Newspaper Guild v. Levi

• Decision Date: 19 August 1976
• Docket Number: No. 75-1014,75-1014
• Citation: 539 F.2d 755
• Parties: , 1976-1 Trade Cases 60,950, 1 Media L. Rep. 2709 The NEWSPAPER GUILD v. Edward H. LEVI, Attorney General, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 755

539 F.2d 755

176 U.S.App.D.C. 276, 1976-1 Trade Cases 60,950,

1 Media L. Rep. 2709

The NEWSPAPER GUILD v. Edward H. LEVI, Attorney General, Appellant.

No. 75-1014.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 9, 1975.

Decided July 1, 1976.

Rehearing Denied Aug. 19, 1976.

Barry Grossman, Washington, D.C., with whom Howard E. Shapiro and Samuel R. Simon, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellant.

Victor H. Kramer, Washington, D.C., with whom Richard B. Wolf, Washington, D.C., was on the brief, for appellee.

Before McGOWAN, TAMM and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

Dissenting opinion filed by Circuit Judge TAMM.

McGOWAN, Circuit Judge:

This case presents a narrow, albeit important, issue of statutory construction: Does section 4(b) of the Newspaper Preservation Act of 1970 make it unlawful to enter a joint newspaper operating agreement without the prior approval of the Attorney General, or does it rather require prior approval only for parties seeking an antitrust exemption for such an agreement? The District Court enjoined a Justice Department regulation implementing the latter interpretation. For the reasons set forth below, we reverse.

I

The Newspaper Preservation Act of 1970, 15 U.S.C. §§ 1801-04 (1970), was a congressional reaction against a successful antitrust suit brought by the Department of Justice against a combination of Tucson newspapers in existence since 1940. See Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). Bills were promptly introduced in both houses of the 90th Congress to protect the Tucson publications and twenty-one other then-existing joint newspaper operating agreements from antitrust prosecution and private liability. H.R. 19123 was referred to the House Antitrust Subcommittee, which held five days of hearings; the bill, however, was not reported out of committee. A similar Senate Bill, S. 1312, was favorably reported by the Senate Subcommittee on Antitrust and Monopoly after extensive hearings, but the Judiciary Committee did not have time to act on it before the end of that session.

At the beginning of the first session of the Ninety-first Congress, bills were again introduced in both the House and Senate to sanction the Tucson combination and to insulate other existing joint operating agreements from antitrust prosecution. Both S. 1520 and H.R. 279 contained the same provisions considered by prior congressional committees reviewing S. 1312 and H.R. 19123. Among other objectives, the proposed bills declared a public interest in preserving the publication of newspapers where economic distress has caused the creation of joint operating arrangements. The proposals also defined a failing newspaper more broadly than had the Supreme Court in Citizen Publishing. ¹

Section 4 provided:

(a) It shall not be unlawful under any antitrust law for any person to propose, enter into, perform, enforce, renew, or amend any joint newspaper operating arrangement if, at the time at which such arrangement is or was first entered into, not more than one of the newspaper publications involved in the performance of such arrangement was a publication other than a failing newspaper.

(b) Nothing contained in this Act shall be construed to exempt from any antitrust law any predatory pricing, any predatory practice, or any other conduct in the otherwise lawful operations of a joint newspaper operating arrangement which would be unlawful under any antitrust law if engaged in by a single entity. Except as provided in this Act, no joint newspaper operating arrangement or any party thereto shall be exempt from any antitrust law.

At the start of the Senate hearings on S. 1520, Senators Dirksen and Brooke proffered a number of amendments for consideration. Senator Dirksen's amendment changed section 4 to include, inter alia, the language which eventually became the section at issue in this suit:

(b) It shall be unlawful for any person to propose, enter into, perform, or enforce a joint operating arrangement, not already in effect, except with the prior written consent of the Attorney General of the United States. Prior to granting such approval, the Attorney General shall determine that not more than one of the newspaper publications involved in the performance of such an arrangement was a publication other than a failing newspaper Provided, however, that any publisher may, at any time, propose, enter into, perform, or enforce an agreement with any person if such agreement was not prohibited by law prior to the effective date of this Act.

