WWHT, Inc. v. F. C. C.
| Decision Date | 18 June 1981 |
| Docket Number | No. 80-1613,UA-C,80-1613 |
| Citation | 656 F.2d 807 |
| Parties | WWHT, INC. and Wometco Home Theatre, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Basketball Association, et al.,olumbia Cablevision, Inc., United Cable Television Corp., Motion Picture Assoc. of America, Inc., Gill Industries and Western Communications, Inc., Telease, Inc., National Cable Television Assoc., Inc., Teleprompter Corp., Subscription Television Association, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
N. Frank Wiggins, Washington, D. C., with whom Marcus Cohn and Ronald A. Siegel, Washington, D. C., were on the brief for WWHT, Inc., et al., petitioners in Nos. 80-1613, 80-1614, 80-1647 and 80-1648.
Louis Schwartz and Lawrence M. Miller, Washington, D. C., were on the brief for Radio Broadcasting Co., petitioner in Nos. 80-1634 and 80-1635.
Benito Gaguine and Irving Gastfreund, Washington, D. C., were on the brief for Blonder-Tongue Laboratories, Inc., in Nos. 80-1636 and 80-1637.
Gregory M. Christopher, counsel, Federal Communications Commission, Washington, D. C., with whom Robert R. Bruce, Gen. Counsel, Daniel M. Armstrong, Ass. Gen. Counsel and Stanford M. Litvack, Asst. Atty. Gen., Federal Communications Commission, John J. Powers, III and Andrea Limmer, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents. Terence Mahony, counsel, Federal Communications Commission, Washington, D. C., also entered an appearance for respondent, Federal Communications Commission.
Gardner F. Gillespie, Washington, D. C., with whom Jay E. Ricks, Paul Glist and Barry Simon, Washington, D. C., were on the brief for Teleprompter Corp., intervenor in Nos. 80-1613, 80-1614, 80-1634, 80-1635, 80-1636, 80-1637, 80-1647 and 80-1648.
Robert L. Heald, David G. Rozzelle and Robert L. Pettit, Washington, D. C., were on the brief for Gill Industries and Western Communications, Inc., intervenor in Nos. 80-1613, 80-1614, 80-1636, 80-1637, 80-1647 and 80-1648.
William Weiver and Terry G. Mahn, Washington, D. C., were on the brief for Subscription Television Association, intervenor in Nos. 80-1613 and 80-1614.
Brenda L. Fox and James H. Ewalt, Washington, D. C., were on the brief for The National Cable Television Association, Inc., intervenor in Nos. 80-1613, 80-1614, 80-1634, 80-1635, 80-1636, 80-1637, 80-1647 and 80-1648.
Frederick E. Attaway, Washington, D. C., was on the brief for Motion Picture Association of America, Inc., intervenor in Nos. 80-1613 and 80-1614.
Seymour M. Chase, Washington, D. C., was on the brief for Telease, Inc., intervenor in Nos. 80-1613, 80-1614, 80-1634, 80-1635, 80-1636, 80-1637, 80-1647 and 80-1648.
Philip R. Hochberg, Washington, D. C., was on the brief for National Basketball Association, et al., intervenor in Nos. 80-1613, 80-1614, 80-1634, 80-1635, 80-1636, 80-1637, 80-1647 and 80-1648.
John P. Cole and Joseph R. Reifer, Washington, D. C., entered appearances for UA-Columbia Cablevision, Inc., et al., intervenor in Nos. 80-1613, 80-1614, 80-1634, 80-1635, 80-1636, 80-1637, 80-1647 and 80-1648.
Before ROBINSON, Chief Judge, and MacKINNON and EDWARDS, Circuit Judges.
Opinion for the court filed by Circuit Judge HARRY T. EDWARDS.
This case raises the questions of whether, and under what circumstances, a reviewing court may require an agency to institute rulemaking proceedings after the agency has denied a petition for rulemaking.
Petitioners in this case seek review of two orders of the Federal Communications Commission (FCC), Memorandum Opinion and Order-Signal Carriage Rules-STV, 77 F.C.C.2d 523 (1980), and Order-Editorial Amendment, 77 F.C.C.2d 533 (1980). The effect of these two orders was to exclude the scrambled signals of local subscription (pay) television stations ("STV") from the mandatory carriage requirements of local cable television ("CATV") operators. 1
In the first order ("Signal Carriage Rules-STV" ), the Commission denied a petition for rulemaking, filed by Blonder-Tongue Laboratories, Inc. (BTL), requesting that the FCC rules be amended so as to require cable television stations located within the Grade B contours of television broadcast stations authorized to broadcast subscription programs to carry the subscription television signals of those stations. See "Petition for Rulemaking," reprinted in Joint Appendix ("J.A.") at 20. The Commission also denied a "Request for Declaratory Ruling," reprinted in J.A. at 102, filed by Suburban Broadcasting Corporation ("Suburban"), that the existing rules of the FCC already required cable carriage of subscription television signals.
