Motion Picture Ass'n of America, Inc. v. Federal Communications Commission

Brown, 117, 114 511 U.S. Ins. Co. v. Title OF ASSOCIATION PICTURE MOTION (per L.Ed.2d 33

S.Ct. al., AMERICA, INC., Petitioners. et curiam) deciding, (raising, without forbids process due of whether question v. judgment against enforcing a class-action COM- COMMUNICATIONS FEDERAL bring her who wishes to plaintiff an absent States United MISSION damages, money individual lawsuit own America, Respondents. as a properly certified was where class action). Second, con- class no-opt-out Access Television Video National raised Shutts concerns stitutional al., Coalition, Intervenors. et un- the concerns implicate also Ticor the 1966 Nos. 01-1155. drafters of Rule 23. The derlying amendments, the rule gave rise to which Appeals, States Court United concerned today, know it were as we Circuit. of Columbia District actions and the binding effect of class par- required process protections due 6, 2002. Argued Sept. R. P. 23 adviso- Crv. ties to be bound. Fed. 8, 2002. Decided Nov. (noting the need notes ry committee fairness, particularly procedural “assure class, members of the notice to

giving related some may in turn be

which judgment extension

instances class”). rule to They drafted the actions maintained to that “all class

clarify judgments will result

the end as such the court finds to be

including those whom class, or not the whether

members Id. to the class.”

judgment is favorable these is- importance of

Because of the 23 and interpretation of Rule

sues to the this case are implications for

because their unbriefed, to de- think it best

entirely we 23(f) our Rule discretion

cline to exercise arguments Department’s

to consider briefing full Following time. issued revised order

district court court, remains Department

by that review, appellate either

free to seek 23(f) petition or otherwise.

another petition is denied. Department’s

So ordered.

Robert argued Corn-Revere the cause petitioner Motion Picture Association America, Inc., et al. With him on the briefs was Ronald G. London. Daniel F. argued Goldstein the cause and filed the petitioner briefs for National Federation of the Blind. Pash, Jr., Counsel, Grey

C. Federal Commission, argued Communications respondents. cause for him With on the Counsel, brief were E. Mago, Jane General Daniel M. Armstrong, Associate General Counsel, Lewis, M. Attorney, Jacob Department United States of Justice. O’Sullivan, Counsel, Catherine G. Chief Garrison, Nancy Attorney, C. United Justice, Department ap- States entered pearances. argued

Donald J. Evans the cause for intervenors. him on the brief were With Ward, Noreika, Liliana E. Keith A. A. Long, Robert Jr. EDWARDS, HENDERSON,

