Federal Communications Commission v.
National Citizens Committee for Broadcasting
No. seventy six-1471
Argued January sixteen, 1978
Decided June 12, 1978*
436 U.S. 775
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
After a prolonged rulemaking proceeding, the Federal Communications Commission (FCC) adopted guidelines prospectively barring the initial licensing or the switch of newspaper-broadcast combos where there is not unusual possession of a radio or tv broadcast station and a day by day newspaper positioned inside the same community ("co-positioned" combinations). Divestiture of current co-placed mixtures changed into not required besides in 16 "egregious instances," in which the mixture entails the only day by day newspaper published in a network and both the only broadcast station or the only tv station providing that whole network with a clear signal. Absent waiver, divestiture must be executed in the ones sixteen instances via January 1, 1980. On petitions for evaluate of the rules, the Court of Appeals affirmed the FCC s potential ban, however ordered adoption of regulations requiring dissolution of all present combos that did no longer qualify for waivers. The courtroom held that the constrained divestiture requirement was arbitrary and capricious within the that means of § 10(e) of the Administrative Procedure Act.
Held: The challenged guidelines are legitimate in their entirety. Pp. 436 U. S. 793-815.
Argued January 16>*
After a prolonged rulemaking intending, the Federal Communications Commission (FCC) adopted guidelines prospectively barring the initial licensing or the transfer of newspaper-broadcast mixtures in which there is commonplace ownership of a radio or television broadcast station and a each day newspaper located inside the same community ("co-located" mixtures). Divestiture of present co-positioned mixtures turned into not required besides in 16 "egregious cases," wherein the combination includes the only daily newspaper published in a network and either the sole broadcast station or the sole tv station offering that complete network with a clean sign. Absent waiver, divestiture need to be achieved in the ones sixteen instances by way of January 1, 1980. On petitions for assessment of the policies, the Court of Appeals affirmed the FCC s prospective ban, however ordered adoption of rules requiring dissolution of all existing combinations that did now not qualify for waivers. The court held that the confined divestiture requirement became arbitrary and capricious inside the which means of § 10(e) of the Administrative Procedure Act.
Held: The challenged policies are legitimate in their entirety. Pp. 436 U. S. 793-815.
(a) The policies, that are designed to sell diversification of the mass media as an entire, are primarily based on public hobby goals that the FCC is allowed to pursue. As lengthy because the policies are not an unreasonable way for looking for to gain the ones dreams, they fall inside the FCC s widespread rulemaking authority identified in United States v. Storer
Page 436 U. S. 776
Broadcasting Co., 351 U. S. 192, and National Broadcasting Co. v. United States, 319 U. S. one hundred ninety. Pp. 436 U. S. 793-796.
(b) Although it is contended that the rulemaking record did not conclusively set up that the potential ban would fulfill the stated purpose,
"[d]iversity and its outcomes are . . . elusive standards, not without problems described not to mention measured with out making great judgments objectionable on each coverage and First Amendment grounds,"
and proof of precise abuses by means of commonplace proprietors is hard to compile. In light of those concerns, the FCC virtually did now not take an irrational view of the public interest while it decided to impose the prospective ban, and changed into entitled to rely on its judgment, based on revel in, that "it's far unrealistic to assume actual diversity from a normally owned station-newspaper mixture." In view of modified situations inside the broadcasting industry, furthermore, the FCC was warranted in departing from its in advance licensing choices that allowed co-placed combos. Pp. 436 U. S. 796-797.
(c) The rivalry that the First Amendment rights of newspaper proprietors are violated by means of the regulations ignores the essential proposition that there is no "unabridgeable First Amendment right to broadcast akin to the proper of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 388. In view of the constrained broadcast spectrum, allocation and regulation of frequencies are critical. Nothing inside the First Amendment prevents such allocation as will sell the "public hobby" in diversification of the mass communications media. A newspaper owner need not forfeit his proper to publish with a view to collect a station in any other network; neither is he "singled out" for more stringent remedy than different proprietors of mass media under already present a couple of possession rules. Far from in search of to restrict the flow of records, the FCC has acted "to decorate the range of records heard through the public with out on-going authorities surveillance of the content of speech." The policies are an inexpensive manner of promoting the general public interest in assorted mass communications, and thus they do not violate the First Amendment rights of folks that will be denied broadcasting licenses pursuant to them. Pp. 436 U. S. 798-802.
(d) The limited divestiture requirement displays a rational weighing of competing policies. The FCC rationally concluded that forced dissolution of all present co-located combos, even though fostering diversity, could disrupt the industry and reason person problem, and would or may damage the public interest in several respects, mainly identified by using the FCC. In the beyond, the FCC has consistently acted on the theory that maintaining continuity of meritorious service furthers the
Page 436 U. S. 777
public hobby. And, inside the on the spot proceeding, the FCC particularly cited that the prevailing newspaper-broadcast combinations had a "lengthy document of carrier" within the public hobby, and concluded that their substitute by means of new proprietors might no longer assure the equal, degree of carrier, could reason critical disruption for the duration of the transition period, and would in all likelihood bring about a decline of local possession. Pp. 436 U. S. 803-809.
(e) The feature of weighing regulations below the public hobby wellknown has been delegated through Congress to the FCC within the first instance, and there is no bass for a "presumption" that current newspaper-broadcast mixtures "do now not serve the general public hobby." Such a presumption could no longer comport with the FCC s longstanding and judicially authorized practice of giving controlling weight in a few instances to its intention of reaching "the excellent manageable carrier to the general public." There is no statutory or different duty that diversification ought to be given controlling weight in all occasions. The FCC has made clear that diversification of ownership is a less significant thing while the renewal of an existing license, as compared with an initial licensing application, is being considered, and the policy of comparing present licensees on a somewhat distinct foundation from new candidates appears to were approved by way of Congress. Since the choice to "grandfather" maximum current combos was based totally on judgments and predictions through the FCC, entire actual aid within the document became not required; "a forecast of the direction in which destiny public interest lies always involves deductions based on the professional knowledge of the organization," FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 365 U. S. nine. Nor changed into it arbitrary for the FCC to order divestiture in simplest the 16 "egregious cases," since the FCC made a rational judgment in concluding that the want for diversification changed into particularly extremely good in instances of neighborhood monopoly. Pp. 436 U. S. 809-815.
181 U.S.App.D.C. 1, 555 F.2d 938, affirmed in part and reversed in component.
MARSHALL, J., delivered the opinion of the Court, in which all other has memberships joined besides BRENNAN, J., who took no element within the attention or decision of the cases.
Page 436 U. S. 779
MR. JUSTICE MARSHALL introduced the opinion of the Court.
At difficulty in those instances are Federal Communications Commission policies governing the permissibility of commonplace ownership of a radio or television broadcast station and a daily newspaper placed in the equal community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F.C.C.2nd 1046 (1975) (hereinafter stated as Order), as amended upon reconsideration, 53 F.C.C.second 589 (1975), codified in forty seven CFR §§ seventy three.35, seventy three.240, 73.636 (1976). The rules, adopted after a prolonged rulemaking intending, prospectively bar formation or transfer of co-placed newspaper-broadcast combos. Existing combinations are commonly permitted to continue in operation. However, in communities in which there's common ownership of the best each day newspaper and the most effective broadcast station, or (in which there may be multiple broadcast station) of the simplest daily newspaper and the only tv station, divestiture of both the newspaper or the published station is needed within five years, until grounds for waiver are confirmed.
The questions for decision are whether these rules both exceed the Commission s authority beneath the Communications Act of 1934, 48 Stat. 1064, as amended, forty seven U.S.C. §151 et seq. (1970 ed. and Supp. V), or violate the First or Fifth Amendment rights of newspaper proprietors; and whether or not the lines drawn by way of the Commission among new and present newspaper-broadcast mixtures, and among existing combos problem to divestiture and people allowed to continue in operation, are arbitrary or capricious inside the meaning of §10(e) of the Administrative Procedure Act, five U.S.C. § 706(2)(A) (1976 ed.). For the motives set forth below, we preserve the regulations in their entirety.
Page 436 U. S. 780
Under the regulatory scheme hooked up via the Radio Act of 1927, 44 Stat. 1162, and persisted within the Communications Act of 1934, no television or radio broadcast station may perform without a license granted through the Federal Communications Commission. 47 U.S.C. § 301. Licensees who want to preserve broadcasting need to follow for renewal in their licenses every 3 years, and the Commission can also provide an preliminary license or a renewal handiest if it unearths that the public hobby, convenience, and necessity may be served thereby. §§ 307(a), (d), 308(a), 309(a), (d).
