Federal Communications Commission v. WNCN Listeners Guild
Federal Communications Commission v. WNCN Listeners Guild
Opinion of the Court
delivered the opinion of the Court.
Sections 309 (a) and 310 (d) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq. (Act), empower the Federal Communications Commission to grant an application for license transfer
This issue arose when, pursuant to its informal rulemaking authority, the Commission issued a “Policy Statement” concluding that the public interest is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer. Respondents, a number of citizen groups interested in fostering and preserving particular entertainment formats, petitioned for review in the
I
Beginning in 1970, in a series of cases involving license transfers,
In January 1976, the Commission responded to these decisions by undertaking an inquiry into its role in reviewing format changes.
Following public notice and comment, the Commission issued a Policy Statement
The Commission also concluded that practical considerations as well as statutory interpretation supported its reluctance to regulate changes in formats. Such regulation would require the Commission to categorize the formats of a station’s prior and subsequent programming to determine whether
Finally, the Commission explained why it believed that market forces were the best available means of producing diversity in entertainment formats. First, in large markets, competition among broadcasters had already produced “an almost bewildering array of diversity” in entertainment formats.
Although conceding that it possessed neither the expertise nor the authority to make policy decisions in this area, the Court of Appeals asserted that the format doctrine was “law,” not “policy,”
II
Rejecting the Commission’s reliance on market forces to develop diversity in programming as an unreasonable interpretation of the Act’s public-interest, standard, the Court of Appeals held that in certain circumstances the Commission is required to regard a change in entertainment format as a substantial and material fact in deciding whether a license renewal or transfer is in the public interest. With all due respect, however, we are unconvinced that the Court of Appeals’ format doctrine is compelled by the Act and that the Commission’s interpretation of the public-interest standard must therefore be set aside.
It is common ground that the Act does not define the term “public interest, convenience, and necessity.”
The Commission has provided a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats. The Court of Appeals and the Commission agree that in the vast majority of cases market forces provide sufficient diversity. The Court of Appeals favors Government intervention when there is evidence that market forces have deprived the public of a “unique” format, while the Commission is content to rely on the market, pointing out that in many cases when a station changes its format, other stations will change their formats to attract listeners who preferred the discontinued format. The Court of Appeals places great value on preserving diversity among formats, while the Commission emphasizes the value of intraformat as well as interformat diversity. Finally, the Court of Appeals is convinced that review of format changes would result in a broader range of formats, while the Commission believes that Government intervention is likely to deter innovative programming.
In making these judgments, the Commission has not forsaken its obligation to pursue the public interest. On the contrary, it has assessed the benefits and the harm likely to flow from Government review of entertainment programming, and on balance has concluded that its statutory duties are best fulfilled by not attempting to oversee format changes. This decision was in major part based on predictions as to the probable conduct of licensees and the functioning of the broadcasting market and on the Commission’s assessment of its capacity to make the determinations required by the format doctrine. The Commission concluded that “ ‘[e]ven after
Our opinions have repeatedly emphasized that the Commission’s judgment regarding how the public interest is best served is entitled to substantial judicial deference. See, e. g., FCC v. National Citizens Committee for Broadcasting, supra; FCC v. WOKO, Inc., 329 U. S. 223, 229 (1946). Furthermore, diversity is not the only policy the Commission must consider in fulfilling its responsibilities under the Act. The Commission’s implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals, for “the weighing of policies under the ‘public interest’ standard is a task that Congress has delegated to the Commission in the first instance.” FCC v. National Citizens Committee for Broadcasting, supra, at 810. The Commission’s position on review of format changes reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. As we see it, the Commission’s Policy Statement is in harmony with cases recognizing that the Act seeks to preserve journalistic discretion while promoting the interests of the listening public.
In the past we have stated that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . .”
It is contended that rather than carrying out its duty to make a particularized public-interest determination on every application that comes before it, the Commission, by invariably relying on market forces, merely assumes that the public interest will be served by changes in entertainment format. Surely, it is argued, there will be some format changes that will be so detrimental to the public interest that inflexible application of the Commission’s Policy Statement would be inconsistent with the Commission’s duties. But radio broadcasters are not required to seek permission to make format changes. The issue of past or contemplated entertainment format changes arises in the courses of renewal and transfer proceedings; if such an application is approved, the Commission does not merely assume but affirmatively determines that the requested renewal or transfer will serve the public interest.
