WAIT Radio v. FCC

• Decision Date: 24 June 1969
• Docket Number: No. 21689.,21689.
• Citation: 418 F.2d 1153
• Parties: WAIT RADIO, a Co-partnership, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Carter Publications, Inc., Clear Channel Broadcasting Service, A. H. Belo Corporation, Midwest Radio-Television, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

418 F.2d 1153 (1969)

WAIT RADIO, a Co-partnership, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee Carter Publications, Inc., Clear Channel Broadcasting Service, A. H. Belo Corporation, Midwest Radio-Television, Inc., Intervenors.

No. 21689.

United States Court of Appeals District of Columbia Circuit.

Argued December 13, 1968.

Decided June 24, 1969.

Mr. Arthur J. Goldberg, Washington, D. C., for appellant. Mr. Robert M. Lichtman, Washington, D. C., also entered an appearance for appellant.

Mr. Stuart F. Feldstein, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, Federal Communications Commission, were on the brief, for appellee. Mrs. Lenore G. Ehrig and Mr. Joseph A. Marino, Counsel, Federal Communications Commission, also entered appearances for appellee.

Messrs. Theodore Baron and Michael Finkelstein, Washington, D. C., were on the brief for intervenor, Carter Publications, Inc.

Messrs. Peter Shuebruk, Herbert M. Schulkind and Howard Jay Braun, Washington, D. C., were on the brief for intervenor, Midwest Radio-Television, Inc.

Mr. R. Russell Eagan, Washington, D. C., entered an appearance for intervenor, Clear Channel Broadcasting Service.

Messrs. William J. Dempsey, and William C. Koplovitz, Washington, D. C., entered appearances for intervenor, A. H. Belo Corporation.

Before DANAHER,^* LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

WAIT Radio brings this appeal to protest a decision by the Federal Communications Commission rejecting as unacceptable its application for authority to operate its station on an unlimited time basis.¹ We think the Commission erred by not giving adequate reasons for denying and refusing to hold a hearing on appellant's request for waiver of certain FCC rules and we remand for further consideration.

I

WAIT operates a Chicago AM radio station on a frequency of 820 kHz, one of the so-called clear channels. Under FCC "clear channel" rules certain AM frequencies are designated as clear channels that can be used at night only by specified stations that broadcast a signal to "white areas," sparsely populated regions that have no local radio service.² Because of the "skywave contour" characteristics of nighttime radio signals, other stations broadcasting on a "clear channal" frequency must close down at night to avoid interference in "white" area reception with those stations particularly authorized to transmit this special nighttime signal. As a result, WAIT operates on a sunrise to sunset basis.

WAIT filed an application requesting a waiver of the clear channel rules. Its proposal included plans for constructing a directionalized antenna that would beam its signal away from "white" areas that were being served by stations WBAP and WFAA, licensed to operate clear channels kHz out of Fort Worth/Dallas, Texas. WAIT's application asserted that by confining its signal, its skywave beam would not interfere with the serviceable contour of the signal from the Texas stations except in regions that receive primary groundwave service from at least one other station,³ and its ostensible violation of Commission rules would not conflict with the policy underlying the "clear channel" rules.

In support of its waiver request WAIT further alleged that its programming of "good" music and forum discussions on matters of public interest is a unique AM service in the Chicago area. Appended to the application were supporting data, of surveys, etc., indicating listener preference for such programming. The application further alleged that the present fluctuating broadcast schedule, dependent on the actual time of sunrise and sunset, and no evening service, is a disadvantage. WAIT makes particular reference to its distinctive adult audience, able during the evening hours to listen to, and understand, serious social, political and educational programs, and it claims that the limitation on its channel is a limitation on communication of ideas.⁴

The Commission rejected WAIT's request in an opinion and order of October 25, 1967, and ordered that the application be returned as unacceptable. WAIT appeals from this decision and order and the Commission's subsequent denial of its petition for reconsideration.