In putting its licensing rules, the Commission has long acted at the theory that diversification of mass media ownership serves the public interest by selling range of program and carrier viewpoints, as well as by way of preventing undue attention of economic electricity. See, e.g., Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 F.C.C. 1476, 1476-1477 (1964). This perception of the public interest has been applied over the years by means of a series of guidelines imposing increasingly more stringent regulations on a couple of ownership of broadcast stations. In the early 1940 s, the Commission promulgated policies prohibiting possession or manipulate of multiple station in the identical broadcast service (AM radio, FM radio, or television) inside the same network. [Footnote 1]
Page 436 U. S. 781
In 1953, barriers have been located on the full quantity of stations in every carrier someone or entity may personal or manage. [Footnote 2] And in 1970, the Commission adopted guidelines prohibiting, on a prospective foundation, not unusual possession of a VHF television station and any radio station serving the same marketplace. [Footnote 3]
More typically, "[d]iversification of control of the media of mass communications" has been considered by using the Commission as "a aspect of number one importance" in figuring out who, amongst competing applicants in a comparative intending, ought to obtain the initial license for a particular broadcast facility. Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2nd 393, 394-395 (1965) (italics overlooked). Thus, prior to adoption of the guidelines at problem right here, the fact that an applicant for an initial license posted a brand new paper within the network to be served by means of the printed station turned into taken into account on a case-by using-case basis, and resulted in a few times in awards of licenses to competing applicants. [Footnote 4]
Page 436 U. S. 782
Diversification of possession has no longer been the sole attention concept applicable to the general public interest, however. The Commission s other, and once in a while conflicting, intention has been to ensure "the exceptional plausible carrier to the general public." Id. at 394. To acquire this purpose, the Commission has weighed elements inclusive of the anticipated contribution of the proprietor to station operations, the proposed program provider, and the past broadcast report of the applicant -- similarly to diversification of ownership -- in making preliminary comparative licensing selections. See id. at 395-four hundred. Moreover, the Commission has given large weight to a policy of heading off undue disruption of present service. [Footnote 5] As a result, newspaper owners
Page 436 U. S. 783
normally had been able to gather broadcast licenses for stations serving the equal communities as their newspapers, and the Commission has repeatedly renewed such licenses on findings that continuation of the provider offered by means of the commonplace owner would serve the public hobby. See Order, at 1066-1067 1074-1075.
Against this historical past, the Commission started the immediate rulemaking intending in 1970 to remember the nee for a more restrictive policy in the direction of newspaper ownership of radio and tv broadcast stations. Further Notice of Proposed Rulemaking (Docket No. 18110), 22 F.C.C.2d 339 (1970). [Footnote 6] Citing research displaying the dominant role of tv stations and every day newspapers as resources of local news and other information, identity. at 346; see identity. at 344-346 [Footnote 7] the awareness of
Page 436 U. S. 784
rulemaking proposed adoption of guidelines that could remove all newspaper-broadcast combos serving the equal marketplace, by prospectively banning formation or transfer of such mixtures and requiring dissolution of all present combinations inside five years, identification. at 346. The Commission suggested that the proposed policies might serve "the reason of selling opposition most of the mass media involved, and maximizing diversification of carrier sources and viewpoints." Ibid. At the equal time, however, the Commission expressed "significant problem" about the disruption of service that would end result from divestiture of present combinations. Id. at 348. Comments had been invited on all elements of the proposed guidelines.
The observe of rulemaking generated a enormous response. Nearly 2 hundred events, which includes the Antitrust Division of the Justice Department, various broadcast and newspaper pastimes, public hobby businesses, and academic and research entities, filed remarks at the proposed regulations. In addition, a number of studies have been submitted, coping with the effects of newspaper-broadcast cross-possession on opposition and station overall performance, the financial consequences of divestiture, and the degree of diversity present inside the mass media. In March, 1974, the Commission requested in addition comments directed usually to the core trouble of newspaper-tv station move-ownership, Memorandum Opinion and Order (Docket No. 18110), 47 F.C.C.second 97 (1974), and near 50 units of additional comments had been filed. In July, 1974, the Commission held three days of oral argument, at which all events who asked time have been allowed to talk.
The guidelines at problem right here were promulgated and defined in a lengthy report and order launched by using the Commission on January 31, 1975. The Commission concluded, first, that it had statutory authority to issue the regulations below the Communications Act, Order, at 1048, bringing up 47 U.S.C. §§ 2(a), 4(i), four(j), 301, 303, 309(a), and that the
Page 436 U. S. 785
policies have been valid under the First and Fifth Amendments to the Constitution, Order, at 1050-1051. It found that
"[t]he time period public hobby encompasses many elements, such as the widest viable dissemination of statistics from numerous and adversarial assets. "
Order, at 1048, quoting Associated Press v. United States, 326 U. S. 1, 326 U. S. 20 (1945), and that "ownership contains with it the energy to select, to edit, and to pick out the methods, manner and emphasis of presentation," Order at 1050. The Order similarly explained that the potential ban on creation of co-positioned newspaper-broadcast combinations changed into grounded frequently in First Amendment issues, whilst the divestiture policies were primarily based on both First Amendment and antitrust policies. Id. at 1049. In addition, the Commission rejected the proposal that it lacked the electricity to order divestiture, reasoning that the statutory requirement of license renewal each three years always implied authority to reserve divestiture over a 5-12 months length. Id. at 1052.
After reviewing the feedback and research submitted through the numerous events at some stage in the course of the intending, the Commission then grew to become to an evidence of the rules and the excuses for his or her adoption. The potential regulations, barring formation of new broadcast-newspaper mixtures in the same market as well as transfers of present mixtures to new owners, have been followed without alternate from the concept set forth within the be aware of rulemaking. [Footnote 8] While recognizing
Page 436 U. S. 786
the pioneering contributions of newspaper proprietors to the printed enterprise, the Commission concluded that modified occasions made it viable, and important, for all new licensing of broadcast stations to "be predicted to feature to neighborhood diversity." Id. at 1075. [Footnote nine] In achieving this end, the Commission did now not locate that existing co-positioned newspaper-broadcast combos had not served the public hobby, or that such combos always "spea[k] with one voice" or are dangerous to opposition. Id. at 1085, 1089. In the Commission s view, the conflicting research submitted by means of the events concerning the outcomes of newspaper possession on opposition and station overall performance had been inconclusive, and no pattern of unique abuses by present go-owners was proven. See identification. at 1072-1073, 1085, 1089. The prospective regulations had been justified, rather, with the aid of connection with the Commission s coverage of promoting diversification of ownership: will increase in diversification of ownership might in all likelihood bring about more desirable diversity of viewpoints, and, given the absence of persuasive countervailing concerns, "even a small benefit in range" become "worth pursuing." Id. at 1076, 1080 n. 30. With appreciate to the proposed throughout-the-board divestiture requirement, however, the Commission concluded that "a mere was hoping-for advantage in diversity" became now not a enough justification. Id. at 1078. Characterizing the divestiture troubles as "the most hard" provided within the intending, the Order defined that the proposed guidelines, while efficiently recognizing the primary significance of range concerns, "may additionally have
Page 436 U. S. 787
given too little weight to the outcomes which can be expected to wait a focus at the abstract goal on my own." Ibid. Forced dissolution could promote range, however it would also reason "disruption for the enterprise and difficulty for man or woman owners," "resulting in losses or diminution of carrier to the public." Id. at 1078, 1080.
The Commission concluded that, in light of these countervailing concerns, divestiture became warranted handiest in "the maximum egregious instances," which it recognized as the ones in which a newspaper-broadcast combination has an "powerful monopoly" inside the neighborhood "market of thoughts, as well as economically." Id. at 1080-1081. The Commission diagnosed that any requirements for defining which combos fell inside that category would necessarily be arbitrary to a few degree, but "[a] choice needed to be made." Id. at 1080. It therefore determined to require divestiture simplest wherein there was common possession of the only day by day newspaper published in a network and both (1) the only broadcast station presenting that complete network with a clear sign, or (2) the only television station encompassing the whole network with a clear signal. Id. at 1080-1084. [Footnote 10]
Page 436 U. S. 788
The Order diagnosed 8 tv-newspaper and 10 radio-newspaper combos assembly the divestiture criteria. Id. at 1085, 1098. Waivers of the divestiture requirement have been granted sua sponte to at least one television and 1 radio aggregate, leaving a complete of sixteen stations subject to divestiture. The Commission explained that waiver requests could be entertained in the latter instances, [Footnote 11] however, absent waiver, both the newspaper or the broadcast station would need to be divested by January 1, 1980. Id. at 1084-1086. [Footnote 12]
Page 436 U. S. 789
On petitions for reconsideration, the Commission reaffirmed the regulations in all fabric admire. Memorandum Opinion and Order (Docket No. 18110), 53 F.C.C.2d 589 (1975).
Various parties -- together with the National Citizens Committee for Broadcasting (NCCB), the National Association of Broadcasters (NAB), the American Newspaper Publishers Association (ANPA), and numerous broadcast licensees challenge to the divestiture requirement -- petitioned for evaluation of the rules in the United States Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1), 2343 (1970 ed. and Supp. V). Numerous different events intervened, an the US -- represented by means of the Justice Department -- was made a respondent pursuant to twenty-eight U.S.C. §§ 2344, 2348. NAB, ANPA, and the broadcast licensees issue to divestiture argued that the policies went too some distance in proscribing pass-possession of newspapers and broadcast stations; NCCB and the Justice Department contended that the regulations did no longer move a ways sufficient and that the Commission inadequately justified its selection now not to reserve divestiture on a greater tremendous foundation.
Agreeing extensively with NCCB and the Justice Department, the Court of Appeals affirmed the possible ban on new licensing of co-placed newspaper-broadcast combinations, however vacated the restricted divestiture regulations, and ordered the Commission to adopt rules requiring dissolution of all present combos that did no longer qualify for a waiver under the system mentioned within the Order. 181 U.S.App. D C. 1, 555 F.2nd 938 (1977); see n eleven, supra. The courtroom held, first, that the prospective ban was an affordable approach of furthering
Page 436 U. S. 790
"the especially valued purpose of range" inside the mass media, 181 U.S.App.D.C. at 17, 555 F.2nd at 954, and changed into consequently no longer with out a rational basis. The courtroom concluded further that, for the reason that Commission "explained why it considers range to be a element of high-quality significance," and because the Commission s purpose of promoting diversification of mass media possession changed into strongly supported by First Amendment and antitrust policies, it turned into now not arbitrary for the potential regulations to be "primarily based on [the diversity] factor to the exclusion of others typically trusted by means of the Commission." Id. at thirteen n. 33, 555 F.2d at 950 n. 33; see identification. at eleven-12, 555 F.second at 948-949.