Under its present policy, the Commission determines whether a renewal or transfer will serve the public interest without reviewing past or proposed changes in entertainment format. This policy is based on the Commission’s judgment that market forces, although they operate imperfectly, not only will more reliably respond to listener preference than would format oversight by the Commission but also will serve the end of increasing diversity in entertainment programming. This Court has approved of the Commission’s goal of promoting diversity in radio programming, FCC v. Midwest Video Corp., 440 U. S. 689, 699 (1979), but the Commission is nevertheless vested with broad discretion in determining how much weight should be given to that goal and what policies should be pursued in promoting it. The Act itself, of course, does not specify how the Commission should make its public-interest determinations.
A major underpinning of its Policy Statement is the Commission’s conviction, rooted in its experience, that renewal
It is also contended that since the Commission has re
These cases do not require us to consider whether the Commission’s present or past policies in the area of nonentertainment programming comply with the Act. We attach some weight to the fact that the Commission has consistently expressed a preference for promoting diversity in entertainment programming through market forces, but our decision ultimately rests on our conclusion that the Commission has provided a reasonable explanation for this preference in its Policy Statement.
We decline to overturn the Commission’s Policy Statement, which prefers reliance on market forces to its own attempt to oversee format changes at the behest of disaffected listeners. Of course, the Commission should be alert to the consequences of its policies and should stand ready to alter its rule if necessary to serve the public interest more fully. As we stated in National Broadcasting Co. v. United States:
"If time and changing circumstances reveal that the ‘public interest’ is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.” 319 U. S., at 225.
IV
Respondents contend that the Court of Appeals’ judgment should be affirmed because, even if not violative of the Act, the Policy Statement conflicts with the First Amendment rights of listeners “to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969). Red Lion held that the Commission’s “fairness doctrine” was consistent with the public-interest standard of the Communica
Contrary to the judgment of the Court of Appeals, the Commission’s Policy Statement is not inconsistent with the Act. It is also a constitutionally permissible means of implementing the public-interest standard of the Act. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
a , , So ordered.
We shall refer to transfers and assignments of licenses as “transfers.”
Title 47 U. S. C. §309 (a) provides:
“Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which section 308 of this title applies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon examination of such application and upon consideration of such other matters as the Commission may officially notice, shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application.”
Title 47 U. S. C. § 310 (d) provides in part:
“No construction permit or station license, or any rights thereunder shall be transferred, assigned, or disposed of in any manner, voluntarily or
The Act requires broadcasting station licensees to apply for license renewal every three years. 47 U. S. C. §307 (d). It provides that the Commission shall grant the application for renewal if it determines that the public interest, convenience, and necessity will be served thereby. §§ 307 (a), (d), 309 (a).
Section 309 (d)(1) of the Act provides that any party in interest may petition the Commission to deny an application for license transfer or renewal, but the petition must contain specific allegations of fact sufficient to show that granting the application would be “prima facie inconsistent” with the public interest. If the Commission determines on the basis of the application, the pleadings filed, or other matters which it may officially notice that no substantial and material questions of fact are presented, it may grant the application and deny the petition without conducting a hearing. § 309 (d) (2). However, if a substantial and material question of fact is presented or if the Commission is unable to determine that granting the application would be consistent with the public interest, the Commission must conduct a hearing on the application. § 309 (d) (2).
Citizens Committee to Save WEFM v. FCC, 165 U. S. App. D. C. 185, 506 F. 2d 246 (1974) (en banc); Citizens Committee to Keep Progressive Rock v. FCC, 156 U. S. App. D. C. 16, 478 F. 2d 926 (1973) ; Lakewood Broadcasting Service, Inc. v. FCC, 156 U. S. App. D. C. 9, 478 F. 2d 919 (1973); Hartford Communications Committee v. FCC, 151 U. S. App. D. C. 354, 467 F. 2d 408 (1972); Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, 141 U. S. App. D. C. 109, 436 F. 2d 263 (1970).
We shall refer to the Court of Appeals’ views on when the Commission must review changes in entertainment format as the “format doctrine,” and we shall often refer to a change in entertainment programming by a radio broadcaster as a change in format.
In Citizens Committee to Save WEFM v. FCC, for example, the court directed the Commission to consider whether a “fine arts” format was a reasonable substitute for a classical music format. 165 U. S. App. D. C., at 203-204, 506 F. 2d, at 264 — 265. The court observed that 19th-century classical music and 20th-century classical music could be classified as different formats, since “the loss of either would unquestionably lessen diversity.” Id., at 204, n. 28, 506 F. 2d, at 265, n. 28.
These criteria were summarized by the Court of Appeals in the opinion below. 197 U. S. App. D. C. 319, 323-324, 610 F. 2d 838, 842-843 (1979). It was also stated that the format doctrine logically applies to renewal as well as transfer applications. The court noted that a midterm format change would not be considered until the broadcaster applied for license renewal. Id., at 330, and n. 29, 610 F. 2d, at 849, and n. 29. See also Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, supra, at 118, 436 F. 2d, at 272.