Before: ROGERS, Judges. Circuit - merely defined with video ing by filed Circuit the Court Opinion required description” T. EDWARDS. Judge HARRY “video Congress. report prepare filed Circuit Concurring opinion 613(f)-(g). Unlike the LeCRAFT Judge KAREN § 713 did not captioning, covering closed HENDERSON. adopt regula- to authorize Commission EDWARDS, Judge: T. Circuit HARRY descriptions. implementing tions 1996, of Act The Telecommunications on video de releasing report a After (“the 56 110 Stat. No. Pub.L. it was announced scription, the FCC Act”), new added Telecommunications rules commentary proposed seeking acces- covering programming visions Implemen description. mandating video Act of sibility to the Communications Pro Description Video Video Act”). tation (“the The seq. 151 et § 47 U.S.C. of of Rulemak Proposed Notice gramming, § 713 of the codified in provisions, new of Act, spe- 19,845, § 47 1999 1044393 U.S.C. 14 WL ing, Communications F.C.C.R. and captioning” “closed cifically (1999) (“Notice Rulemaking”). dealt Proposed can technologies that description” “video mandating adopted then The FCC to enhance television employed be with video television visually impaired hearing and services for Descrip- Implementation Video tions. captioning displays individuals. Closed and Programming, Report tion Video signals as television portion the audio 15,230, Order, 2000 WL 15 F.C.C.R. and can be the screen displayed on words Order”). (“Report and discretion. at a viewer’s activated of America Association Motion Picture aof descriptions aural descriptions provide (“MPAA”) National Federation and elements key visual program’s television (“NFB”) this petitioned Blind both in a (such a person movement of as the regula- agency’s of the court for review scene) during pauses are inserted descriptions. mandating tions descriptions dialogue. Video program regulations the new contends that MPAA they re- content because change program they are down should struck convey script to of new quire the creation they pre- are by § 1 and not authorized details, captions closed whereas program 47 U.S.C. § the Act. See 713 of transcription cluded a verbatim present regu- spoken words. program’s §§ contends NFB and arbitrary rejected as lations should technologies treated two to as- the FCC failed capricious, because the Tele- differently passed when it quite persons ac- Act, visually impaired § to added whether which sess communications 713(a) Act. description, Section as the Communications need video tually want or complete to required the Commission articula- requiring spoken to rules opposed report inquiry and captioning closed text. of on-screen days of the within 180 findings Congress terms, provide Act does not By its 613(a). § Sec- passage. U.S.C. Act’s authority to enact with the the FCC (c) 713(b) required Commis- tions the FCC’s Contrary rules. regula- closed prescribe captioning sion otherwise, § arguments suggesting deadlines. compliance tions established un- give the FCC § does not U.S.C. 713(d) 613(b)-(c). Sections fit with act as it authority to sees limited (e) from the exemptions established trans- aspects all television respect rules. scope of missions, regard without 613(d)-(e). contrast, subsections - hold that We regulations. proposed 713(f) deal- the sole subsections (g) where, case, promul- gress; as it did not mandate any implementa- regulations significantly gates impli- 613(f). tion of descriptions. visual Id. content, § 1 cate is not source The initial preceding House bill the en authority. point Because the FCC can actment of 713 would have required the statutory to no other authority, the video FCC to adopt rules. See regulations must be vacated. Order, Report 15,274 15 F.C.C.R. at n. Accordingly, petition MPAA’s for review is (Powell, dissenting) (noting that H.R. hereby granted. petition NFB’s for re- “shall, provided that the FCC moot, view is dismissed as because the within 1 year of enactment of the [video object they which will be programming section, accessibility] pre vacated judgment the court’s scribe such regulations as necessary are in this case. ensure that all programming video fully accessible to individuals with disabilities BaCkground I. through provision the of closed captioning The Telecommunications Act added to service and description” (emphases the Communications Act pro- new video language bracketed in original)). gramming accessibility provisions involv- However, the bill was amended in commit ing closed provide tee to a discretionary grant of § tion. 47 U.S.C. description Video authority rather than mandate that is defined in the statute to include “the provide FCC video description. The new insertion of audio descriptions narrated of that, language provided “Hollowing the key program’s television visual elements completion of such inquiry, the Commis pauses into natural between the program’s regulation sion adopt it deems [sic] § dialogue.” 613(g). Id. Video descrip- necessary promote the accessibility usually tions are transmitted over a sec- programming to persons with visual ondary channel, audio programming a sub- impairments.” Amendment No. 8 to H.R. carrier that allows video distributors to (Moorhead) (Mar. 16, 1994), reprinted soundtracks, transmit additional such as (“J.A.”) in Joint Appendix 237. This new foreign language programming. Closed version of passed the bill House Captioning and Video Description Vid- 204(f), § 1995. H.R. Cong. 104th Programming, 19,- eo Report, F.C.C.R. (1st Sess.1995), reprinted in J.A. 254-59. 214, 19,221, (“Vid- 1996 WL 420237 bill, however, corresponding The Senate Accessibility eo Report’’). only directed the report FCC to to Con- There is a marked difference between gress description: about video It neither Congress’ treatment of closed captioning description mandated video provided nor § and video 713 of the Act. discretionary authority FCC with provision required The new the FCC to adopt § such rules. S. 104th complete inquiry into captioning, (1st Sess.1995), Cong. reprinted in J.A. report results to within 251-53. The conference committee days passage. of the Act’s version, adopted abandoning the Senate 613(a). affirmatively It also required language providing House the FCC prescribe regulations that the FCC for the discretionary authority. Congress implementation of closed captioning, id. passed this version bill and the 613(b), compliance and established dead- signed President it into law. 613(c). action,- lines for that id. In con- trast, § only required that After the enactment of FCC prepare a description report report for Con- issued the that the Act mandated. the Blind’s submis- for course is American Council “the best stated that report