The court additionally held that the possible regulations did no longer exceed the Commission s authority beneath the Communications Act. The courtroom reasoned that the general public interest preferred of the Act permitted, and certainly required, the Commission to don't forget diversification of mass media possession in making its licensing decisions, and that the Commission s trendy rulemaking authority beneath 47 U.S.C. §§ 303(r) and 154(i) allowed the Commission to undertake affordable license qualifications imposing the public interest trendy. 181 U.S.App.D.C. at 14-15, 555 F.2nd at 951-952. The court concluded, moreover, that, because the prospective ban become designed to "increas[e] the wide variety of media voices inside the community," and now not to limit or manage the content of free speech, the ban would now not violate the First Amendment rights of newspaper owners. Id. at sixteen-17, 555 F.2nd at 953-954.
After declaring the potential guidelines, the Court of Appeals invalidated the constrained divestiture requirement as arbitrary and capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), five U.S.C. § 706(2)(A) (1976 ed.). The courtroom s number one keeping become that the Commission lacked a rational basis for "grandfathering" most current combinations while banning all new mixtures. The court docket reasoned that the Commission s personal diversification coverage, as
Page 436 U. S. 791
strengthened through First Amendment rules and the Commission s statutory responsibility to "encourage the bigger and more powerful use of radio within the public hobby," forty seven U.S.C. § 303(g), required the Commission to undertake a "presumption" that stations owned by using co-located newspapers "do no longer serve the general public hobby," 181 U.S.App.D.C. at 25-26, 555 F.2d at 962-963. The courtroom determined that, within the absence of countervailing policies, this "presumption" could have dictated adoption of an throughout-the-board divestiture requirement, subject most effective to waiver "in the ones instances in which the evidence in reality discloses that go-possession is inside the public hobby." Id. at 29, 555 F.2nd at 966. The countervailing regulations depended on through the Commission in its choice had been, in the court s view, "lesser policies" which had now not been given as much weight inside the past as its diversification policy. Id. at 28, 555 F.second at 965. And "the report [did] now not reveal the quantity to which divestiture might honestly threaten those [other policies]." Ibid. T he courtroom concluded, consequently, that it turned into irrational for the Commission no longer to provide controlling weight to its diversification policy, and accordingly to increase the divestiture requirement to all existing mixtures. [Footnote thirteen]
The Court of Appeals held in addition that, even assuming a difference in remedy among new and current combinations
Page 436 U. S. 792
became justifiable, the Commission lacked a rational basis for requiring divestiture within the 16 "egregious" cases even as permitting the remainder of the existing mixtures to hold in operation. The court counseled that "restricting divestiture to small markets of absolute monopoly squanders the possibility where divestiture would possibly do the most properly," given that "[d]ivestiture . . . can be extra useful in the larger markets." Id. at 29, 555 F.2nd at 966. The court docket in addition observed that the record "[did] now not help the belief that divestiture would be more harmful in the grandfathered markets than within the sixteen affected markets," nor did it exhibit that the want for divestiture changed into stronger in the ones 16 markets. Ibid. On the latter factor, the court cited that,
"[a]lthough the affected markets contain fewer voices, the amount of diversity in communities with additional impartial voices might also in fact be no more."
The Commission, NAB, ANPA, and numerous pass-owners who were intervenors beneath, and whose licenses were grandfathered under the Commission s policies but were subject to divestiture underneath the Court of Appeals selection, petitioned this Court for assessment. [Footnote 14] We granted certiorari, 434 U.S. 815 (1977), and we now confirm the judgment of the Court of Appeals insofar because it upholds the potential ban and opposite the judgment insofar as it vacates the restricted divestiture requirement. [Footnote 15]
Page 436 U. S. 793
Petitioners NAB and ANPA contend that the regulation promulgated through the Commission exceed its statutory rulemaking authority and violate the constitutional rights of newspaper owners. We flip first to the statutory, after which to the constitutional, problems.
Section 303(r) of the Communications Act, forty seven U.S.C. § 303(r), offers that
"the Commission sometimes, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and policies and prescribe such regulations and situations, no longer inconsistent with regulation, as can be necessary to perform the provisions of [the Act]."
See also 47 U.S.C. § 154(i). As the Court of Appeals diagnosed, 181 U.S.App.D.C. at 14, 555 F.second at 951, it's far now properly established that this standard rulemaking authority elements a statutory basis for the Commission to difficulty regulations codifying it view of the public hobby licensing preferred, so long as that view is primarily based on consideration of permissible factors and is in any other case reasonable. If a license applicant does now not qualify below standards set forth in such policies, and does no longer proffer enough grounds for waiver or exchange of these requirements, the Commission may additionally deny the software without in addition inquiry. See United States v. Storer Broadcasting Co.,
Page 436 U. S. 794
351 U. S. 192 (1956); National Broadcasting Co. v. United States, 319 U. S. one hundred ninety (1943).
This Court has specifically upheld this rulemaking authority inside the context of policies primarily based at the Commission s coverage of selling diversification of ownership. In United States v. Storer Broadcasting Co., supra, we sustained the portion of the Commission s more than one ownership regulations putting barriers on the full range of stations in each broadcast provider a person may also own or manipulate. See n 2, supra. And in National Broadcasting Co. v. United States, supra, we affirmed policies that, inter alia, prohibited broadcast networks from proudly owning more than one AM radio station in the equal network, and from proudly owning
" any general broadcast station in any locality in which the present preferred broadcast stations are so few or of such unequal desirability . . . that competition might be drastically confined by way of such licensing. "
See 319 U.S. at 319 U. S. 206-208; n 1, supra.
Petitioner NAB attempts to differentiate these instances on the floor that they worried efforts to growth diversification inside the obstacles of the broadcasting enterprise itself, whereas the immediate rules are involved with diversification of ownership inside the mass communications media as an entire. NAB contends that, since the Act confers jurisdiction on the Commission handiest to modify "conversation with the aid of wire or radio," forty seven U.S.C. § 152(a), it is impermissible for the Commission to apply its licensing authority with admire to broadcasting to promote diversity in an basic communications market which incorporates, however is not constrained to, the broadcasting enterprise.
This argument undersells the Commission s energy to alter broadcasting within the "public hobby." In making initial licensing choices among competing applicants, the Commission has long given "primary importance" to "diversification of manage of the media of mass communications," and has denied licenses to newspaper owners on the premise of this coverage
Page 436 U. S. 795
in appropriate instances. See supra at 436 U. S. 781, and n. four. As we've got mentioned on several activities, see, e.g., National Broadcasting Co. v. United States, supra at 319 U. S. 210-218; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 375-377, 395 U. S. 387-388 (1969), the physical scarcity of broadcast frequencies, as well as troubles of interference among broadcast signals, led Congress to delegate vast authority to the Commission to allocate broadcast licenses within the "public interest." And "[t]he avowed intention of the Communications Act of 1934 become to secure the maximum advantages of radio to all the humans of the United States." National Broadcasting Co. v. United States, supra at 319 U. S. 217. It changed into no longer inconsistent with the statutory scheme, therefore, for the Commission to finish that the maximum benefit to the "public hobby" could follow from allocation of broadcast licenses to be able to sell diversification of the mass media as an entire.
Our past decisions have diagnosed, moreover, that the First Amendment and antitrust values underlying the Commission s diversification coverage may properly be considered by using the Commission in determining in which the public hobby lies. "[T]he public interest general always invitations reference to First Amendment ideas," Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 122 (1973), and, in particular, to the First Amendment intention of reaching "the widest feasible dissemination of records from diverse and antagonistic sources," Associated Press v. United States, 326 U.S. at 326 U. S. 20. See Red Lion Broadcasting Co. v. FCC, supra at 395 U. S. 385, 395 U. S. 390. See also United States v. Midwest Video Corp., 406 U. S. 649, 406 U. S. 667-669, and n. 27 (1972) (plurality opinion). And, while the Commission does now not have strength to put into effect the antitrust laws as such, it's far authorized to take antitrust guidelines under consideration in making licensing decisions pursuant to the general public interest wellknown. See, e.g., United States v. Radio Corp. of America, 358 U. S. 334,
Page 436 U. S. 796
351 (1959); National Broadcasting Co. v. United States, supra at 319 U. S. 222-224. Indeed we have stated, albeit in dictum:
"[I]n a given case, the Commission might discover that antitrust concerns alone would maintain the statutory preferred from being met, as whilst the writer of the only newspaper in an area applies for a license for the best available radio and tv centers, which, if granted, could deliver him a monopoly of that vicinity s predominant media of mass conversation."
United States v. Radio Corp. of America, supra at 358 U. S. 351-352.