See Citizens Committee to Preserve the Voice of the Arts in Atlanta v. FCC, supra, at 113, 436 F. 2d, at 267. See also 197 U. S. App. D. C., at 330, n. 31, 610 F. 2d, at 849, n. 31.
Citizens Committee to Save WEFM v. FCC, supra, at 207, and n. 34, 506 F. 2d, at 268, and n. 34.
Although the issue before the Court of Appeals in each of the format cases was whether a hearing was required, the court warned the Commission in Citizens Committee to Keep Progressive Rock that its public-interest determination would also be subject to judicial review:
“[FJailure to render a reasoned decision will be, as always, reversible error. No more is required, no less is accepted.” 156 U. S. App. D. C., at 24, 478 F. 2d, at 934.
Notice of Inquiry, Development of Policy re: Changes in the Entertainment Formats of Broadcast Stations, 57 F. C. C. 2d 580 (1976).
The Commission also invited interested parties to consider the impact of the format doctrine on First Amendment values.
Memorandum Opinion and Order, 60 F. C. C. 2d 858 (1976) (Policy Statement), reconsideration denied, 66 F. C. C. 2d 78 (1977).
Section 303 (r) of the Act, 47 U. S. C. §303 (r), provides that “the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act].”
The Commission observed that radio broadcasters naturally compete in the area of program formats, since there is virtually no other form of competition available. A staff study of program diversity in major markets supported the Commission’s view that competition is effective in promoting diversity in entertainment formats. Policy Statement, supra, at 861.
The Notice of Inquiry also explained the Commission’s reasons for relying on competition to provide diverse entertainment formats:
“Our traditional view has been that the station’s entertainment format is a matter best left to the discretion of the licensee or applicant, since he will tend to program to meet certain preferences of the area and fill significant voids which are left by the programming of other stations. The Commission’s accumulated experience indicates that . . . [frequently,
Section 3 (h) of the Act provides that “a person engaged in radio broadcasting shall not ... be deemed a common carrier.” 47 U. S. C. § 153 (h). See also, FCC v. Sanders Brothers Radio Station, 309 U. S. 470, 474 (1940) (“[B]roadcasters are not common carriers and are not to be dealt with as such. Thus the [Communications] Act recognizes that the field of broadcasting is one of free competition”) (footnote omitted).
The Commission discussed the problems arising from “the obligation to continue service” created by the Court of Appeals’ format doctrine. The Commission apparently used this phrase to describe those cases in which it thought the Court of Appeals would hold that an application for license transfer or renewal should have been denied because the abandonment of a unique entertainment format was inconsistent with the public interest. Although the format cases only addressed whether a hearing was required, the Court of Appeals implied that in some situations the Commission would be required to deny an application because of a change in entertainment format. See Citizens Committee to Keep Progressive Rock v. FCC, 156 U. S. App. D. C., at 24, 478 F. 2d, at 934.
The Commission also addressed the “constitutional dimension” of the format doctrine. It concluded that the doctrine would be likely to deter many licensees from experimenting with new forms of entertainment programming, since the licensee could be burdened with the expense of participating in a hearing before the Commission if for some reason it wished to abandon the experimental format. Thus, “[t]he existence of the obligation to continue service . . . inevitably deprives the public of the best efforts of the broadcast industry and results in an inhibition of constitutionally protected forms of communication with no off-setting justifications, either in terms of specific First Amendment or diversity-related values or in broader public interest terms.” Policy Statement, supra, at 865.
In the Notice of Inquiry, the Commission discussed the difficult task of categorizing formats, noting that the Court of Appeals had suggested in the WEFM case that 19th-century classical music should be distinguished from 20th-century classical music. Notice of Inquiry, supra, at 583, and n. 2.
Policy Statement, 60 F. C. C. 2d, at 862-864.
Id., at 863.
The Commission pointed out that a significant segment of the public may strongly prefer one station to another even if both stations play the same type of music. Although it would be difficult for the Commission to compare the strength of intraformat preferences to the strength of inter-format preferences, market forces would naturally respond to intraformat preferences, albeit in an imperfect manner. Id., at 863-864.
Id., at 866, n. 8.
The court was of the view that the Commission’s “Notice of Inquiry” revealed a substantial bias against the WEFM decision, and that the Commission had overstated the administrative problems created by the format doctrine.