In the second order ("Editorial Amendment" ), the Commission issued an interpretative rule "(s)o as to avoid further confusion on the question of the obligations of cable television systems and the rights of subscription television stations regarding the carriage of subscription broadcast program(s)." 77 F.C.C.2d at 533. In particular, the Commission acted to amend its rules to make it clear that
the cable television signal carriage rules ... were not intended to and do not require cable television system operators to carry subscription (scrambled or pay) television programs broadcast by subscription television stations.
For the reasons hereafter enumerated, we hold that, except where there is evidence of a "clear and convincing legislative intent to negate review," Natural Resources Defense Council v. S.E.C., 606 F.2d 1031, 1043 (D.C.Cir.1979), an agency's denial of a rulemaking petition is subject to judicial review. However, we believe that the decision to institute rulemaking is one that is largely committed to the discretion of the agency, and that the scope of review of such a determination must, of necessity, be very narrow.
With these standards in mind, we cannot find that judgment of the Commission in Signal Carriage Rules-STV was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; we therefore affirm the order of the Commission denying the petition for rulemaking. As for the order in Editorial Amendment, we find that the Commission reasonably concluded that existing regulations did not require cable carriage of STV transmissions, and that it properly adopted an "interpretative rule" to this effect. 2
In 1968, the FCC established a nationwide over-the-air subscription television broadcasting service, and adopted rules designed to ensure the integration of the new STV service into the total television broadcasting system. Fourth Report and Order-Subscription Television, 15 F.C.C.2d 466 (1968). At the same time when the Fourth Report was issued, the FCC released a Third Further Notice of Proposed Rulemaking, 15 F.C.C.2d 601 (1968), in which the Commission noted that:
In establishing over-the-air subscription TV service, we have concluded that it is a broadcasting service, and the rules adopted are designed to assure its effective integration into the total television broadcasting system. We believe that as a part of that system it is entitled to protection with regard to CATV operations, just as conventional television broadcasting is. The present CATV rules (47 C.F.R. §§ 74.1100-74.1109) contain carriage and nonduplication requirements concerning conventional TV stations. Not to require carriage of STV signals would, in our opinion, be inconsistent with sections 1 and 307(b) of the act and with our view that STV is broadcasting.
Id. 3 Consistent with these views, the Commission proposed amendments to the cable carriage rules that would have required cable television systems to carry the signals of local subscription television stations; the Commission also invited comments from interested persons. 15 F.C.C.2d at 603-04.
No further action was taken with respect to the 1968 rulemaking proceeding until September 21, 1978, when the Commission terminated the proceeding without adopting the proposed amendments. Order-Proceeding Terminated, 69 F.C.C.2d 1622 (1978). The 1978 Order read, in part, as follows:
The comments filed in this Docket are now stale and a number of changes in the nature of our regulations have been made since the proceeding was commenced so that the record does not provide an adequate basis for the adoption of rules. Of particular importance is the lack of a record concerning the technical details involved in cable television carriage of broadcast STV programming. Moreover, we now have in progress our inquiry in Docket 21284 (65 FCC2d 9 (1977)) in which we are gathering information concerning the overall economic relationship between cable television and broadcast television. Although that proceeding is concerned with the relationship between conventional stations and cable systems, it may also provide some additional insight into the policies that should be applied to cable STV carriage. We are aware that there are parties interested in an expedited resolution of this proceeding through the adoption of rules. However, the lack of adequate comment in the record presents a procedural barrier to that action. At this point we believe the most efficacious procedure for those desiring further action would be the filing of petitions for rule making setting forth the rule changes requested and the public interest justification therefore. Our decision terminating this proceeding is not intended to foreclose the possibility of a new proceeding being commenced if that appears warranted.
69 F.C.C.2d 1622-23 (footnote omitted). 4
No appeal was taken from the Commission's order to terminate the 1968 rulemaking proceeding. However, on September 22, 1978, BTL petitioned the Commission to institute rulemaking proceedings to amend its mandatory cable carriage rules to include the carriage of STV signals. In support of the petition, BTL relied on the comments...
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