It is accordingly clean that the rules at issue are primarily based on permissible public interest goals and, so long as the policies are not an unreasonable way for looking for to achieve those goals, they fall in the trendy rulemaking authority identified inside the Storer Broadcasting and National Broadcasting instances. Petitioner ANPA contends that the possible guidelines are unreasonable in two respects: [Footnote sixteen] first, the rulemaking record did not conclusively set up that prohibiting commonplace possession of co-placed newspapers and broadcast stations might, in reality, result in will increase in the diversity of viewpoints amongst neighborhood communications media; and second, the rules have been primarily based on the diversification aspect to the exclusion of different carrier factors taken into consideration inside the beyond by way of the Commission in making preliminary licensing choices concerning newspaper proprietors, see supra at 436 U. S. 782. With admire to the first factor, we believe the Court of Appeals that, notwithstanding the inconclusiveness of the rulemaking document, the Commission acted rationally in locating that diversification of possession could decorate the possibility of reaching greater range of viewpoints. As the Court of Appeals determined,
"[d]iversity and its consequences are . . . elusive standards, no longer without difficulty described, permit
Page 436 U. S. 797
alone measured without making qualitative judgments objectionable on each coverage and First Amendment grounds."
181 U.S.App.D.C. at 24, 555 F.2nd at 961. Moreover, proof of unique abuses via not unusual owners is difficult to assemble; "the possible benefits of opposition do now not lend themselves to distinctive forecast." FCC v. RCA Communications, Inc., 346 U. S. 86, 346 U. S. 96 (1053). In those occasions, the Commission was entitled to depend upon its judgment, based totally on experience, that
"it's far unrealistic to expect true variety from a generally owned station-newspaper combination. The divergency of their viewpoints can not be anticipated to be similar to in the event that they have been antagonistically run."
Order at 1079-1080; see 181 U.S.App.D.C. at 25, 555 F.second at 962.
As to the Commission s choice to provide controlling weight to its diversification goal in shaping the prospective policies, the Order makes clear that this variation in policy turned into an inexpensive administrative reaction to changed instances in the broadcasting industry. Order at 1074-1075; see FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 137-138 (1940). The Order explained that, even though newspaper proprietors had formerly been allowed, and even endorsed, to acquire licenses for co-located broadcast stations due to the lack of qualified license applicants, a sufficient variety of certified and skilled candidates other than newspaper owners was now to be had. In addition, the number of channels open for brand spanking new licensing had dwindled considerably. It had thus emerge as both possible and more urgent for the Commission to take steps to increase diversification of possession, and a exchange in the Commission s policy toward new licensing supplied the possibility of increasing diversity without inflicting any disruption of present provider. In mild of these concerns, the Commission without a doubt did no longer take an irrational view of the general public interest whilst it determined to impose a prospective ban on new licensing of co-located newspaper-broadcast combinations. [Footnote 17]
Page 436 U. S. 798
Petitioners NAB and ANPA also argue that the guidelines, even though designed to similarly the First Amendment intention of
Page 436 U. S. 799
attaining "the widest viable dissemination of facts from various and antagonistic sources," Associated Press v. United States, 326 U.S. at 326 U. S. 20, nevertheless violate the First Amendment rights of newspaper owners. We can not agree, for this argument ignores the essential proposition that there's no "unabridgeable First Amendment proper to broadcast corresponding to the right of every man or woman to talk, write, or publish." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 388.
The bodily barriers of the broadcast spectrum are well known. Because of problems of interference between broadcast signals, a finite range of frequencies can be used productively; this quantity is far exceeded by using the range of folks wishing to broadcast to the public. In light of this bodily scarcity, Government allocation and regulation of broadcast frequencies are important, as we've got regularly identified. Id. at 395 U. S. 375-377, 395 U. S. 387-388; National Broadcasting Co. v. United States, 319 U.S. at 319 U. S. 210-218; Federal Radio Comm n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 289 U. S. 282 (1933); see supra at 436 U. S. 795. No one here questions the want for such allocation and regulation, and, given that need, we see nothing inside the First Amendment to save you the Commission from allocating licenses for you to sell the "public interest" in diversification of the mass communications media.
NAB and ANPA contend, but, that it is inconsistent with the First Amendment to sell diversification via barring a newspaper proprietor from owning certain broadcasting stations. In aid, they point to our declaration in Buckley v. Valeo, 424 U. S. 1 (1976), to the impact that "government may also [not] restriction the speech of some factors of our society as a way to decorate the relative voice of others," identity. at 424 U. S. 449. As Buckley additionally recognized, however, "the printed media pose precise and special issues no longer present within the conventional free speech case." Id. at 424 U. S. 50 n. 55, quoting Columbia Broadcasting System v. Democratic National Committee, 412 U.S.
Page 436 U. S. 800
at 412 U. S. one hundred and one. Thus, efforts to "`enhanc[e] the volume and first-rate of coverage of public troubles" via regulation of broadcasting may be permissible where comparable efforts to adjust the print media would no longer be. 424 U.S. at 424 U. S. 551, and n. 55, quoting Red Lion Broadcasting Co. v. FCC, supra at 395 U. S. 393; cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Requiring folks who wish to achieve a published license to illustrate that such might serve the "public hobby" does now not restriction the speech of folks that are denied licenses; alternatively, it preserves the interests of the "human beings as an entire . . . in free speech." Red Lion Broadcasting Co., supra at 395 U. S. 390. As we stated in Red Lion, "to deny a station license due to the fact `the public hobby requires it `isn't always a denial of loose speech. " 395 U.S. at 395 U. S. 389, quoting National Broadcasting Co. v. United States, supra at 319 U. S. 227. See additionally Federal Radio Comm n v. Nelson Bros. Bond & Mortgage Co., supra.
Relying on cases inclusive of Speiser v. Randall, 357 U. S. 513 (1958), and Elrod v. Burns, 427 U. S. 347 (1976), NAB and ANPA also argue that the policies unconstitutionally condition receipt of a broadcast license upon forfeiture of the proper to submit a newspaper. Under the regulations, however, a newspaper owner want not forfeit some thing a good way to gather a license for a station positioned in another community. [Footnote 18] More importantly, within the cases relied on by way of those petitioners, not like the immediate case, denial of a gain had the effect of
Page 436 U. S. 801
abridging freedom of expression, since the denial turned into based totally on the content material of constitutionally covered speech; in Speiser, veterans were disadvantaged of a unique belongings tax exemption if they declined to subscribe to a loyalty oath, while in Elrod, sure public personnel have been discharged or threatened with discharge due to their political association. As we wrote in National Broadcasting, supra, "the issue before us might be wholly different" if "the Commission [were] to choose amongst candidates upon the premise of their political, monetary or social views." 319 U.S. at 319 U. S. 226. Here, the rules aren't content material associated; moreover, their purpose and effect is to promote loose speech, not to restriction it.
Finally, NAB and ANPA argue that the Commission has unfairly "singled out" newspaper owners for greater stringent treatment than other license applicants. [Footnote 19] But the rules deal with newspaper owners in basically the equal fashion as different owners of the essential media of mass communications were already treated below the Commission s more than one ownership guidelines, see supra at 436 U. S. 780-781, and nn. 1-three; proprietors of radio stations, television stations, and newspapers alike at the moment are restricted of their potential to gather licenses for co-located broadcast stations. Grosjean v. American Press Co., 297 U. S. 233 (1936), wherein this Court struck down a state tax imposed simplest on newspapers, is thus distinguishable in the diploma to which newspapers have been singled out for special treatment. In addition, the impact of the tax in Grosjean turned into "to restriction the circulate of data to which the public is entitled," id. at 297 U. S. 250, an effect inconsistent with the safety conferred on the press with the aid of the First Amendment.
In the instant case, some distance from searching for to restriction the waft of data, the Commission has acted, within the Court of Appeals words, "to beautify the diversity of information heard by means of the public without ongoing authorities surveillance of the
Page 436 U. S. 802
content material of speech." 181 U.S.App.D.C. at 17, 555 F.2d at 954. The regulations are a reasonable approach of promoting the public hobby in varied mass communications; consequently, they do now not violate the First Amendment rights of people who could be denied broadcast licenses pursuant to them. [Footnote 20] Being forced to "pick among candidates for the same facilities," the Commission has chosen on a "sensible basis," one designed to in addition, rather than contravene, "the device of freedom of expression." T. Emerson, The System of Freedom of Expression 663 (1970).
After upholding the possible factor of the Commission s regulations, the Court of Appeals concluded that the Commission s selection to restriction divestiture to 16 "egregious cases" of "effective monopoly" was arbitrary and capricious inside the that means of § 10(e) of the APA, 5 U.S.C. § 706(2)(A) (1976 ed.). [Footnote 21] We consider the Court of Appeals that guidelines
Page 436 U. S. 803
promulgated after informal rulemaking, while now not concern to check beneath the "enormous evidence" take a look at of the APA, 5 U.S.C. § 706(2)(E) (1976 ed.) quoted in n 21, supra, can be invalidated by using a reviewing courtroom below the "arbitrary or capricious" widespread if they are no longer rational and based on attention of the applicable elements. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 401 U. S. 413-416 (1971). Although this evaluate "is to be searching and cautious," "[t]he court docket is not empowered to replacement its judgment for that of the employer." Id. at 413 U. S. 416.
In the view of the Court of Appeals, the Commission lacked a rational basis, first, for treating existing newspaper-broadcast combos more leniently than combinations that would are trying to find licenses within the destiny; and, 2d, even assuming a difference between existing and new combinations were justified, for requiring divestiture inside the "egregious cases" while allowing all different present combinations to retain in operation. We believe that the confined divestiture requirement displays a rational weighing of competing guidelines, and we therefore reinstate the part of the Commission s order that changed into invalidated by way of the Court of Appeals.