The study was released prior to the Commission’s denial of reconsideration of its Policy Statement. The court questioned whether the public had had an adequate opportunity to comment on the study but found it unnecessary to consider whether the Policy Statement should be set aside on that ground:
“Petitioners urge this defect as an independent ground for overturning the Commission. We agree that the study does raise serious questions about the overall rationality and fairness of the Commission’s decision. However, because certain broader defects, of which the study is symptomatic, are fatal to the Commission’s action, we need not decide whether the failure to obtain public comment on the study is itself of sufficient gravity to warrant rejection of the Policy Statement." 197 U. S. App. D. C., at 328, n. 24, 610 F. 2d, at 847, n. 24.
Respondents urge the Court to set aside the Policy Statement because of this alleged procedural error if the Court determines that the Commission’s views do not conflict with the Act or the First Amendment. We have considered the submissions of the parties and do not consider the action of the Commission, even if a procedural lapse, to be a sufficient ground for reopening the proceedings before the Commission.
The court observed, as it had in WEFM, that because broadcasters rely on advertising revenue they tend to serve persons with large discretionary incomes. 197 U. S. App. D. C., at 332, 610 F. 2d, at 851. The
The court stated that the Commission’s staff study demonstrated that licensees had continued to develop diverse entertainment formats after the WEFM decision.
The court acknowledged that Congress had entrusted to the Commission the task of ensuring that license grants are used in the public interest. Nevertheless, the Commission’s position on review of entertainment format changes “could not be sustained even when all due deference was given that construction.” 197 U. S. App. D. C., at 336, n. 51, 610 F. 2d, at 855, n. 51.
The Court of Appeals was not satisfied that the market functioned adequately in every case; nor was it persuaded that the loss of a unique format is comparable to the loss of a .favorite station within a particular format.
Two judges dissented, arguing that the Policy Statement should have been upheld, since the Commission had made a reasonable judgment that the format doctrine was unnecessary to further the public interest. A third judge agreed with the dissenters that the majority had not accorded sufficient deference to the Commission’s judgment, but concluded that the Commission’s order should be vacated so that the record could be reopened to permit public comment on the staff study.
The Act provides in general terms that the Commission shall perform administrative functions “as public convenience, interest, or necessity requires.” 47 U. S. C. § 303.
See 47 U. S. C. §303 (r), quoted in n. 12, supra.
Section 10 (e) of the Administrative Procedure Act provides in part:
“The reviewing court shall—
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in 'accordance with law . . . .” 5 U. S. C. § 706 (2) (A).
In FCC v. National Citizens Committee for Broadcasting, we observed that a reviewing court applying this standard “ ‘is not empowered to substitute its judgment for that of the agency.’ ” 436 U. S., at 803, quoting Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 416 (1971).
FCC v. National Citizens Committee for Broadcasting, supra, at 814, quoting FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 29 (1961).
See, e. g., FCC v. Midwest Video Corp., 440 U. S. 689, 705 (1979) (recognizing the “policy of the Act to preserve editorial control of pro
Congress rejected a proposal to allocate 25% of all radio stations to educational, religious, agricultural, and similar nonprofit associations. See 78 Cong. Rec. 8843-8846 (1934).
44 Stat. 1162. The Radio Act of 1927 was the predecessor to the Communications Act.
This bill would have required the administrative agency created by the Radio Act of 1927 to prescribe “priorities as to subject matter to be observed by each class of licensed stations.” H. R. 7357, 68th Cong., 1st Sess., §1 (B) (1924).
Hearings on H. R. 5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 39 (1926).
44 Stat. 1172-1173. See Hearings on S. 1 and S. 1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); H. R. Conf. Rep. No. 1886, 69th Cong., 2d Sess., 16-19 (1927).
Section 326 of the Act provides:
“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere
In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), the Court concluded that although this section prohibits the Commission from editing proposed broadcasts in advance, it does not preclude subsequent review of program content. Id., at 735, 737.
Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 121,
See, e. g., En Banc Programming Inquiry, 44 F. C. C. 2303, 2308-2309 (1960); Bay Radio, Inc., 22 F. C. C. 1351, 1364 (1957).
Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 F. C. C. 2d 650, 679-680 (1971).
The Commission explained:
“Our view has been that the station’s program format is a matter best left to the discretion of the licensee or applicant, since as a matter of public acceptance and economic necessity he will tend to program to meet the
The Commission noted that this policy only applied to entertainment programming. “It does not include matters such as an increase in commercial matter or decrease in the amount of non-entertainment programming, both of which are subjects of review and concern, and have been for some time.” Id., at 679, n. 15.
