83-1743.

Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Gregory M. Christopher, Counsel, F.C.C., Robert B. Nicholson and Andrea Limmer, Attys., Dept. of Justice, Washington, D.C., were on the brief, for respondents/appellees in Nos. 82-1926, 82-2233 and 83-1743. Margaret G. Halpern and Marjorie S. Reed, Attys., Dept. of Justice, also entered appearences for respondents/appellees.

Lawrence W. Secrest, III, Washington, D.C., with whom John S. Hannon, Jr., Keith Fagan, Alan B. Sternstein, Richard E. Wiley and Philip V. Permut, Washington, D.C., were on the brief for Satellite Television Corporation, intervenor in Nos. 82-1926, 82-2233 and 83-1743. Warren Y. Zeger, Cynthia L. Hathaway, Yvonne S. Distenfeld and Patricia M. Reilly, Washington, D.C., also entered appearances for intervenor, Satellite Television Corporation.

Wilhelmina Reuben Cooke, Washington, D.C., was on the brief for National Citizens Committee for Broadcasting, et al., intervenors in Nos. 82-1926 and 82-2233.

Marvin Rosenberg, James G. Ennis and Thomas Dougherty, Jr., Washington, D.C., were on the brief for U.S. Satellite Broadcasting Company, Inc., intervenor in Nos. 82-1926 and 82-2233.

Jonathan D. Blake and Gregory M. Schmidt, Washington, D.C., were on the brief for Association of Maximum Service Telecasters, Inc., intervenor in No. 82-1926.

James A. McKenna, Jr., Thomas N. Frohock and Dennis P. Corbett, Washington, D.C., were on the brief for Forward Communications Corporation, et al., intervenors in Nos. 82-1926 and 82-2233.

Norman P. Leventhal and Barbara K. Kline, Washington, D.C., were on the brief for Televisa, S.A., intervenor in No. 82-2233.

John D. Lane, Martin J. Gaynes and Ramsey L. Woodworth, Washington, D.C., were on the brief for California Public Safety Radio Association, Inc., intervenor in No. 82-1926.

George Robert Johnson, Jr. was on the brief for National Black Media Coalition, Arlington, Va., intervenor in Nos. 82-1926 and 82-2233.

Joseph M. Kittner, Lawrence J. Movshin and Randolph J. May, Washington, D.C., were on the brief for Manufacturers Radio Frequency Advisory Committee, intervenor in No. 82-1926.

Ronald D. Coleman and Lisa B. Margolis, Washington, D.C., were on the brief for Direct Broadcast Satellite Corporation, intervenor in No. 82-1926.

Allan C. Hubbard, Washington, D.C., entered an appearance for Western Union George Vradenburg, III, Paul B. Jones, New York City, and Joseph DeFranco, Washington, D.C., entered appearances for CBS, Inc., intervenor in Nos. 82-1926 and 82-2233.

Telegraph Company, intervenor in No. 82-1926.

Robert F. Corazzini and Peter H. Feinberg, Washington, D.C., for Satellite Syndicated Systems, Inc., intervenor in Nos. 82-1926 and 82-2233.

Henry A. Solomon and Joel Rothstein Wolfson, Washington, D.C., entered appearances for Graphic Scanning Corporation, intervenor in No. 82-1926.

Jay E. Ricks, David J. Saylor, Peter A. Rohrbach, Washington, D.C., and Carl J. Cangelosi, Piscataway, N.J., entered appearances for RCA American Communications, Inc., intervenor in No. 82-1926.

Before TAMM, MIKVA and DAVIS *, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Of the technological innovations currently revolutionizing the communications field, the most recent, and potentially the most significant, is direct broadcast satellite service (DBS). DBS involves the transmission of signals from the earth to highpowered, geostationary satellites which then beam television signals directly to individual homes equipped to receive them. Use of satellites massively extends the range of a broadcaster's voice by freeing it from the atmospheric limitations that traditionally limit terrestrial broadcasters to narrow broadcast areas; a single DBS signal will eventually be capable of reaching the entire continental United States. For this reason and others, DBS promises several significant advantages over existing television technology: high-quality service to individuals in rural or remote areas where conventional broadcasting is inefficient; the addition of many more channels even in urban areas already receiving several television signals; "narrowcasting" of programs to specialized tastes through the ability to aggregate small, widely dispersed audiences; the development of higher quality visual and audio signals through use of high-definition-television signals; and television transmission of non-entertainment programming, such as medical data and educational information.

The regulatory approach to DBS taken by the Federal Communications Commission (the FCC or the Commission), which we review today, is as novel as the technology with which it is concerned. In essence, the Commission has chosen to deregulate DBS even before the service is born. Two proceedings are before us today that embody that approach: the Commission's Interim DBS regulations, which delineate the basic contours of the regulatory environment that DBS owners and operators will face when DBS becomes operational, and the approval of an actual application to construct this country's first multi-channel DBS system. We find that, on the whole, the FCC has done a commendable job in assuring that regulation in the communications field not impede new technologies that offer substantial public benefits, and we therefore uphold the major portion of the interim DBS regulations and approve in its entirety the FCC's grant of the application to construct an actual DBS system. We also find, however, that in its zeal to promote this new technology, the FCC gave short shrift to certain of its statutory obligations, and we therefore vacate part of the Interim DBS regulations; in addition, our approval of other parts is qualified by several guidelines to which the Commission must hew in its continuing oversight of this nascent technology.

BACKGROUND

In the early 1960s, the development of satellites that could transmit signals over Even before this announcement, the development of DBS had received considerable regulatory attention both internationally and in the United States. Unlike conventional broadcasting, which generally has no extraterritorial effects, DBS requires international supervision both because the signals sent to and from a DBS satellite will spill across international borders and because agreement is needed to fix the orbital locations in space at which various countries' DBS satellites will be located. Much of the early regulatory attention focused on what part of the spectrum to assign for transmission of DBS signals. Domestically, the FCC in 1973 indicated that some spectrum space in the 11.7-12.2 GHz band might eventually be set aside for DBS systems. Frequency Allocations--Satellite Services, 28 Rad.Reg.2d (P & F) 33 (1973). In the course of preparing for the 1979 World Administrative Radio Conference (WARC-79), the Commission then decided to seek international agreement to shift the international allocation of DBS to the 12 GHz band in order to accommodate future U.S. DBS requirements. World Administrative Radio Conference, 70 F.C.C.2d 1193, 1252 (1978). WARC-79 did allocate for international purposes the 12 GHz band to DBS; WARC-79, however, postponed assignment of specific DBS orbital locations and frequencies among Western Hemisphere countries pending completion in 1983 of a Regional Administrative Radio Conference (RARC-83).

great distances offered new promise of expanding the availability of communications services throughout the United States. To develop this satellite technology, Congress created the Communications Satellite Corporation (COMSAT), a privately run, government-subsidized company which was to provide international communications links via satellite. See Communications Satellite Act of 1962, now codified at 47 U.S.C. Secs. 701-44. Because early...

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