II

Able arguments have been presented on both sides. Appellant stresses to us, as it did in memoranda to the Commission, that First Amendment considerations permeate the field of public broadcasting. First Amendment principles, WAIT says, mean that the Commission's conceded power to license and regulate in the "public interest" must be exercised with circumspection, that the rules must be drawn as narrowly as possible so as to give the widest possible play to freedom of expression. It is contended that the Commission's failure to waive its clear channel rules, where this underlying policy will not be infringed, is contrary to the First Amendment's policy of freedom of expression.

The Commission in effect replies to the First Amendment issue by invoking National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), and other decisions affirming the power to regulate the use of broadcast facilities.

At this juncture, we do not rule on appellant's contentions, which go to the impact of the First Amendment on the substantive content of broadcast regulations. When an application pleads, and offers factual material in support of, a non-frivolous First Amendment contention, an agency may not dismiss it with the routine treatment that might suffice in the ordinary case. We hold that the Commission must state its basis for decision with greater care and clarity than was manifested in its disposition of WAIT's claims, and remand for a clearer statement of reasons.

1. Two strands of doctrine apply to the judicial review of administrative determinations. First is the principle that an agency or commission must articulate with clarity and precision its findings and the reasons for its decisions. The importance of this requirement is inherent in the doctrine of judicial review which places only limited discretion in the reviewing court. As Justice Harlan recently said in the Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968):

The court\'s responsibility is not to supplant a Commission\'s balance of * * * competing interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission\'s orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the methods by which, and the purposes for which, it has chosen to act, as well as its assessment of the consequences of its orders for the character and future development of the industry.⁵

Of course busy agency staffs are not expected to dot "i's" and cross "t's." Our decisions recognize the presumption of regularity.⁶ We adhere to "salutary principles of judicial restraint."⁷ Courts are indulgent toward administrative action to the extent of affirming an order where the agency's path can be "discerned" even if the opinion "leaves much to be desired."⁸

2. The tension between these principles is heightened when a court undertakes to review administrative action on an application for waiver. Presumptions of regularity apply with special vigor when a Commission acts in reliance on an established and tested agency rule. An applicant for waiver faces a high hurdle even at the starting gate. "When an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which warrant such action." Rio Grande Family Radio Fellowship, Inc. v. FCC, supra note 3. Yet an application for waiver has an appropriate place in the discharge by an administrative agency of its assigned responsibilities. The agency's discretion to proceed in difficult areas through general rules is intimately linked to the existence of a safety valve procedure for consideration of an application for exemption based on special circumstances. Permian Basin Area Rate Cases, supra; FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L. Ed.2d 112 (1964); United States v. Storer Broadcasting Co., 351 U.S. 192 at 204-205, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997 (1943); American Airlines v. CAB, 123 U.S.App. D.C. 310, 359 F.2d 624 (en banc), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L. Ed.2d 75 (1966); Pikes Peak Broadcasting v. FCC, supra note 8; WBEN, Inc. v. United States, 396 F.2d 601, 618 (2d Cir. 1968), cert. denied, 393 U.S. 914, 89 S.Ct. 240, 21 L.Ed.2d 200 (1968).

The salutary presumptions do not obviate the need for serious consideration of meritorious applications for waiver, and a system where regulations are maintained inflexibly without any procedure for waiver poses legal difficulties. The Commission is charged with administration in the "public interest." That an agency may discharge its responsibilities by promulgating rules of general application which, in the overall perspective, establish the "public interest" for a broad range of situations, does not relieve it of an obligation to seek out the "public interest" in particular, individualized cases. A general rule implies that a commission need not re-study the entire problem de novo and reconsider policy every time it receives an application for waiver of the rule. On the other hand, a general rule, deemed valid because its overall objectives are in the public interest, may not be in the "public interest" if extended to an applicant who proposes a new service that will not undermine the policy, served by the rule, that has been adjudged in the public interest. An agency need not sift pleadings and documents to identify such applications, but allegations such as those...