The Commission continues to review nonentertainment programming to some degree. In its memorandum opinion denying reconsideration of the Policy Statement, the Commission explained that it has limited its review of programming to preserve licensee discretion in this area:
“To the extent that the Commission exercises some direct control of programming, it is primarily through the fairness doctrine and political broadcasting rules pursuant to Section 315. In both cases the Commission’s role is limited to directing the licensee to broadcast some additional material so as not to completely ignore the viewpoints of others in the community. . . . These regulations are extremely narrow, the Commission’s role is limited by strictly defined standards, and the licensee is left with virtually unrestricted discretion in programming most of the broadcast day. In contrast, [under the format doctrine] we would be faced with the prospect of rejecting virtually the entire broadcast schedule proposed by the private licensee . . . 66 F. C. C. 2d, at 83.
Zenith Radio Corp., 40 F. C. C. 2d 223, 231 (1973) (additional views of Chairman Burch).
Policy Statement, 60 F. C. C. 2d, at 866, n. 8.
It is asserted that the Policy Statement violates the Act because it does not contain a “safety valve” procedure. The dissent relies primarily on National Broadcasting Co. v. United States, 319 U. S. 190 (1943), and United States v. Storer Broadcasting Co., 351 U. S. 192 (1956). In National Broadcasting Co. v. United States, the Court noted that license applicants had been advised by the Commission that they could call to its attention any reason why the challenged chain broadcasting rule should be modified or held inapplicable to their situations. 319 U. S., at 207. In United States v. Storer Broadcasting Co., the Court observed that under the Commission’s regulations, an applicant who alleged “adequate reasons why the [Multiple Ownership] Rules should be waived or amended” would be granted a hearing. 351 U. S., at 205. In each case the Court considered the validity of the challenged rules in light of the flexibility provided by the procedures. However, it did not hold that the Commission may never adopt a rule that lacks a waiver provision.
The Commission in the past has sought to promote “balanced” radio programming, but these efforts did not 'involve Commission review of changes in entertainment format. For example, in the En Banc Programming Inquiry, 44 F. C. C. 2303 (1960), relied on by the dissent, the Commission identified 14 types of programming that it considered “major elements usually necessary to meet the public interest.” Id., at 2314. One of these categories was "entertainment programs.” The Commission suggested only that a licensee should usually provide some entertainment programming: it did not require licensees to provide specific types, of entertainment programming. Moreover, the Commission emphasized that a licensee is afforded broad discretion in determining what programs should be offered to the public:
“The ascertainment of the needed elements of the broadcast matter to be provided by a particular licensee for the audience he is obligated to serve remains primarily the function of the licensee. His honest and prudent judgments will be accorded great weight by the Commission. Indeed, any other course would tend to substitute the judgment of the Commission for that of the licensee.” Ibid.
Respondents place particular emphasis on the role of foreign language programming in providing information to non-English-speaking citizens. However, the Policy Statement only applies to entertainment programming. It does not address the broadcaster’s obligation to respond to community needs in the area of informational programming. See Tr. of Oral Arg. 81 (remarks of counsel for the Commission).
Cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973) (the First Amendment does not require the Commission to adopt a “fairness doctrine” with respect to paid editorial advertisements).
Dissenting Opinion
with whom Justice Brennan joins, dissenting.
Under §§ 309 (a) and 310 (d) of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq.
I
At the outset, I should point out that my understanding of the Court of Appeals’ format cases is very different from the Commission’s.
In fact, the Court of Appeals accepted the Commission’s conclusion that entertainment program formats should ordinarily be left to competitive forces. The court emphasized that the format doctrine “was not intended as an alternative to format allocation by market forces,” and “fully recognized that market forces do generally provide diversification of formats.” Ibid. (Emphasis in original.) It explained that “the Commission’s obligation to consider format issues arises only when there is strong prima facie evidence that the market has in fact broken down,” ibid., and suggested that a breakdown in the market may be inferred when notice of a format change “precipitate [s] an outpouring of protest,” id., at 323, 610 F. 2d, at 842, or “significant public grumbling,” ibid. The Court of Appeals further stated that “[n]o public interest issue is raised if (1) there is an adequate substitute in the service area for the format being abandoned, (2) there
The Court of Appeals thus made clear that the format doctrine comes into play only in a few limited situations. Consequently, the issue presented by these cases is not whether the Commission may adopt a general policy of relying on licensee discretion and market forces to ensure diversity in entertainment programming formats. Rather, the question before us is whether the Commission may apply its general policy on format changes indiscriminately and without regard to the effect in particular cases.
II
Although the Act does not define “public interest, convenience, and necessity,” it is difficult to quarrel with the basic premise of the Court of Appeals’ format cases that the term includes “a concern for diverse entertainment programming.” Id., at 323, 610 F. 2d, at 842.