The sion, 250 e- more than collect information which contained to continue descrip of video for the rules. deployment support mails and letters of monitor of standards development and the Id. likely to that are technologies new video rules re- The FCC’s video description.” availability affect television broadcasters commercial quire Report, 11 F.C.C.R. Accessibility Video net- top four commercial affiliated with this re 19,271. supplemented The FCC NBC) Fox, (ABC, CBS, works Annual Assess report, port with second description per fifty hours of video vide Competition the Status ment chil- prime time or during either quarter Pro Delivery Markets C.F.R. programming. dren’s 1034, 13 F.C.C.R. Report, gramming, 79.3(b)(1). require also multi- (1998). Then, in WL distributors channel video commentary seeking that it was announced 50,000 or more subscribers that serve mandate vid rules that would proposed fifty per hours of provide Proposed Rule Notice description. eo time or children’s during prime quarter 19,845. The Com- making, F.C.C.R. that carries each channel programming on alia, commentary, inter sought mission nonbroadcast networks. top five one possessed statuto- whether the FCC about 79.3(b)(3). §Id. rules. Id. at to enact such authority ry ¶¶ 19,857-59 34-39. Furchtgott- Commissioners Powell description the visual from Roth dissented comments, the FCC reviewing the After order, that they did not believe because certain requiring adopt to rules 3-2 voted Act authorized the the Communications certain supplement programmers rules. Id. description descriptions. adopt See FCC 15,230. Order, 15,268-69 dissenting); (Furchtgott-Roth, 15 F.C.C.R. Report and at it the possessed (Powell, 15,272-76 dissenting). The FCC concluded rules adopt these statutory sought reconsideration parties Various Act. 1 of the pursuant Order, on the primarily of the FCC’s gives the § 151. Section the FCC’s the exceeded rules ground foreign com- “interstate Reconsidera- Petition authority. legal for wire and radio by in communication merce 99-339, MPAA, Docket No. MM tion available, possible, so far as as to make so 330-38; 2000, 11, in J.A. reprinted Oct. States.... of the United people all Reconsideration Petition PaHial Nation-wide, efficient, and world- rapid, by the National Submitted Clarification ser- and radio communication wide wire Broadcasters, Docket MM Association of § 151. The FCC 47 U.S.C. vice....” 11, 2000, 99-339, in J.A. reprinted No. Oct. rejected argument majority also 339-54; Reconsideration Petition 613, 713, precluded Association, Cable Television National mandating video from agency 11, 2000, 99-339, re- No. Oct. MM Docket only autho- provision merely denied 355-74. The FCC in J.A. printed inquiry. Re- to conduct rized the FCC reconsideration, it refine although did cer- 15,252-54 Order, at 15 F.C.C.R. port and issues related implementation tain ¶¶ found that Finally, 57-61. Video De- Implementation new rules. importance “the demonstrated record Programming, Memo- scription with visual persons ¶ Order on Reconsid- Opinion and randum 15,232 4. The FCC Id. at disabilities.” 1251, eration, 2001 WL 43382 16 F.C.C.R. conclusion on this primarily based issued, (2001), 16,618 66 Fed.Reg. ity.” 226-27, erratum at U.S. 121 S.Ct. at 2170- 2001). (Mar. 27, and NFB MPAA then 71. The Court Mead also makes it clear petitions filed for review. that, even if an agency has acted within its delegated authority, no Chevron deference Analysis

II. due is unless the agency’s action has the “force of law.” Id. at 121 S.Ct. at A. Standard Review In deciding whether to defer to the case, In Act, the principal question

FCC’s construction we adhere is whether to the tests the Supreme “delegated authority” enunciated Court Chevron Inc. v. the FCC to promulgate U.S.A. Natural visual description Council, Inc., Resources 467 U.S. regulations. Absent such authority, we Defense 104 S.Ct. 81 L.Ed.2d 694 need not decide whether the regulations Corp., and United States v. Mead 533 U.S. are otherwise “reasonable.” An 121 S.Ct. 150 L.Ed.2d 292 may not promulgate regu- even reasonable (2001). Chevron, that, the Court held lations that claim a force of law without clear, “[i]f the intent of is delegated authority Congress. from matter; court, the end of the for the as agency, give well as the must effect to Statutory B. The Authority FCC Lacks unambiguously expressed intent of Con Adopt Description the Video gress.” 467 U.S. at at S.Ct. Rules 2781. This is so-called Step “Chevron MPAA argues that precludes One” review. If Congress “has not direct adoption of mandating