The Commission changed into well aware that isolating present newspaper-broadcast mixtures could promote diversification of possession. It concluded, but, that ordering giant
Page 436 U. S. 804
divestiture would now not result in "the first-rate plausible provider to the American public," Order at 1074, a goal that the Commission has always taken into account and that has been specifically accredited through this Court, FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 309 U. S. 475 (1940); see supra at 436 U. S. 782. In unique, the Commission expressed problem that divestiture would motive "disruption for the industry" and "trouble for individual owners," both of which would result in harm to the general public hobby. Order at 1078. Especially in mild of the truth that the range of co-located newspaper-broadcast mixtures became already on the decline due to natural market forces, and might decline similarly due to the prospective rules, the Commission decided that across-the-board divestiture became now not warranted. See identification. at 1080 n. 29.
The Order recognized several particular respects in which the public hobby might or might be harmed if a sweeping divestiture requirement have been imposed: the steadiness and continuity of meritorious provider furnished via the newspaper proprietors as a collection might be lost; proprietors who had provided meritorious service would unfairly be denied the opportunity to preserve in operation; "monetary dislocations" might save you new owners from obtaining enough running capital to maintain the excellent of neighborhood programming; [Footnote 22] and local possession of broadcast stations would likely decrease. [Footnote 23] Id. at 1078.
Page 436 U. S. 805
We can't say that the Commission acted irrationally in concluding that these public interest harms outweighed the capability gains that could follow from increasing diversification of ownership.
In the past, the Commission has consistently acted on the theory that preserving continuity of meritorious service furthers the general public interest, both in its direct effect of bringing proved broadcast service to the general public, and in its indirect outcome of profitable -- and fending off losses to licensees who've invested the money and effort important to provide high-quality overall performance. [Footnote 24] Thus, even though a broadcast license must be renewed each 3 years, and the licensee must fulfill the Commission that renewal will serve the general public interest, both the Commission and the courts have identified that a licensee who has given meritorious service has a "legitimate renewal expectanc[y]" this is "implicit inside the structure of the Act," and should now not be destroyed absent correct purpose. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 396, 444 F.2d 841, 854 (1970), cert. denied, 403 U.S. 923 (1971); see Citizens Communications Center v. FCC, one hundred forty five U.S.App.D.C. 32, 44, and n. 35, 447 F.second 1201, 1213, and n. 35 (1971); In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming From the Comparative Hearing Process, sixty six F.C.C.2d 419, 420
Page 436 U. S. 806
(1977); n five, supra. [Footnote 25] Accordingly, while diversification of possession is a relevant issue in the context of license renewal as well as preliminary licensing, the Commission has long considered the beyond overall performance of the incumbent as the maximum essential aspect in determining whether or not to provide license renewal, and thereby to allow the existing proprietor to retain in operation. Even where an incumbent is challenged by means of a competing applicant who gives more capacity in terms of diversification, the Commission s widespread exercise has been to go along with the "proved product" and provide renewal if the incumbent has rendered meritorious carrier. See generally In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming from the Comparative Hearing Process, supra; n 5, supra.
In the instantaneous intending, the Commission mainly noted that the existing newspaper-broadcast cross-proprietors as a group had a "lengthy document of service" inside the public interest; many had been pioneers in the broadcasting industry and had hooked up and persisted "[t]raditions of service" from the outset. Order at 1078. [Footnote 26] Notwithstanding the Commission s diversification coverage, all were granted preliminary licenses upon findings that the public hobby might be served thereby, and those that were in existence for extra than three years had also had their
Page 436 U. S. 807
licenses renewed on the floor that the general public hobby might be furthered. The Commission mentioned, moreover, that its very own examine of current co-placed newspaper-television combinations confirmed that, in terms of percent of time devoted to numerous classes of neighborhood programming, these stations had displayed "an undramatic however although statistically great superiority" over other television stations. Id. at 1078 n. 26. [Footnote 27] An across-the-board divestiture requirement would result in loss of the services of those advanced licensees, and -- whether or not divestiture precipitated actual losses to current owners, or simply denial of reasonably predicted profits -- the result would be that future licensees would be discouraged from making an investment the resources vital to provide high-quality provider.
At the identical time, there has been no assure that the licensees who changed the present pass-proprietors might be able to provide the equal stage of carrier or reveal the identical long-term dedication to broadcasting. And even supposing the brand new owners had been able in the long run to provide comparable or better provider, the Commission observed that divestiture could purpose severe disruption in the transition period. Thus, the Commission determined that new owners "would lack the long information of the community, and could have to begin raw," and -- because of high hobby charges -- won't be capable of reap enough operating capital to maintain the pleasant of local programming. Id. at 1078; see n. 22 supra. [Footnote 28]
Page 436 U. S. 808
The Commission s fear that nearby possession could decline turned into grounded in a rational prediction, primarily based on its expertise of the broadcasting industry and supported by using feedback in the report, see Order at 1068-1069, that the various existing newspaper-broadcast combos owned by using neighborhood pastimes would respond to the divestiture requirement by using trading stations with out-of-metropolis owners. It is undisputed that more or less 75 of the prevailing co-positioned newspaper-television mixtures are regionally owned, see 181 U.S.App.D.C. at 26-27, 555 F.2d at 963-964, and these proprietors knowledge in their nearby communities and issue for nearby affairs, constructed over a duration of years, might be lost in the event that they had been changed with out of doors interests. Local ownership, in and of itself, has been identified to be a thing of a few -- if especially slight -- importance even in the context of initial licensing decisions. See Policy Statement on Comparative Broadcast Hearings, 1 F.C.C.2nd at 396. It become now not unreasonable, consequently, for the Commission to remember it as one among several elements militating towards divestiture of combinations that have been in life for many years. [Footnote 29]
Page 436 U. S. 809
In light of these countervailing concerns, we can not accept as true with the Court of Appeals that it was arbitrary and capricious for the Commission to "grandfather" maximum present combinations, and to depart fighters of those combinations to their treatments in character renewal complaints. In the latter connection, we notice that, while man or woman renewal court cases are not likely to perform any "basic restructuring" of the existing ownership styles, the Order does make clean that existing combos may be situation to assignment via competing applicants in renewal court cases, to the identical quantity as they have been previous to the immediate rulemaking complaints. Order at 1087-1088 (emphasis neglected); see n 12, supra. That is, diversification of ownership could be a relevant but fairly secondary element. And, even inside the absence of a competing applicant, license renewal may be denied if, inter alia, a challenger can display that a commonplace proprietor has engaged in specific financial436 Uthirteen, supra.
In concluding that the Commission acted unreasonably in not extending its divestiture requirement across the board, the Court of Appeals seemingly located heavy reliance on a "presumption" that existing newspaper-broadcast combos "do not serve the public hobby." See supra at 436 U. S. 790-791. The court docket derived this presumption primarily from the Commission s own diversification policy, as "reaffirmed" by using adoption of the possible policies on this proceeding, and secondarily from " [t]he policies of the First Amendment," 181 U.S.App.D.C. at 26, 555 F.2nd at 963, and the Commission s statutory obligation to "inspire the bigger and more effective use of radio in the public hobby," forty seven U.S.C. § 303(g). As defined
Page 436 U. S. 810
in 436 U. S. we agree that diversification of possession furthers statutory and constitutional rules, and, as the Commission identified, isolating present newspaper-broadcast combos would promote diversification. But the weighing of regulations under the "public hobby" wellknown is a undertaking that Congress has delegated to the Commission within the first example, and we're not able to discover anything within the Communications Act, the First Amendment, or the Commission s past or gift practices that would require the Commission to "presume" that its diversification policy have to be given controlling weight in all circumstances. [Footnote 30]
Such a "presumption" would seem to be inconsistent with the Commission s longstanding and judicially authorised exercise of giving controlling weight in a few occasions to its extra wellknown goal of achieving "the excellent workable carrier to the public." Certainly, as mentioned in 436 U. S. the Commission, through its license renewal coverage, has made clear that it considers diversification of possession to be a component of less importance while determining whether to permit an existing licensee to retain in operation than while evaluating candidates looking for initial licensing. Nothing in the language or the legislative records of § 303(g) indicates that Congress intended to foreclose all differences in remedy among new and current licensees, and certainly, in amending § 307(d) of the Act in 1952, Congress appears to have lent its approval to the Commission s coverage of comparing present licensees on a
Page 436 U. S. 811
rather exceptional basis from new candidates. [Footnote 31] Moreover, if enactment of the prospective policies in this proceeding itself had been deemed to create a "presumption" in choose of divestiture, the Commission s ability to test with new policies might be seriously hampered. One of the most vast benefits of the administrative procedure is its capability to adapt to new occasions in a flexible way, see FCC v. Pottsville Broadcasting Co., 309 U.S. at 309 U. S. 137-138, and we are unwilling to presume that the Commission acts unreasonably while it comes to a decision to strive out a alternate in licensing policy often on a prospective foundation.