I agree with the majority that predictions of this sort are within the Commission’s institutional competence. I am also willing to assume that a general policy of disregarding format changes in making the “public interest” determination required by the Act is not inconsistent with the Commission’s statutory obligation to give individualized consideration to each application. The Commission has broad rulemaking powers under the Act,
The problem with the particular Policy Statement challenged here, however, is that it lacks the flexibility we have required of such general regulations and policies. See, e. g., United States v. Storer Broadcasting Co., supra; National
Moreover, our cases have indicated that an agency’s discretion to proceed in complex areas through general rules is intimately connected to the existence of a “safety valve” procedure that allows the agency to consider applications for exemptions based on special circumstances. See E. I. du Pont de Nemours & Co. v. Train, 430 U. S. 112, 128 (1977); Permian Basin Area Rate Cases, 390 U. S. 747, 771-772 (1968); FPC v. Texaco Inc., 377 U. S. 33, 40-41 (1964); United States v. Storer Broadcasting Co., supra, at 204-205; National Broadcasting Co. v. United States, supra, at 207, 225. See also WAIT Radio v. FCC, 135 U. S. App. D. C. 317, 321, 418 P. 2d 1153, 1157 (1969); American Airlines v. CAB, 123 U. S. App. D. C. 310, 359 P. 2d 624 (en banc), cert. denied, 385 U. S. 843 (1966); WBEN, Inc. v. United States, 396 F. 2d 601, 618 (CA2), cert. denied, 393 U. S. 914 (1968).
“The Commission therefore did not bind itself inflexibly to the licensing policies expressed in the regulations. In each case that comes before it the Commission must still exercise an ultimate judgment whether the grant of a license would serve the 'public interest, convenience, or necessity.’ If time and changing circumstances reveal that the 'public interest’ is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.” Id., at 225.
Similarly, in upholding the Commission’s Multiple Ownership Rules in United States v. Storer Broadcasting Co., supra, we noted that the regulations allowed an opportunity for a “full hearing” for applicants “that set out adequate reasons why the Rules should be waived or amended.” Id., at 205.
“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 a 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.” WAIT Radio v. FCC, supra, at 321, 418 F. 2d, at 1157.
In my judgment, this requirement of flexibility compels the Commission to provide a procedure through which listeners can attempt to show that a particular radio market differs from the Commission’s paradigm, and thereby persuade the Commission to give particularized consideration to a proposed format change. Indeed, until the Policy Statement was published, the Commission had resolved to “take an extra hard look at the reasonableness of any proposal which would deprive a community of its only source of a particular type of programming.”
This omission is not only a departure from legal precedents; it is also a departure both from the Commission’s consistent policies and its admissions here. For the Commission concedes that the radio market is an imperfect reflection of listener preferences,
“It has long been an established policy of broadcasters themselves and of the Commission that the American*613 system of broadcasting must serve significant minorities among our population, and the less dominant needs and tastes which most listeners have from time to time.”18
This theme was reiterated in the Commission’s 1960 Program Statement,
Moreover, in examining renewal applications, the Commission has considered claims that a licensee does not provide adequate children’s programming,
There is an obvious inconsistency between the Commission’s recognition that the “public interest” standard requires it to consider licensee programming in the situations described above and its Policy Statement on review of entertainment program formats. Indeed, the sole instance in which the Commission will not consider listener complaints about programming is when they pertain to proposed changes in entertainment program formats. The Policy Statement attempts to explain this exceptional treatment of format changes by drawing a distinction between entertainment and nonentertainment programming. The Policy Statement suggests that the Commission reviews only nonentertainment programming, and even then, only in special circumstances. Thus, the Policy Statement argues that the fairness doctrine and political broadcasting rules issued pursuant to § 315, 47 U. S. C. § 315, allow the Commission to exercise direct con
In the first place, the distinction the Commission tries to draw between entertainment and nonentertainment programming is questionable. It is not immediately apparent, for example, why children’s programming necessarily falls on the “nonentertainment” side of the spectrum, and the Commission has provided no explanation of how it decides the category to which particular programming belongs. Second, I see no reason why the Commission’s review of entertainment programming cannot be as limited as its review of nonenter-tainment programming. Nothing prevents the Commission from limiting its role in reviewing format changes to “directing the licensee to broadcast additional material,” thereby ensuring that the viewpoints of listeners who complain about a proposed format change are not completely ignored. Third, and most important, neither the fairness doctrine nor the political broadcasting rules have anything to do with the various situations described above in which the Commission has not hesitated to consider program formats in making the “public interest” determination. The fairness doctrine imposes an obligation on licensees to devote a “reasonable per
The majority attempts to minimize the inconsistency in the Commission’s treatment of entertainment and nonenter-tainment programming by postulating that the difference “is not as pronounced as it may seem,” ante, at 602. This observation, even if accurate, is simply beside the point. What is germane is the Commission’s failure to consider listener complaints about entertainment programming to the same extent and in the same manner as it reviews complaints about nonentertainment programming. Thus, whereas the Commission will hold an evidentiary hearing to review complaints about nonentertainment programming where “ ‘it appears that the licensee has . . . act Ted! unreasonablv or in bad faith,’ ” ibid, (quoting Mississippi Authority for Educational TV, 71 F. C. C. 2d 1296, 1308 (1979)), the Commission will not consider an identical complaint about a licensee’s change in its entertainment programming. As I have indicated, see supra, at 614-616, neither the Commission nor the majority is able to offer a satisfactory explanation for this inconsistency.