ly issue, precise question” addressed the tion and that 1 does not otherwise au- and the agency has acted to an thorize the FCC to adopt express implicit delegation or authority, rules. largely agree, We although we rest agency’s interpretation of the statute is on principally point. the latter entitled to deference long so as it is “rea sonable” and not otherwise “arbitrary, ca 1. Section 713 pricious, manifestly or contrary to the stat 713, There is no doubt that 47 843-44, ute.” Id. at 104 S.Ct. at 2782. terms, its pro does not This is Step so-called “Chevron Two” re vide the authority FCC with the to enact situation, view. In either agency’s in rules, video description and the FCC does terpretation of the statute is not entitled to suggest not that it ques does. The harder delegation deference absent a provision tion is whether effectively Congress from to in the areas at mandating the FCC bars video de from Ry. issue. See Labor Executives Ass’n v. scription. Bd., Nat’l Mediation 29 F.3d 671 (D.C.Cir.1994) (en banc) (Chevron “defer Statutory provisions pari mate ence is warranted when only Congress has normally ria are together to construed gap left a for the fill agency pursuant to Erlenbaugh discern their meaning. v. an express implied ‘delegation or of au States, 239, 244, United 93 U.S. S.Ct. ”) thority Chevron, agency.’ to the (quoting 477, 480, (1972) 34 L.Ed.2d 446 (noting 2781-83). 467 U.S. at 104 S.Ct. at that the rule that pari statutes in materia be together should construed “is ...

Mead reinforces Chevron’s com logical principle mand that extension of the that indi deference an agency’s inter pretation only single of a statute due vidual sections of a when the statute should “delegated acts together”); author- construed Holyoke Water provision through fully accessible FERC, F.2d v.

Power Co. ...; (“The captions are closed (D.C.Cir.1986) sections three maxim- or owners together.”); providers gramming must be read materia pari States, program- F.2d Sec., accessibility of video Inc. v. United ize the FAIC (“[T]hese (D.C.Cir.1985) prior two stat or exhibited published ming first materia and must pari are in date of such utes effective Here, when sub together.”). cap- of closed provision construed through - (f) all (b), § 713 (a), sections .... tions accessi programming to video addressed 613(b). The difference - strong together, construed bility are sections in these language employed can be made argument (f) is not subsection it clear that makes the Commission to authorize meant not for video a mandate provide intended dissenting The description. mandate video (f) Subsection description requirements. Powell power FCC Chairman opinion captioning closed parallels neither point. See fully demonstrates (b) nor in subsection mandate contained (Powell, dissenting). 15,274-76 F.C.C.R. the FCC provided suggests (f) (a) merely call for Subsections adopt discretionary with studies on to undertake rules. respec- description, and video posi- whether need not decide We (f), which deals tively. Subsection mandating agency rules tively forecloses provides: description, Rather, find that we description. date of enact- 6 months after Within adopt the FCC to not does authorize Act of the Telecommunications ment of that, when cou- also find rules. We such 1996], the Com- Feb. 1996 [enacted authority under with the absence pled inquiry mission shall commence (discussed below), clearly sup- § 713 descriptions the use of video examine FCC is the conclusion ports in order to ensure programming description. mandating video from barred accessibility 1,§ question whether now turn We impairments, with visual persons Act, autho- provision or other findings. Congress on report to to mandate video rizes appro- report shall assess Commission’s description. phas- and schedules priate methods into the market- descriptions ing video the Communications 2. Section standards quality and place, technical Act ofim definition descriptions, a for video descrip- ar Order Report for which The FCC’s and mandate other technical apply, would and the FCC’s gues tions that the Commission the com and issues that legal description is derived from Act, appropriate. § deems of 1 of the Communications bination Act, 2(a) § of the § 613(f). contrast, U.S.C. § In subsection 47 U.S.C. 152(a) provi (stating “[t]he that (b) that affirmatively mandates all inter apply Act shall of this sions such prescribe shall by wire foreign communication and state imple- necessary to as are regulations engaged persons ... to all and or radio regulations section. Such ment - communi States such the United within program- shall ensure 4(i) Act, 47 U.S.C. cation”), § of the after or exhibited ming published first 154(i) Commission (stating “[t]he regulations such date of the effective acts, all make scribe it and may perform any style and such choose what or what contrast, regulations, pace. rules and issue such or- In is a ders, Act, may straight not inconsistent with this as dialogue translation of into text.” necessary Order, of its func- 15,278 the execution Report and 15 F.C.C.R. at 303(r) Act, tions”), (Powell, of the dissenting). Ultimately, video de- 303(r) (stating that “the Commission scriptions require a writer to amend a convenience, time, public from time to as fill in script pauses audio that were not interest, ... necessity requires or shall originally intended to be filled. only Not pre- such rules and [m]ake producers will and script writers be re- conditions, scribe such restrictions and not describe, quired to decide on what to how law, may as necessary inconsistent it, style characterize and the and pace Act”). carry provisions out the of this descriptions, but script writers argument, At oral counsel for the FCC will have to describe subtleties move- essentially conceded that if the agency ments mood that not translate §in 1 then cannot find its easily. many And movements a scene description regulations must be va- admit of several interpretations, or their by the agree. cated court. We meaning is purposely vague left to en- program short, hance the content. it is majority opinion argues The FCC’s clear that the implementation of video de- 1 authorizes the to mandate vid- scriptions invariably subjec- would entail description, eo because tive and artistic judgments that concern ... authorized the Commis- program and affect content. The FCC sion to make all a available to Americans even acknowledged has that the creation service, radio and wire communication script creativity of this second “raises promote safety and to and life through issues.” Video Accessibility Report, 11 service, such make regula- and to such 19,221. at F.C.C.R. These effects are not mandate, carry tions to out that that are insignificant, and there can be no doubt public consistent with the interest and regulation the result is a direct not inconsistent with other content. Act or other law. 15,252. very frail arguments contrary F.C.C.R. This is The FCC’s argument, in no small it part entirely unpersuasive. Report com- are See Order, 15,254-56. pletely ignores First, the fact that video 15 F.C.C.R. at regulations significantly implicate pro- wrong the Commission is in its claim that gram content. descriptions are the same as closed captioning. simple transcript, One is a

