Washington Ass'n for Television and Children v. F.C.C., 82-1524

• Decision Date: 22 July 1983
• Docket Number: No. 82-1524,82-1524
• Citation: 229 U.S.App.D.C. 363,712 F.2d 677
• Parties: , 9 Media L. Rep. 2160 WASHINGTON ASSOCIATION FOR TELEVISION AND CHILDREN, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Evening News Association, WJLA, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 677

712 F.2d 677

229 U.S.App.D.C. 363, 9 Media L. Rep. 2160

WASHINGTON ASSOCIATION FOR TELEVISION AND CHILDREN, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee National Broadcasting Company, Evening News Association WJLA, Inc., Intervenors.

No. 82-1524.

United States Court of Appeals District of Columbia Circuit.

Argued March 11, 1983.

Decided July 19, 1983.

As Amended July 22, 1983.

Appeal from an Order of the Federal Communications Commission.

Angela J. Campbell, Washington, D.C., with whom Wilhelmina Reuben Cooke, Washington, D.C., was on brief, for appellant.

C. Grey Pash, Jr., Attorney, F.C.C., Washington, D.C., with whom Stephen A. Sharp, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for appellee.

Arthur B. Goodkind, Washington, D.C., was on brief for intervenor, National Broadcasting Co., Inc.

J. Laurent Scharff and Jack N. Goodman, Washington, D.C., were on brief for intervenor, Evening News Ass'n.

Howard F. Roycroft, Washington, D.C., was on brief for intervenor, WJLA, Inc.

Before ROBINSON, Chief Judge, WALD, Circuit Judge, and GORDON, ^* Senior District Judge for the Western District of Kentucky.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner Washington Association for Television and Children (WATCH) filed petitions with the Federal Communications Commission (FCC or Commission) opposing the license renewals of three television stations in Washington, D.C. on the grounds that the stations had failed to provide any regularly scheduled weekday children's programs, in contravention of Commission policy. The Commission granted the license renewals without holding a hearing, explaining that although licensees had a duty to provide weekday children's programming, they had no duty to provide it on a regularly scheduled basis. Evening News Association, 89 F.C.C.2d 911 (1982). WATCH appeals the Commission's refusal to hold a hearing. We conclude that the Commission reasonably interpreted its prior policy statement as not imposing a flat requirement that all television stations provide regularly scheduled weekday children's programs.

I. BACKGROUND

A. The Commission's Policy on Children's Programming

In 1974, the FCC, after a lengthy rulemaking, issued a Children's Television Report and Policy Statement ("Children's Policy Statement") in which it outlined broadcasters' duty to provide children's programming. 50 F.C.C.2d 1 (1974), reconsid. denied, 55 F.C.C.2d 691 (1975). ¹

The FCC found that "broadcasters have a special obligation to serve children," 50 F.C.C.2d at 5, but declined to establish numerical requirements for what quantity of children's programming would satisfy that obligation. The Commission decided instead to consider "on an ad hoc basis" whether TV stations were devoting enough time to children's shows. Id. at 6 (footnote omitted). The Commission emphasized, however, that:

[W]e do expect stations to make a meaningful effort in this area.... [A] few stations present no programs at all for children. We trust that this Report will make it clear that such performance will not be acceptable....

Id.

The Commission also expressed concern over the "tendency on the part of many stations to confine all or most of their children's programming to Saturday and Sunday mornings" and the "relative absence" of weekday programming. Id. at 8. While it again declined to adopt a "specific scheduling rule," the Commission explained that:

[I]t is [not] a reasonable scheduling practice to relegate all [children's] programming ... to one or two days ... [and] we do expect to see considerable improvement in scheduling practices in the future.

Id. In short, the Commission expected television stations to provide weekday children's programming, but did not specify how much or what kind.

B. Proceedings Before the Commission

All television stations must periodically apply to the FCC to have their licenses renewed. The FCC may generally grant a license renewal without a hearing if it finds that the "public interest, convenience, and necessity" will be served by granting the renewal. 47 U.S.C. § 309(a). The Commission must, however, hold a hearing to determine whether to grant a renewal if: (1) it receives a petition to deny the renewal that raises a "substantial and material question of fact"; or (2) "the Commission for any reason is unable to make the finding [that the public interest, convenience, and necessity will be served by granting the license]." Id. § 309(e); see United States v. FCC, 652 F.2d 72, 88-90 (D.C.Cir.1980) (en banc); Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 629-31 (D.C.Cir.1978) (en banc).