Ill
Since I agree with the Court of Appeals that there may be situations in which the Commission is obliged to consider format changes in making the “public interest” determination mandated by the Act, it seems appropriate to comment briefly on the Commission’s claim that the “ 'acute practical problem [s]’ inherent in format regulation render entirely speculative any benefits that such regulation might produce.”
Although it has abandoned the “administrative nightmare” argument before this Court, the Commission nonetheless finds other “intractable” administrative problems in format regulation. For example, it insists that meaningful classification of radio broadcasts into format types is impractical, and that it is impossible to determine whether a proposed format change is in the public interest because the intensity of listener preferences cannot be measured.
None of these claims has merit. Broadcasters have operated under the format doctrine during the past 10 years, yet the Commission is unable to show that there has been no innovation and experimentation with formats during this period. Indeed, a Commission staff study on the effectiveness of market allocation of formats indicates that licensees have been aggressive in developing diverse entertainment formats under the format-doctrine regime.
The Commission’s claim that it is impossible to classify formats, is largely overcome by the Court of Appeals’ suggestion that the Commission could develop “a format taxonomy which, even if imprecise at the margins, would be sustainable so long as not irrational.”
IV
The Commission’s Policy Statement is defective because it lacks a “safety valve” procedure that would allow the necessary flexibility in the application of the Commission’s general policy on format changes to particular cases. In my judgment, the Court of Appeals’ format doctrine was a permissible attempt by that court to provide the Commission with some guidance regarding the types of situations in which a re-examination of general policy might be necessary. Even if one were to conclude that the Court of Appeals described these situations too specifically, a view I do not share, I still think that the Court of Appeals correctly held that the Commission’s Policy Statement must be vacated.
I respectfully dissent.
The pertinent portions of 47 U. S. C. §§ 309 (a) and 310 (d) are quoted in the majority opinion, ante, at 584-585, n. 2.
I will follow the majority, see ante, at 586, n. 4, in referring to a broadcaster’s change in entertainment programming as a format change.
Memorandum Opinion and Order, 60 F. C. C. 2d 858 (1976) (Policy Statement), reconsideration denied, 66 F. C. C. 2d 78 (1977) (Denial of Reconsideration).
The opinion of the Court traces the development of the Court of Appeals’ “format doctrine” and the Commission’s “Policy Statement,” see ante, at 586-593. I will not repeat that discussion here.
Notice of Inquiry, Development of Policy Re: Changes in the Entertainment Formats of Broadcast Stations, 57 F. C. C. 2d 580, 582 (1976) (Notice of Inquiry).
Policy Statement, supra, at 865 (quoting Lemon v. Kurtzman, 403 U. S. 602, 619-620 (1971)).
Denial of Reconsideration, supra, at 81.
Even the Court ot Appeals agreed that “[t]here would no doubt be severe statutory and constitutional difficulties with any system that required intrusive governmental surveillance, dictated programming choices, forced broad access obligations, or imposed an obligation to continue in service under any and all circumstances.” 197 U. S. App. D. C. 319, 331-332, 610 F. 2d 838, 850-851 (1979).
See D. Ginsburg, Regulation of Radio Broadcasting 294 (1979) (“An argument against the desirability of ‘diversity’ in broadcast programming is difficult to imagine”). See generally Note, A Regulatory Approach to Diversifying Commercial Television Entertainment, 89 Yale L. J. 694 (1980).
Section 303 (g) of the Act, 47 U. S. C. § 303 (g), directs the Commission to “encourage the larger and more effective use of radio in the public interest.”
The Commission is authorized to promulgate “such rules and regulations . . . not inconsistent with law, as may be necessary to carry out the provisions of [the Act].” 47 U. S. C. §303 (r).