There is no doubt that the video de- precise repetition spoken words. scription regulate programming con- requires interpretation The other tent. regulation is not a They visual scenes. are not the same. only of television transmission that inci- Second, the FCC’s statement that video dentally and minimally program affects descriptions are “not to content” related is content; it a significant regu- is direct and 15,255. specious. Id. at FCC’s counsel lation program content. The rules re- position would not even endorse that quire programmers to create a second argument. Requiring oral someone to script. As Chairman Powell noted his dissent, script add a is relat- change program “video a or description is creative requires producer program’s Finally, work. It to evaluate ed to the content. the actors, a program, script, description reg- write a select FCC claims that the video describe, 15,- decide what to decide how to de- ulations are “content-neutral.” Id. at 1133, Broadcasting, 65 BROOK.L.Rev. issue, decide that need not 254-55. We fa- how limited (explaining question 1136-37 it is irrelevant. because the passage influenced Communi- § 1 the FCC cilities provides face is whether we 1934); Broad. see also Nat’l cations Act of authority promulgate with 190, States, 216, 63 319 U.S. significantly regulate Co. v. United (1943) (“The 997, 1009, the content-neutrality of L.Ed. 1344 content. The S.Ct. inquiry to the limited and therefore rules is irrelevant facilities of radio are delegated authority. left to wasteful they FCC’s cannot be precious; inter- public use without detriment argument, counsel for During oral est.”). 1, delegated au- Under acknowledged that it was not self- FCC expand radio thority to the FCC is that the FCC evident from the statute transmissions, would be they so that wire content regulate program authorized See, e.g., all U.S. citizens. available to hesitation was 1. Counsel’s Corp., States v. Midwest United merely § 1 authorizes placed, well because 1870, 667-68, 92 S.Ct. U.S. of the people that all to ensure (1972) (“[T]he question critical L.Ed.2d 390 discrimination, States, have without United has rea- ... is whether the Commission and radio communication access to wire origination sonably determined other- 1 does not transmissions. Section long- ‘further the achievement rule will regulate pro- wise authorize the FCC goals in the field of regulatory established content, description reg- gram as the video broadcasting by increasing television § 1 the terms of clearly ulations do. Both community for self-ex- number of outlets it focus on the amplifying and the case law augmenting public’s pression and accessibility power promote FCC’s of ser- types programs choice of transmission, not to universality vices....’”) (citation omitted); United content. Neither regulate program Co., 392 Cable U.S. States v. Southwestern court cite nor its brief to this FCC’s Order 2002-03, 88 S.Ct. To suggest otherwise. (1968) (“[I]t precisely L.Ed.2d 1001 was programming, in the area of maintain, Congress wished to find its FCC must con- administrative through appropriate See, e.g., other than trol, radio dynamic aspects grip of cable channels (governing designation upon it conferred transmission educational, governmental or public, jurisdiction and a unified use). (citations, footnotes, and authority.”) broad imple- Act was The Communications omitted). Section quotations internal consolidating purpose of mented for the not address the content does in a authority over communications federal accessibility is respect to which grams com- adequate “an single agency to assure words, the FCC’s to be ensured. other country.” system munication broad, but not with- authority under S.Rep. (1934); 73-830, at No. see also limits. out H.R.Rep. (1934). No. at 3-4 Given this court The cases cited to of communications the limited distribution otherwise. These cases do not hold 1934, mandate to serve facilities l’s See, content. do not relate is a “all of the United States” people FCC, F.2d 1173 Video v. e.g., United availability of geographic reference to the (FCC’s (D.C.Cir.1989) exclu- Note, “syndicated Mi- Aguilar, Michael J. service. See content-neutral, sivity” rules found Step A in the Return to cro Radio: Small arbitrary capricious, Localism, not otherwise Diversity, Competitiveness