Hearings on S. 1520 Before the Subcomm. on Antitrust and Monopoly of the Senate Judiciary Comm., 91st Cong., 1st Sess. 4 (1969) ("Senate Hearings "). On January 30, 1970, the Senate passed S. 1520 including the Dirksen amendment, 116 Cong.Rec. 2018 (1970).

Subsequently, the House Judiciary Committee favorably reported H.R. 279, as amended. H.R.Rep. No. 91-1193, 91st Cong., 2d Sess. (1970). The reported bill contained substantially the language of the Dirksen amendment to section 4, ² except that it omitted without comment the final proviso of section 4(b). H.R. 279, as amended, was accepted by the House in lieu of S. 1520, 116 Cong.Rec. 23180 (1970), and promptly adopted by the Senate without conference, id. at 24435.

More than one year after passage of the Act, the Department of Justice gave notice of a proposed rulemaking concerning the Act. 36 Fed.Reg. 20435 (1971). Along with definitions and procedures for filing both the terms of new arrangements and those of renewals or amendments to existing arrangements, the proposed rulemaking included a purpose section which specified in relevant part:

These regulations set forth the procedure by which application may be made to the Attorney General for his approval of joint newspaper operating arrangements entered into after July 24, 1970. . . .

Id., § 48.1. A few weeks later, the Department of Justice gave notice of an addition to the proposed purpose section:

The Newspaper Preservation Act does not require that all joint newspaper operating arrangements obtain the prior written consent of the Attorney General. The Act and these regulations provide a method for newspapers to obtain the benefit of a limited exemption from the antitrust laws if they desire to do so. Joint newspaper operating arrangements that are put into effect without the prior written consent of the Attorney General remain fully subject to the antitrust laws.

Id. at 23630, § 48.1. The proposed regulation, including the addition, was promulgated as an interim regulation on January 2, 1974. 39 Fed.Reg. 7 (1974).

The Newspaper Guild filed suit shortly thereafter alleging that the regulation contravened section 4(b) of the Act. On motions for dismissal and summary judgment, the District Court declared the challenged regulation invalid and enjoined its implementation. Newspaper Guild v. Saxbe, 381 F.Supp. 48, 53 (D.D.C.1974). ³ The Department of Justice appeals from that final order.

II

A rigidly literal reading of section 4(b) undeniably provides support for the District Court's conclusion that "all joint newspaper operating arrangements not in effect on July 24, 1970, must obtain the Attorney General's consent before they may be put into effect." 381 F.Supp. at 53. But, as the Supreme Court has frequently reminded us, "it (is) fundamental that a section of a statute should not be read in isolation from the context of the whole Act, and that in fulfilling our responsibility in interpreting legislation, 'we must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy.' " Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962), quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 100 L.Ed. 309 (1956) (footnotes omitted); see e. g., Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 (1943). After reviewing the Act in that spirit, we cannot agree that the District Court's interpretation of section 4(b) is compelled either by the language of the statute or its underlying legislative history.

It is appropriate to start with the views of Senator Dirksen, the sponsor of the amendment that eventually became section 4(b). He explained his proposed amendment as follows:

There has been some concern expressed regarding the possibility of new joint operating arrangements being established under the terms of S. 1520, as introduced. There are still some 36 or 37 cities where two or more papers are competing commercially as well as editorially. And, there has been a genuine fear expressed by suburban papers, newspaper unions, and some segments of the public and (sic) to the dangers inherent if some of these other papers were to improperly enter into joint operating arrangements resulting in what might be a stronger competitive force, the loss of jobs, and, maybe, eventually a loss of independent viewpoints.

This is what I had in mind in proposing Section 4(b). Before any new joint operating arrangements could come into being, the papers involved would be required to come before the Attorney General for his approval. This is not really an unusual situation, since the Department of Justice now receives prior notice of many impending mergers by the parties, who themselves are seeking 'release' letters. I envision the procedures under section 4(b) to be akin to the 'release' letter technique now employed by the Department. Before authorizing such arrangements in the future, the Department could hear from other interested parties competing papers, unions, etc. as well as make its own investigation, in order to be certain that the new arrangement is essential and is justified.

Further, Section 4(b) will act as a brake upon other newspapers which might...