The majority argues, ante, at 601, n. 44, that although the Court considered the presence of a “safety valve” procedure in upholding the rules challenged in National Broadcasting Co. v. United States and United States v. Storer Broadcasting Co., the Court “did not hold that the Commission may never adopt a rule that lacks a waiver provision.” Since this general question was not before the Court in those cases, it is hardly surprising that it did not render an advisory opinion to this effect. What is instructive, however, is the majority’s inability to explain why a waiver provision was necessary in those cases, but is not required in the instant situation. As the cases cited in text make clear, this Court and the lower federal courts have insisted on a “safety valve” feature in upholding general rules promulgated by a variety of agencies. I believe it is incumbent on those who would depart from this practice to explain their reasoning.
Zenith Radio Corp., 40 F. C. C. 2d 223, 231 (1973) (additional views of Chairman Burch) (joined by a majority of the Commissioners).
Confronted as it was by the Commission’s resistance to its format doctrine, it is easy to understand why the Court of Appeals felt compelled to undertake this task.
Policy Statement, 60 F. C. C. 2d, at 863.
Public Service Responsibility of Broadcast Licensees (1946).
Id., at 12.
Id., at 15.
Em Banc Programming Inquiry, 44 F. C. C. 2303 (1960).
Id., at 2314
Id., at 2312.
Children’s Television Report and Policy Statement, 50 F. C. C. 2d 1, 6 (1974).
Channel 20, Inc., 70 F. C. C. 2d 1770 (1979).
Community Television of Southern California, 72 F. C. C. 2d 349 (1979).
Central California Communications Corp., 70 F. C. C. 2d 1947 (1979).
Mississippi Authority for Educational TV, 71 F. C. C. 2d 1296 (1979); Alabama Educational Television Comm’n, 33 F. C. C. 2d 495 (1971), renewal denied, 50 F. C. C. 2d 461 (1975).
Educational Broadcasting Corp., 70 F. C. C. 2d 2204 (1979).
As the majority notes, ante, at 602-603, the Commission recently voted to reduce its role in regulating several aspects of commercial radio broadcasting, including regulation of nonentertainment programming. Thus, the Commission has announced its intention of eliminating its current guideline on the amounts of nonentertainment programming that radio stations should air. And the Commission has indicated that petitions to deny license renewals based on only the quantity of a licensee’s non-entertainment programming will no longer be sufficient to support a challenge. For example, a petitioner would have to show that a licensee is doing little or no programming responsive to community issues in order to successfully challenge renewal of the license. Nonetheless, the Commission reiterated that nonentertainment programming is still a relevant issue for petitions to deny, that licensees have an obligation to offer non-entertainment programming addressing issues facing the community, and that the Commission will continue to inquire into the reasonableness of licensee programming decisions. See Deregulation of Radio, 46 Fed. Reg. 13888, 13890-13897 (1981) (to be codified at 47 CFR Parts 0 and 73).
Denial of Reconsideration, 66 F. C. C. 2d, at 83 (emphasis in original).
Ibid.
Ibid.
Brief for Federal Communications Commission and United States 35.
Policy Statement, 60 P. C. C. 2d, at 865.
Id., at 864.
The Commission also insists that any findings about the financial viability of a particular format would be entirely speculative.
See Policy Statement, supra, at 873-881.
There have been a number of comments and suggestions about how the Commission might best accomplish this task. See, e. g., 57 F. C. C. 2d, at 587-589 (concurring statement of Commissioner Hooks); D. Ginsburg, supra n. 9, at 316; Note, Judicial Review of FCC Program Diversity Regulation, 75 Colum. L. Rev. 401, 436-437 (1975).
The Court of Appeals suggested that the Commission could consider an alternative approach of “dispensing altogether with the need for classifying formats by simply taking the existence of significant and bona fide listener protest as sufficient evidence that the station’s endangered programming has certain unique features for which there are no ready substitutes.” 197 U. S. App. D. C., at 334, n. 47, 610 F. 2d, at 853, n. 47. The court indicated that “this approach would focus attention on the essentials of the format doctrine, namely, that when a significant sector of the populace is aggrieved by a planned programming change, this fact raises a legitimate question as to whether the proposed change is in the public interest.” Id., at 334-335, n. 47, 610 F. 2d, at 853-854, n. 47.
See Policy Statement, supra, at 875-880.
Nor do I find merit in the Commission’s claim that there are serious First Amendment problems with format regulation. In the first place, I see no reason to find constitutional defect in limited review of entertainment formats when no such defect arises with review of nonentertainment
All this suggests that the “practical difficulties” the Commission has identified are not intractable, and that these problems could be solved if the Commission channelled as much energy into devising workable standards as it has devoted to mischaracterizing the Court of Appeals’ format doctrine.
Reference
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