When the NBC, CBS, and ABC-affiliated stations in Washington, D.C. requested renewal of their licenses, WATCH filed petitions to deny the renewals, claiming that the Children's Policy Statement requires all television stations to broadcast regularly scheduled weekday children's programs and that the stations had not met this requirement. ² WATCH asked the Commission to hold a hearing on whether to renew the stations' licenses.

The stations' failure to broadcast regularly scheduled weekday children's programs is not in dispute. We therefore deal only with the second requirement for a hearing: whether the Commission was unable to find that renewal is in the "public interest."

WATCH "purposefully restricted [its petition] to this single issue" of regularly scheduled weekday programming and addressed neither the quality nor the quantity of non-regularly scheduled children's programs. WATCH Petition to Deny (NBC), at 6 n. 6, J.A. at 6, 11 n. 6. In response, the stations admitted carrying no regularly scheduled programs but claimed to present "an adequate amount of [non-regularly scheduled] children's programming." Evening News Association, 89 F.C.C.2d at 912. In replying to the stations, WATCH did not address "the quantity or sufficiency of the weekday children's programming described by the licensees." Id. at 913. Instead, it "reiterate[d]" that it was "not challenging [the stations'] programming decisions on the basis of content or quality, but simply on [their] failure to provide any regularly scheduled weekday children's programming." WATCH Reply to Opposition to Petition to Deny (NBC) at 7, J.A. at 144, 150 (footnote omitted).

The Commission found that the Policy Statement did not require stations to provide regularly scheduled programs so long as the stations provided an adequate amount of non-regularly scheduled programming. It therefore rejected WATCH's request for a hearing and granted the license renewals. Evening News Association, 89 F.C.C.2d at 915. The Commission did not address whether the licensees in fact provided adequate weekday children's programming; it believed that WATCH had not raised that issue. See id. ("WATCH specifically limits its petitions to the single issue of ... regularly scheduled weekday children's programming") (emphasis in original).

WATCH appealed directly to this court without petitioning the FCC for rehearing.

C. Proceedings Before this Court

In its opening brief to this court, WATCH again states the issue as whether the FCC was required to hold a hearing "where ... the licensees provided no regularly scheduled weekday programming for children." WATCH Brief at 2 (emphasis added). In its reply brief, WATCH for the first time complains that it meant to object more broadly to the "general sufficiency of the licensees' weekday programming," WATCH Reply Brief at 6, and that it used the absence of regularly scheduled programming merely to "illustrate[ ]" that general objection, id. at 4. Moreover, there is some force to its argument that the one or two hours per month of weekday children's specials broadcast by each of the three stations do not measure up to the Commission's expectation of "considerable improvement in scheduling."

Our first task is to consider whether this broader claim is properly before us. We hold in part II that it is not. In part III, we affirm the FCC's interpretation of the Children's Policy Statement as not unequivocally requiring television stations to broadcast regularly scheduled weekday children's programs.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

As a general rule, claims not presented to the agency may not be made for the first time to a reviewing court. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952):

Simple fairness ... requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.

Accord Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 394 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). See generally 4 K. Davis, Administrative Law Treatise § 26:7 (2d ed. 1983). Moreover, this general requirement of exhaustion of administrative remedies is explicitly codified in 47 U.S.C. § 405, which requires parties to petition the FCC for rehearing before raising a new issue on judicial review:

The filing of a petition for rehearing shall not be a condition precedent to judicial review of [an FCC decision] except where the party seeking such review ... relies on questions of law or fact upon which the Commission ... has been afforded no opportunity to pass.

Our cases construe § 405 to require complainants, before coming to court, to give the FCC a "fair opportunity" to pass on a legal or factual argument. Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 739 (D.C.Cir.1976); accord United States v. FCC, 707 F.2d 610, 619 (D.C.1983); Rogers Radio Communication Services v. FCC, 593 F.2d 1225, 1229-30 (D.C.Cir.1978). ³ In this case, we do not think the Commission had a fair opportunity to decide whether the stations' non-regularly scheduled weekday...