Agape Church, Inc. v. Federal Communications Commission
407 U.S. App. D.C. 408
| D.C. Cir. | 2013Background
- The Cable Act requires must-carry broadcast signals to be “viewable via cable on all television receivers of a subscriber” connected to a cable system. 47 U.S.C. § 534(b)(7).
- In 2007 the FCC adopted a temporary “Viewability Rule” requiring hybrid (analog+digital) cable operators to downconvert must-carry digital broadcasts to analog for analog subscribers; the rule was scheduled to sunset.
- By 2012 market and technology changed: analog-only subscribers declined sharply, consumer digital converter devices (DTAs) became widely available (≈27 million), and many cable systems moved toward all-digital service.
- The FCC’s 2012 “Sunset Order” allowed the Viewability Rule to expire and instead permitted cable operators to meet the statutory viewability mandate by offering low-cost or free conversion equipment to analog customers.
- Must-carry broadcasters challenged the Sunset Order on four grounds: (1) statute unambiguously requires viewability without added equipment (Chevron Step One); (2) the FCC’s interpretation is unreasonable (Chevron Step Two); (3) the Order is arbitrary and capricious; and (4) the NPRM did not adequately notify the public (logical outgrowth/APA).
- The D.C. Circuit denied the petition for review, holding the FCC’s equipment-based approach was within its statutory authority, reasonable, supported by the record, and adequately noticed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 534(b)(7) unambiguously requires must-carry signals to be viewable on subscribers’ TVs without additional equipment (Chevron Step One) | Broadcasters: “viewable” means actually viewable on TV sets without added converters | FCC: statute is ambiguous; “viewable” can mean viewable with low/no-cost converters; Congress left implementation to FCC under § 534(b)(4)(B) | Court: statute ambiguous; FCC interpretation permissible; reject Step One challenge |
| Whether the FCC’s equipment-based interpretation is unreasonable (Chevron Step Two) | Broadcasters: shifting burden to subscribers contradicts statutory scheme and makes statutory distinctions meaningless | FCC: changed market/technology justify reinterpretation; agency has discretion to adapt rules; converters widely available and affordable | Court: FCC acted reasonably under changed circumstances; interpretation survives Chevron Step Two |
| Whether the Sunset Order is arbitrary and capricious (APA § 706(2)(A)) | Broadcasters: FCC ignored harms to stations and relied on optimistic assumptions about converter uptake | FCC: relied on market data showing decline in analog subscribers and availability/use of DTAs; provided remedies via complaint process if operators fail to make boxes affordable | Court: record supports FCC’s findings; Order not arbitrary or capricious |
| Whether the NPRM provided adequate notice of the equipment-based alternative (logical outgrowth) | Broadcasters: final rule diverged from NPRM and was not fairly disclosed; parties only learned via press | FCC: NPRM explicitly solicited comment on sunset and noted subscribers might need converters; asked for cost data and alternatives | Court: interested parties should have anticipated equipment-based approach; notice adequate |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (framework for judicial review of agency statutory interpretations)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency rulemaking)
- Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994) (Turner I) (cable operators’ First Amendment interests and must-carry background)
- Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (must-carry upheld under intermediate scrutiny; governmental interests identified)
- Rust v. Sullivan, 500 U.S. 173 (1991) (agencies may adapt rules to changing circumstances)
- FCC v. Fox Television Stations, 556 U.S. 502 (2009) (deference to agency policy changes and reasoned explanation)
- CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009) (logical outgrowth test for notice-and-comment)
- Cablevision Sys. Corp. v. FCC, 597 F.3d 1306 (D.C. Cir. 2010) (deference to FCC technical and predictive judgments)