The Court of Appeals additionally relied on its perception that the guidelines militating against divestiture have been "lesser policies" to which the Commission had not given as a great deal weight inside the past as its diversification policy. See supra at 436 U. S. 791. This perception is concern to plenty the equal criticism because the "presumption" that existing co-located newspaper-broadcasting combos do now not serve the general public interest. The Commission s beyond situation with heading off disruption of existing carrier is abundantly illustrated with the aid of its license renewal regulations. In addition, it is well worth noting that inside the beyond when the Commission has
Page 436 U. S. 812
changed its more than one-possession regulations it has almost continuously tailored the changes as a way to operate thoroughly or broadly speaking on a prospective foundation. For instance, the guidelines adopted in 1970 prohibiting commonplace possession of a VHF tv station and a radio station serving the identical marketplace had been made to use simplest to new licensing decisions; no divestiture of present combinations was required. See n three, supra. The limits set in 1953 on the whole numbers of stations someone ought to own, upheld by way of this Court in United States v. Storer Broadcasting Co., 351 U. S. 192 (1956), had been deliberately set at stages that might not require extensive divestiture of existing mixtures. See Multiple Ownership of AM, FM and Television Broadcast Stations, 18 F.C.C. at 292. And, at the same time as the rules adopted in the early 1940 s prohibiting ownership or control of multiple station within the same broadcast carrier within the equal network required divestiture of about 20 AM radio combos, FCC Eleventh Annual Report 12 (1946), the Commission afforded an opportunity for case-by-case review, see Multiple Ownership of Standard Broadcast Stations, eight Fed.Reg. 16065 (1943). Moreover, television and FM radio had no longer yet advanced, so that software of the policies to these media changed into entirely potential. See Rules and Regulations Governing Commercial Television Broadcast Stations, supra, n l; Rules Governing Standard and High Frequency Broadcast Stations, supra, n 1.
The Court of Appeals reputedly reasoned that the Commission s concerns with recognize to disruption of existing service, monetary dislocations, and decreases in local possession always couldn't be very weighty because the Commission has a practice of robotically approving voluntary transfers and assignments of licenses. See 181 U.S.App.D.C. at 26-28, 555 F.second. at 963-965. But the query of whether or not the Commission need to compel proved licensees to divest their stations is a exceptional question from whether the general public hobby is served
Page 436 U. S. 813
with the aid of allowing transfers by using licensees who no longer desire to retain within the business. As the Commission s quick explains:
"[I]f the Commission were to force broadcasters to stay in business against their will, the carrier provided beneath such occasions, albeit non-stop, might well not be really worth preserving. Thus, the fact that the Commission approves assignments and transfers in no manner undermines its choice to region a premium at the continuation of established beyond service by means of those licensees who desire to remain in business."
Brief for Petitioner in No. 76-1471, p. 38 (footnote disregarded). [Footnote 32]
The Court of Appeals final foundation for concluding that the Commission acted arbitrarily in now not giving controlling weight to its divestiture policy was the Court s finding that the rulemaking file did now not appropriately "expose the quantity to which divestiture would truly threaten" the competing rules relied upon by means of the Commission. 181 U.S.App.D.C. at 28, 555 F.2nd at 965. However, to the quantity that real determinations were worried in the Commission s decision to "grandfather" most existing combinations, they were normally of a judgmental or predictive nature -- e.g., whether or not a divestiture requirement could bring about trading of stations without-of-metropolis proprietors; whether or not new proprietors would perform as well as existing pass-owners, either in the brief run or ultimately; whether losses to current owners might result from compelled sales; whether such losses would discourage destiny investment in exceptional programming; and whether new proprietors would have enough operating capital to finance neighborhood programming.
Page 436 U. S. 814
In such occasions whole real guide in the file for the Commission s judgment or prediction is not possible or required; "a forecast of the direction wherein destiny public hobby lies always includes deductions primarily based on the expert understanding of the corporation," FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 365 U. S. 29 (1961); see Industrial Union Dept., AFL-CIO v. Hodgson, 162 U.S.App.D.C. 331, 338-339, 499 F.second 467, 474-475 (1974).
We also ought to conclude that the Court of Appeals erred in conserving that it turned into arbitrary to reserve divestiture in the sixteen "egregious cases" whilst permitting other present combos to hold in operation. The Commission s selection become based now not -- because the Court of Appeals may additionally have believed, see supra at 436 U. S. 792 -- on a conclusion that divestiture would be greater dangerous within the "grandfathered" markets than within the 16 affected markets, however instead on a judgment that the want for diversification became in particular awesome in cases of neighborhood monopoly. This policy judgment become clearly now not irrational, see United States v. Radio Corp. of America, 358 U.S. at 358 U. S. 351-352, and indeed was founded on the very identical assumption that underpinned the diversification policy itself and the possible policies upheld via the Court of Appeals and now with the aid of this Court -- that the extra the range of proprietors in a market, the greater the possibility of attaining variety of program and carrier viewpoints.
As to the Commission s standards for figuring out which existing newspaper-broadcast combinations have an "powerful monopoly" within the "local marketplace of thoughts in addition to economically," we assume the standards settled upon by the Commission reflect a rational legislative-type judgment. Some line needed to be drawn, and it changed into infrequently unreasonable for the Commission to restrict divestiture to communities wherein there is not unusual possession of the handiest day by day newspaper and
Page 436 U. S. 815
both the most effective television station or the best broadcast station of any kind encompassing the whole community with a clean sign. Cf. United States v. Radio Corp. of America, supra at 358 U. S. 351-352, quoted supra at 436 U. S. 796. It changed into not irrational, furthermore, for the Commission to brush aside media sources apart from newspapers and broadcast stations in setting its divestiture requirements. The research stated by way of the Commission in its word of rulemaking unanimously concluded that newspapers and tv are the two most widely applied media sources for neighborhood information and discussion of public affairs; and, because the Commission noted in its Order at 1081,
"apart from the truth that [magazines and other periodicals] regularly had most effective a tiny fraction within the market, they were no longer given actual weight since they often dealt completely with regional or countrywide problems and overlooked nearby problems."
Moreover, the differences in remedy between radio and tv stations, see n 10, supra, had been simply justified in light of the a ways more have an effect on of television than radio as a source for neighborhood news. See Order at 1083.
The judgment of the Court of Appeals is affirmed in element and reversed in part.
It is so ordered.
MR. JUSTICE BRENNAN took no part in the consideration or decision of these instances.
* Together with No. seventy six-1521, Channel Two Television Co. et al. v. National Citizens Committee for Broadcasting, No. 76-1595, National Association of Broadcasters v. Federal Communications Commission et al.; No. seventy six-1604, American Newspaper Publishers Assn. v. National Citizens Committee for Broadcasting et al., No. 76-1624, Illinois Broadcasting Co., Inc., et al. v. National Citizens Committee for Broadcasting et al.; and No. 76-1685, Post Co. et al. v. National Citizens Committee for Broadcasting et al., also on certiorari to the equal court.
See Multiple Ownership of Standard Broadcast Stations (AM radio), eight Fed.Reg. 16065 (1943); Rules and Regulations Governing Commercial Television Broadcast Stations, § four.226, 6 Fed.Reg. 2284, 2284-2285 (1941); Rules Governing Standard and High Frequency Broadcast Stations (FM radio), § 3.228(a), 5 Fed.Reg. 2382, 2384 (1940). In 1941 the Commission issued "chain broadcasting" policies that, amongst other matters, prohibited any agency from operating more than one broadcast community and barred any network from proudly owning a couple of preferred broadcast station within the equal community. See National Broadcasting Co. v. United States, 319 U. S. one hundred ninety, 319 U. S. 193, 319 U. S. 206-208 (1943). In 1964, the Commission tightened its a couple of ownership guidelines so that you can prohibit commonplace possession of any stations inside the same broadcast provider that have overlaps in sure service contours. See Multiple Ownership of Standard, FM and Television Broadcast Stations, forty five F.C.C. 1476 (1964).
See Multiple Ownership of AM, FM and Television Broadcast Stations, 18 F.C.C. 288 (1953). The rules restrained anybody to a total of 7 AM radio stations, seven FM radio stations, and five VHF tv stations. In United States v. Storer Broadcasting Co., 351 U. S. 192 (1956), the regulations were upheld via this Court.
Multiple Ownership of Standard, FM and Television Broadcast Stations, 22 F.C.C.2d 306 (1970), as modified, 28 F.C.C.second 662 (1971). No divestiture of existing television-radio combos changed into required. The rules also provided that license applications related to common ownership of a UHF tv station and a radio station serving the identical market would be considered on a case-with the aid of-case foundation, and that commonplace ownership of AM and FM radio stations serving the equal marketplace could be approved.
See, e.g., McClatchy Broadcasting Co. v. FCC, 99 U.S.App.D.C.195, 239 F.second 15 (1956), cert. denied, 353 U.S. 918 (1957); Scripps-Howard Radio, Inc. v. FCC, 89 U.S.App.D.C. thirteen, 189 F.2nd 677, cert. denied, 342 U.S. 830 (1951).
In the early 1940 s, the Commission taken into consideration adopting policies barring commonplace possession of newspapers and radio stations, see Order Nos. 79 and 79-A, 6 Fed.Reg. 1580, 3302 (1941), but, after an extensive rulemaking proceeding, determined to deal with the trouble on an advert hoc foundation, Newspaper Ownership of Radio Stations, Notice of Dismissal of Proceeding, 9 Fed.Reg. 702 (1944).
