Radio-Television News Directors Ass'n v. F.C.C., RADIO-TELEVISION

• Decision Date: 16 January 1987
• Docket Number: No. 85-1691,RADIO-TELEVISION,85-1691
• Citation: 809 F.2d 860
• Parties: , 13 Media L. Rep. 2002 NEWS DIRECTORS ASSOCIATION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Legal Foundation, Media Access Project, et al., Henry Geller, et al., American Newspaper Publishers Association, National Bar Association, et al., EUMEDIA, Inc., Democratic National Committee, et al., Westinghouse Broadcasting and Cable, Inc., Black Citizens for a Fair Media, et al., Office of Communication of the United Church of Christ, et al., American Federation of Labor and Congress of Industrial Organization, American Jewish Congress, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 860

809 F.2d 860

258 U.S.App.D.C. 19, 13 Media L. Rep. 2002

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents American Legal Foundation, Media Access Project, et al. Henry Geller, et al., American Newspaper Publishers Association, National Bar Association, et al., EUMEDIA Inc., Democratic National Committee, et al., Westinghouse Broadcasting and Cable, Inc., Black Citizens for a Fair Media, et al., Office of Communication of the United Church of Christ, et al., American Federation of Labor and Congress of Industrial Organization, American Jewish Congress, Intervenors.

No. 85-1691.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 30, 1986.

Decided Jan. 16, 1987.

Michael P. McDonald, Muskegon, Mich., entered an appearance for intervenors, American Legal Foundation.

N. Terry Maguire entered an appearance for intervenor, American Newspaper Publisher Assn.

Douglas L. Parker, Washington, D.C., entered an appearance for intervenors, Black Citizens for a Fair Black Media, et al.

John D. Lane, Ramsey L. Woodworth and Martin J. Gaynes, Washington, D.C., entered appearances for intervenor, Westinghouse Broadcasting and Cable, Inc.

Laurence Gold and David M. Silberman, Washington, D.C., entered appearances for intervenors, American Federation of Labor, et al.

Charles M. Firestone, Los Angeles, Cal., entered an appearance for intervenor, EUMEDIA, Inc.

Ronald A. Krauss, New York City, entered an appearance for intervenor, American Jewish Congress.

John J. Powers, III and Robert J. Wiggers, Attys., Dept. of Justice, Washington, D.C., entered appearances for Dept. of Justice.

Bruce Douglas Sokler, with whom Charles D. Ferris and Frank W. Lloyd, Washington, D.C., were on the brief for intervenors, Democratic Nat. Committee, et al.

Henry Geller, with whom Donna Lampert, Washington, D.C., was on brief for intervenors, Geller, et al.

Timothy B. Dyk, with whom Andrea Timko, Margaret L. Tobey, Adrienne Masters for CBS, Inc., J. Laurent Scharff, James M. Smith, Washington, D.C., for Radio-TV News, et al., David Hunsaker, McLean, Va., for Freedom of Expression Foundation, Inc., John A. Rafter, Werner K. Hartenberger for Multimedia, Inc., L. Stanley Paige for Post-Newsweek Station, Inc.,

Robert A. Beizer for Tribune Broadcasting Co., Henry L. Baumann, Steven A. Bookshester for Nat. Ass'n of Broadcasters, Michael H. Bader, John M. Pelkey for Meredith Corporation, Thomas Schattenfield, Mania K. Baghdadi for Nat. Radio Broadcasters Ass'n, Bruce W. Sanford, Washington, D.C., for Society of Professional Journalists, were on the joint brief for petitioners.

Jack D. Smith, Gen. Counsel, F.C.C., with whom Daniel M. Armstrong, Associate Gen. Counsel and C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., were on brief for respondents.

Andrew Jay Schwartzman, Robert M. Gurss, J. Clay Smith, Jr., Washington, D.C., and Earle K. Moore, Washington, D.C., were on brief for intervenors, Media Access Project, et al. David W. Danner entered an appearance for intervenors, Media Access Project, et al.

Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, ^* Senior District Judge.

ORDER

PER CURIAM.

Upon consideration of Intervenors' motion to dismiss for lack of jurisdiction, responses thereto, and the oral argument of counsel, for the reasons set forth in the accompanying memorandum, it is

ORDERED by the Court that the motion is hereby granted with respect to Petitioners' constitutional challenge to the fairness doctrine. It is

FURTHER ORDERED by the Court that Intervenors' motion to dismiss for lack of jurisdiction is denied with respect to Petitioners' claim that the Commission's failure to institute a rulemaking to eliminate or modify the fairness doctrine was arbitrary and capricious.

The Clerk is directed to schedule the merits of this case for briefing and argument in advance of the Summer recess.

MEMORANDUM

Petitioners seek review of the FCC's 1985 report on the fairness doctrine, Report Concerning General Fairness Obligations of Broadcast Licensees, 102 F.C.C.2d 143 (1985), in which the Commission concluded the fairness doctrine violates the first amendment and no longer serves the public interest but nevertheless declined to institute a rulemaking to eliminate or modify the doctrine. ¹ In light of the Report, Petitioners ask this Court to declare the fairness doctrine unconstitutional and the Commission's failure to eliminate it, arbitrary and capricious. Intervenors Henry Geller and Donna Lampert, Media Access Project, et al., and the Democratic National Committee, et al. filed motions to dismiss, arguing we lack jurisdiction to review Petitioners' claims, in particular their challenge to the constitutionality of the fairness doctrine. On March 25, 1986, a motions panel of this Court ordered further briefing on the jurisdictional issue and deferred briefing on the merits pending resolution of the motion to dismiss.

Petitioners argue that "in light of the Commission's finding that the fairness doctrine has a...