The Commission s coverage with respect to license renewals has gone through some evolution, however the general exercise has been to location large weight at the incumbent s past overall performance and to grant renewal -- even wherein the incumbent is challenged by using a competing applicant if the incumbent has rendered meritorious carrier. In 1970, the Commission followed a coverage assertion purporting to codify its preceding exercise as to comparative license renewal hearings. Policy Statement Concerning Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2nd 424. Citing issues of predictability and stability, the declaration followed the policy that, wherein an incumbent s software provider "has been substantially attuned to meeting the desires and hobbies of its area," the incumbent would be granted an automated preference over any new applicant without consideration of other elements -- together with diversification of possession -- that are taken into consideration in preliminary licensing decisions. Id. at 425. This policy declaration became overturned on appeal, Citizens Communications Center v. FCC, a hundred forty five U.S.App.D.C. 32, 447 F.2d 1201 (1971), on the floor that the Commission changed into required to preserve complete hearings at which all relevant public interest elements could be taken into consideration. The court agreed with the Commission, however, that "incumbent licensees must be judged on the whole on their statistics of past performance." Id. at 44, 447 F.2d at 1213. The court docket stated in addition that "superior overall performance [by an incumbent] should be a plus of primary significance in renewal lawsuits." Ibid. (emphasis in original). After the immediately regulations were promulgated, the Commission followed a new policy assertion in reaction to the Citizens Communications decision, returning to a case-by-case method in which all elements would be considered, but wherein the significant thing could nevertheless be the beyond overall performance of the incumbent. In re Formulation of Policies Relating to the Broadcast Renewal Applicant, Stemming from the Comparative Hearing Process, sixty six F.C.C.2d 419 (1977), pet. for evaluate pending sub nom. National Black Media Coalition v. FCC, No. 77-1500 (CADC).
This proceeding turned into a continuation of the sooner intending that had led to adoption of regulations barring new licensing of radio-VHF tv combos in the equal market, even as allowing AM-FM mixtures and consigning radio-UHF television combinations to case-by using-case remedy. See supra at 436 U. S. 781, and n. 3. In addition to the suggestion with respect to commonplace possession of newspapers and broadcast stations, the Further Notice of Proposed Rulemaking counseled the possibility of prohibiting AM-FM combos and requiring divestiture of present television-radio combinations serving the equal market, however those latter proposals were no longer followed and they are now not at issue right here. See Order at 1052-1055.
The research usually showed that radio become the third most important supply of information, ranking in advance of magazines and different periodicals. See 22 F.C.C. second at 345.
The guidelines prohibit a newspaper owner from obtaining a license for a co-placed broadcast station, both via switch or by way of authentic licensing; if a printed licensee acquires a daily newspaper within the equal marketplace, it need to take away its license within a 12 months or by the time of its next renewal date, whichever comes later. See Order at 1074-1076, 1099-1107. Noncommercial instructional television stations and college newspapers are not included within the scope of the guidelines. forty seven CFR § seventy three.636, and n. 10 (1976). For functions of the regulations, ownership is described to consist of operation or manage, § seventy three.636 n. 1; a "each day newspaper" is described as "one which is published four or extra days in keeping with week, that's inside the English language and which is circulated commonly inside the network of publication," § seventy three.636 n. 10; and a broadcast station is considered to serve the same network as a newspaper if a specified provider contour of the station -- "Grade A" for television, 2 mV/m for AM, and 1 mV/m for FM -- encompasses the city wherein the newspaper is published, Order at 1075.
The Commission did offer, however, for waiver of the prospective ban in great occasions. See Order at 1076 n. 24, 1077; Memorandum Opinion and Order (Docket No. 18110), fifty three F.C.C.2nd 589, 591, 592 (1975).
Radio and television stations are dealt with the same below the regulations to the extent that, if there is best one broadcast station serving a network -- irrespective of whether it is a radio or television station -- not unusual possession of it and a co-positioned each day newspaper is barred. On the other hand, radio and tv stations are given distinctive weight to the volume that the presence of a radio station does no longer exempt a newspaper-tv combination from divestiture, while the presence of a tv station does exempt a newspaper-radio aggregate. The latter distinction in remedy was defined at the floor that,
"[r]ealistically, a radio station can't be taken into consideration the identical of either the paper or the television station in any feel, least of all in terms of being a source for information or for being the medium grew to become to for dialogue of subjects of nearby difficulty."
Order at 1083. The Commission also explained that the guidelines did no longer don't forget the presence of magazines and other periodicals, or out-of-metropolis radio or tv stations not encompassing the whole network with a clear signal, in view that -- apart from their frequently small marketplace proportion -- those assets couldn't be depended upon for insurance of local problems. See identification. at 1081-1082.
While noting that the Commission "would not be favorably willing to supply any request premised on views rejected whilst the rule of thumb become followed," the Order stated that brief or everlasting waivers is probably granted if the not unusual owner were unable to promote his station or could sell it simplest at an artificially depressed fee; if it can be proven that separate possession of the newspaper and the printed station "can't be supported within the locality"; or, greater generally, if the underlying purposes of the divestiture rule "might be better served with the aid of continuation of the contemporary ownership sample." Id. at 1085.
As to existing newspaper-broadcast mixtures no longer concern to the divestiture requirement, the Commission indicated that, within sure barriers, problems relating to attention of possession might continue to be considered on a case-by-case basis inside the context of license renewal lawsuits. Thus, even as making clean the Commission s view that renewal complaints have been no longer a proper occasion for any "standard restructuring" of the published enterprise, the Order stated that diversification of ownership might remain a applicable consideration in renewal lawsuits wherein commonplace proprietors had been challenged with the aid of competing candidates. Id. at 1088 (emphasis in unique); see identity. at 1087-1089; n. five, supra. The Order advised, moreover, that wherein a petition to disclaim renewal is filed, but no competing applicant steps forward, the renewal software could be set for hearing if a enough displaying had been fabricated from precise abuses through a commonplace proprietor, or of economic monopolization of the sort that would violate the Sherman Act. Order at 1080 n. 29, 1088.
The Order does no longer make clear the quantity to which hearings might be available on petitions to disclaim renewal that do not allege particular abuses or financial monopolization. Counsel for the Commission informs us, however, that the Order was supposed to
"limi[t] such challengers best to the volume that [the Commission] will not allow them to reargue in an adjudicatory placing the question already determined on this rulemaking, i.e., in what situations is the continued existence of co-placed newspaper-broadcast mixtures in line with se undesirable."
Reply Brief for Petitioner in No. 71471, p. 8; see n thirteen, infra.
The Court of Appeals seemingly believed that, under the phrases of the Order, destiny petitions to disclaim license renewal to existing go-proprietors could be set for listening to best if they alleged economic monopolization, and now not in the event that they alleged particular programming abuses. See 181 U.S.App.D.C. at 29 n. 108, 555 F.2d at 966 n. 108. On the idea of this assumption, the court held that the requirements for petitions to disclaim were unreasonable. Since we do not study the Order as foreclosing the opportunity of a hearing upon a declare of particular abuses, and for the reason that Commission itself is apparently of the view that the best difficulty foreclosed in petitions to disclaim is the question of whether newspaper-broadcast possession is in step with se unwanted, see n 12, supra, we can't say that the Order itself unreasonably limits the provision of petitions to deny renewal. The reasonableness of the Commission s moves on specific petitions to deny filed subsequent to the Order is, of path, not before us at this time.
Upon movement of the Commission the Court of Appeals briefly stayed its mandate -- insofar as it overturned the Commission s limited divestiture requirement -- pending the filing of a petition for certiorari by using the Commission. 181 U.S.App.D.C. 30, 555 F.second 967 (1977). The Commission filed its petition for certiorari in the time allocated with the aid of the Court of Appeals, and for this reason the stay has remained in effect. See 28 U.S.C. § 2101(f); Fed.Rule App. Proc. forty one(b).
Several of the petitioners contend that the Court of Appeals passed the right function of a reviewing court docket with the aid of directing the Commission to undertake a rule requiring divestiture of all current combinations, instead of allowing the Commission to rethink its decision and formulate its own technique in mild of the criminal standards set forth through the court. Petitioners cite properly set up authority to the effect that, absent fantastic situations,
"the feature of the reviewing court ends while an error of regulation is laid bare. At that factor, the problem once more goes to the Commission for reconsideration."
FPC v. Idaho Power Co., 344 U. S. 17, 344 U. S. 20 (1952); accord, NLRB v. Food Store Employees, 417 U. S. 1, 417 U. S. 10 (1974); South Prairie Constr. Co. v. Operating Engineers, 425 U. S. 800, 425 U. S. 805-806 (1976). In mild of our disposition of those instances, we need no longer determine whether or not the Court of Appeals changed into justified in departing from the latter path of action.
The rationality of the restricted divestiture requirement is mentioned in 436 U. S. infra.
NAB and ANPA make one final argument in aid of their function that the guidelines exceed the Commission s authority. They declare that -- regardless of the otherwise broad scope of the Commission s rulemaking authority -- each Congress and the Commission itself have indicated that the Commission lacks authority to promulgate any rules prohibiting newspaper proprietors from acquiring broadcast licenses. They depend on a criminal opinion with the aid of the Commission s first General Counsel that turned into submitted to the Senate Interstate Commerce Committee, Memorandum to the Commission: Opinion of the General Counsel, Jan. 25, 1937, reprinted in App. 445-465, and the legislative history of proposed amendments to the Act that were considered inside the late 1940 s and early 1950 s but by no means handed, S. 1333, § 25, Hearings on S. 1333 earlier than a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 80th Cong., 1st Sess. (1947); S.1973, § 14, 81st Cong., 1st Sess. (1949); S. 658, 82d Cong., 2nd Sess. (1952) (House amendment § 7(c)).
This argument is fully unavailing. Apart from any questions as to the load that have to receive to a General Counsel s opinion which turned into by no means officially adopted by way of the Commission, and to legislative statements made subsequent to enactment of the statute being construed, see, e.g., United States v. Southwestern Cable Co., 392 U. S. 157, 392 U. S. a hundred and seventy (1968); United States v. Wise, 370 U. S. 405, 370 U. S. 411 (1962), the stated materials are genuinely inappropriate to the issue in this case. The Commission s General Counsel simply concluded that newspaper owners, as a class, couldn't be clearly barred from proudly owning broadcast stations; he did now not address the a whole lot narrower query of whether a newspaper owner can be barred from acquiring a broadcast station placed in the identical community because the newspaper. See Opinion of the General Counsel, supra, App. 447, 449. Similarly, the proposed amendments to the Act apparently might have most effective precluded the Commission from adopting a complete prohibition on newspaper possession of broadcast stations. See Hearings on S. 1333, supra, at forty four, sixty nine-70; Hearings on S.1973 before a Subcommittee of the Senate Committee on Interstate & Foreign Commerce, 81st Cong., 1st Sess., 20-21, 42-forty four, 103-105 (1949); S.Rep. No. 741, 81st Cong., 1st Sess., 2-three (1949). Congress rejection of the amendments as needless, see House Conf.Rep. No. 2426, 82d Cong., 2d Sess., 18-19 (1952); S.Rep. No. 741, supra, at 2-3 -- following the Commission s representation that it lacked such authority even with out the amendments, see Hearings on S.1973, supra at 103-104 (testimony of FCC Chairman Hyde) -- sheds no mild at the question at trouble right here.
We be aware also that the guidelines are in shape quite much like the prohibitions imposed by means of the antitrust laws. This court has held that software of the antitrust legal guidelines to newspapers isn't always simplest consistent with, however is certainly supportive of, the values underlying, the First Amendment. See, e.g., Associated Press v. United States, 326 U. S. 1 (1945); Lorain Journal Co. v. United States, 342 U. S. 143 (1951); Citizen Publishing Co. v. United States, 394 U. S. 131, 394 U. S. 139-a hundred and forty (1969). See additionally United States v. Radio Corp. of America, 358 U. S. 334, 358 U. S. 351-352 (1959). Since the Commission relied normally on First Amendment rather than antitrust concerns, but, the fact that the antitrust legal guidelines are completely relevant to newspapers isn't always a entire answer to the problems in this example.
NAB frames this argument in phrases of the First Amendment; ANPA advances it as an same safety declare below the Fifth Amendment.
The reasonableness of the guidelines as a means of accomplishing diversification is underscored by means of the reality that waivers are doubtlessly available from each the potential and the divestiture regulations in instances wherein a published station and a co-located every day newspaper cannot live to tell the tale with out common possession. See nn. 9 eleven supra.
The APA offers in relevant element:
"To the volume vital to choice and when supplied, the reviewing court docket shall decide all applicable questions of regulation, interpret constitutional and statutory provisions, and decide the which means or applicability of the phrases of an employer action. The reviewing courtroom shall --"
"* * * *"
"(2) keep illegal and set apart business enterprise motion, findings, and conclusions located to be -- "
"(A) arbitrary, capricious, an abuse of discretion, or in any other case no longer in accordance with law;"
"(B) contrary to constitutional right, power, privilege, or immunity;"
"(C) in excess of statutory jurisdiction, authority, or boundaries, or quick of statutory right;"
"(D) without observance of manner required by using regulation;"
"(E) unsupported by sizeable evidence in a case problem to sections 556 and 557 of this title or in any other case reviewed at the file of an organization hearing provided by statute; or"
"(F) unwarranted by the records to the extent that the facts are problem to trial de novo by the reviewing court docket."
"In making the foregoing determinations, the court shall overview the entire document or those components of it stated via a celebration, and due account will be taken of the rule of prejudicial blunders."
5 U.S.C. § 706(2) (1976 ed.).
Although the Order is much less than absolutely clear on this regard, the Commission s idea with appreciate to "monetary dislocations" and programming apparently became that, because of high interest fees, new proprietors would should devote a extensive portion of revenues to debt provider, and inadequate running capital might remain to finance nearby programming. See Order at 1068 (describing comments to this impact).
In the Order, the Commission expressed challenge that a sweeping divestiture requirement "may want to lessen nearby ownership in addition to the involvement of proprietors in management." Id. at 1078 (emphasis delivered). The Court of Appeals questioned the validity of any reliance on proprietor involvement in control, due to the fact "no evidence became provided that the local proprietors . . . are actively involved in every day management" and the Order itself had located that "[m]ost of the events state that their broadcast stations and newspapers have separate control, centers, and body of workers. . . . " 181 U.S. App D.C. at 27, 555 F.2nd at 964, quoting Order at 1059. Of route, the reality that newspapers and broadcast stations are separately controlled does no longer foreclose the possibility that the not unusual proprietor participates in management of the printed station and not the newspaper. But in any event, the Commission simply did not vicinity any enormous weight on this factor, and we therefore want no longer take into account it. See 5 U.S.C. § 706 (1976 ed.), quoted in part in n 21, supra, (rule of prejudicial error).
We believe the Court of Appeals that
"[p]rivate losses are a relevant issue beneath the Communications Act best whilst proven to have an unfavorable effect on the provision of broadcasting service to the general public."
181 U.S.App.D.C. at 27-28, 555 F.2d at 964-965, bringing up FCC v. Sanders Bros. Radio Station, 309 U. S. 470, 309 U. S. 474-476 (1940), and Carroll Broadcasting v. FCC, 103 U.S.App.D.C. 346, 258 F.2nd 440 (1958). Private losses that result in discouragement of funding in nice carrier have such an effect.
Section 301 of the Act offers that "no [broadcast] license will be construed to create any proper, past the terms, situations, and intervals of the license." 47 U.S.C. § 301. The truth that a licensee does not have any prison or proprietary proper to a renewal does not imply, however, that the Commission cannot keep in mind the incumbent s past overall performance in identifying whether or not renewal could serve the general public interest. See infra at 436 U. S. 810-811, and n. 31.
See B. Robbins, A Study of Pioneer AM Radio Stations and Pioneer Television Stations (1971), reprinted in App. 694-712.
Earlier inside the Order, the Commission had referred to that this take a look at become the first to be primarily based on the 1973 annual programming reports for television stations, which have been no longer but available on the time the programming research submitted via the events have been performed. Order at 1073; see identity. at 1094.
The United States indicates that the Commission could not well have trusted this take a look at, since it became now not made to be had to the events for remark earlier of the Commission s choice. Brief for United States forty six n. 39. No party petitioned the Commission for reconsideration in this floor, nor turned into the difficulty raised within the Court of Appeals or in any of the petitions for certiorari, and it's miles consequently no longer earlier than us.
Commissioner Hooks efficaciously summarized this complicated of things in his separate opinion, concurring inside the Commission s choice no longer to reserve throughout-the-board divestiture, at the same time as dissenting on other grounds:
"[A]s I ponder the superior performance of many newspaper-owned stations . . . and speculate at the performance of a few unknown successor, my conditioned reaction yields a hen inside the hand is worth two within the bush philosophy. Opponents [of divestiture] ask: Why require divestiture, for its personal sake, of a superior broadcaster, with experience, historical past and resources, for an unknown licensee whose operation may be inferior? Can we manage to pay for, thru extensive-scale divestiture, to test with a dogmatic diversity formulation; and, after the churning has ceased, who will earnings -- the new owners or the general public?"
Order at 1109.
The fact that 75%, however no longer all, of the existing television-newspaper mixtures are domestically owned does not imply that it changed into irrational for the Commission to don't forget local ownership as certainly one of numerous elements justifying a choice to "grandfather" most current combinations, which includes those who are not domestically owned. The Commission has extensive discretion as to whether or not to continue with the aid of rulemaking or adjudication, see SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 201-202 (1947), and -- within the context of a rule based on a multifactor weighing method -- every consideration need no longer be equally applicable to each person case.
The Order at one factor states:
"If our democratic society is to characteristic, not anything can be more critical than insuring that there is a unfastened glide of records from as many divergent resources as feasible."
Order at 1079 (emphasis delivered). The Court of Appeals diagnosed, however, that "the Commission possibly did not intend for this . . . statemen[t] to be study actually," 181 U.S.App.D.C. at 26, 555 F.2d at 963, and, certainly, it appears from the context that the assertion changed into supposed best as an evidence of why the Commission turned into adopting a First Amendment, instead of an antitrust, focus.
Prior to 1952, § 307(d) furnished that selections on renewal applications "shall be restricted to and ruled by way of the identical issues and practice which have an effect on the granting of original packages." See Communications Act of 1934, § 307(d), 48 Stat. 1084. In 1952, the section changed into amended to offer without a doubt that renewal "may be granted . . . if the Commission reveals that public interest, comfort, and necessity might be served thereby." Communications Act Amendments, 1952, § 5, sixty six Stat. 714. The House Report explained that the previous language "is neither sensible nor does it replicate the manner wherein the Commission clearly has treated renewal cases," H.R.Rep. No. 1750, 82d Cong., 2d Sess., 8 (1952), and the Senate Report especially stated that the Commission has the
"right and duty to consider, inside the case of a station which has been in operation and is applying for renewal, the overall overall performance of that station towards the large preferred of public interest, comfort, and necessity,"
S.Rep. No. 44, 82d Cong., 1st Sess., 7 (1951).
The Commission also points out, Brief for Petitioner in No. seventy six-1471, p. 24, that it has a rule in opposition to "trafficking" -- i.e., the purchase and sale of licenses to comprehend a brief profit -- that applies to license transfers or assignments inside 3 years after a licensee commences operations. See 47 CFR § 1.597 (1976); Crowder v. FCC, one hundred thirty U.S.App.D.C.198, 201-202, and nn. 22-23, 399 F.2d 569, 572-573, and nn. 22-23, cert. denied, 393 U.S. 962 (1968).
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