805 Copyright of the Act of Br. of Respondent and not violative at 35-41. To avoid 1984; § 1 the Cable Act of potential issues, 1976 or First Amendment implicated); Act not Ru- Communications very general provisions have not FCC, ral Tel. v. 838 F.2d Coalition go been construed to so far as to authorize (“As (D.C.Cir.1988) 1315 Universal regulate the FCC to program content. proposed Fund Service was order to Rather, Congress has been scrupulously objective making further the communi- clear when it intends delegate cation service available to all Americans at to the FCC to address areas significantly charges, reasonable was with- proposal implicating program E.g., content. 18 statutory authority. Commission’s (“Whoever U.S.C. 1464 utters ob- recognized previously have that uni- We scene, indecent, profane or language by important objec- versal service is an means of radio communication shall be tive.”); North Am. Telecomm. Ass’n v. fined under this title or imprisoned not (7th Cir.1985) (action FCC, 772 F.2d 1282 years, both.”); more than two or for review of FCC to con- relating orders § 315 (governing provision of broadcast upon major ditions which telecommunica- office); time to public candidates for 47 corporation’s regional operating tions com- (“No U.S.C. 399 noncommercial edu- could panies telephone equipment enter cational broadcasting may station support business); FCC, GTE Serv. v. 474 Corp. oppose any or candidate for political of- (2d Cir.1973) (regulations F.2d fice.”). And has imposed limita- prescribing conditions under which com- regulations tions on implicating program may processing mon carriers sell data ser- 544(f) content. See U.S.C. (providing vices, designed to insure “carriers “[a]ny Federal not provide efficient and economic service to impose requirements regarding provi- public”). services, sion or content of cable except as §why One of the reasons 1 has not been title”); expressly provided in this see also construed to allow regulate the FCC to (providing that the FCC reg- content is because such does not possess power censorship, invariably ulations raise First Amendment regulation and “no or condition shall be FCC, E.g., issues. Turner Sys. Broad. v. promulgated or fixed 622, 651, 2445, 2464, 512 U.S. 114 S.Ct. right which shall interfere with the of free (1994) (“[0]ur L.Ed.2d 497 cases have rec- communication”). speech by means of radio ognized regulation that Government over It is therefore clear that not the is the content of broadcasting must provision in the Act from which the FCC narrow, and that broadcast licensees can delegated authority find must retain abundant discretion over programming. the content of broadcast choices.”); gramming Columbia Broad. beyond § The FCC must look 1 to find Comm., Sys., Inc. v. Democratic Nat’l significantly 94, 126, 2080, 2098, U.S. 93 S.Ct. implicate program content. (describing L.Ed.2d “the risk of position The FCC’s to be that the seems enlargement an of Government control adoption mandating of rules over the content of broadcast discussion of permissible did public “problem issues” as a of critical expressly not possibility. foreclose the importance to regulation broadcast and the Amendment”). entirely position. This is an untenable See Indeed, parties First Executives’, Ry. Labor 29 F.3d at 671 argued this case have over whether the (“Were infringe presume delegation free courts to speech 39-43; precepts. See Br. of Petitioner at power express withholding absent “public act in the inter- cannot virtually The FCC enjoy agencies would power, such have agency out of if does not otherwise plainly a result est” the hegemony, limitless likely with quite regula- the keeping authority promulgate with Chevron to well.”) in (emphasis as public in the the Constitution action tions at issue. An Slater, v. See also Halverson original). “carry taken to necessarily not interest is (D.C.Cir.1997) (quoting 129 F.3d Act,” it nor provisions is out 671); Executives, at 29 F.3d Ry. Labor Act. by the The necessarily authorized Oil, Int’l Union Atomic Workers Chem. & delegated to au- pursuant act FCC must (D.C.Cir.1995) NLRB, v. 46 F.3d inquiry interest” any “public thority before EPA, Corp. v. (same); Ethyl see also 303(r). § This of course is made under (D.C.Cir.1995) (“We 1053, 1060 refuse F.3d means, at counsel conceded oral as FCC power of delegation presume to description argument, express- has not merely if justified only the FCC had arguably are Res. ly power.”); such Natural withheld § 1 to of the Act. authority to act F.2d Reilly, v. Council Def. 4(i), suggestion The FCC’s (“ (D.C.Cir.1993) in- only legislative ‘[I]t is more, agency gives without that enti- delegate to such tent disputed rules cannot promulgate statutory its to advance own tles scrutiny. Chairman Powell’s withstand under the deferen- construction for review ”) says it all: provision this (quoting discussion of prong second of tial Chevron.’ Housing & Urban City Dep’t v. Kansas important emphasize It sec- is (D.C.Cir.1991)) Dev., 923 F.2d 191-92 4(i) not a stand-alone basis is (alteration original). in be read iso- authority and cannot “necessary akin to a lation. It is more Congress enacted the 4(i)’s au- Section provisions proper” clause. description and video entertaining “reasonably ancillary” together. originally thority After be must au- And, the FCC with possibility providing by its express provisions. other rules, thority adopt terms, that au- exercise of express our to do so. This silence declined thority cannot be “inconsistent” with ambiguity as result- surely cannot be read The of the Act. reason provisions other delegated authority to the FCC ing Were an plain: these limitations regulations. disputed promulgate carte blanche under agency afforded irrespective provision, such a broad by Statutory Provisions Cited S. Other that did acts subsequent congressional action, it prohibit would squarely not brief The Commission’s regulatory expand greatly able argu opaque advances the somewhat court reach. rules are the video ment that 15,276 (Powell, dissenting). 15 F.C.C.R. policy a Valid communications “obviously agree. We Respon interest.” goal’ public really nothing to be Finally, there is said thus at 26. Commission dent’s Br. 152(a), 2(a), which about justified are claims support also cited the FCC was 303(r), permits which the FCC under regulations. This the video public interest “as own, support the not, on its provision does necessary carry out nor the FCC’s Order regulations. Neither 303(r). But this Act.” 47 U.S.C. [the] on behalf of argument counsel’s carry simply cannot statutory provision argument. suggested otherwise. weight of the Commission’s short, point present the FCC can to no statu- regulatory system, those tory provision gives au- concerns are without foundation. description to mandate thority visual rules. Turner Sys., Broad. 512 U.S. at salutary. be highly The rules But S.Ct. at 2464. Accordingly, for the rea- that is not the issue before this court and given sons opinion, this we hereby grant judgment question. we offer no on the the petition MPAA, for review by filed is determinative here What is the FCC reverse and vacate the Commission’s Or- delegated authority acted without from der insofar as it requires broadcasters to Congress. Section 1 does not furnish the implement video description. authority sought, regulations because the significantly implicate program content So ordered. and the can cite no FCC which a court has upheld agency action HENDERSON, KAREN LeCRAFT program under where content atwas Judge, concurring: Circuit the core of at it issue. And disputed does not matter rules I believe that section 713 of the Commu- arguably here are “content-neutral.” The Act, nications plainly does is that the point program rules are about not authorize the to promulgate content and therefore can find no authori- and, reason, rules for that I §in zation fully concur in portion of the majority Finally, any if there were ques- serious opinion that so I agree, holds. do not case, proper tion about result all however, that the by doubt is resolved reference to 713. constitute “a direct and significant regula- 713(f), §In Congress authorized and or- program Maj. tion of Op. content.” at 803. dered the Commission to 'produce a re- I fail to see how need - more, port nothing nothing less. The consist of anything more than spoken not, statute captioning, does as with closed so, stage directions. If description, (or instruct permit) even the FCC to view, in my least regulate does not mulgate regulations mandating video de- program content. I agree While that sec- scription. Once the complet- Commission Act, of the Communications ed preparing report the task of provide does not description, delegated authority to promulgate the video de- subject on the ended. rules, scription it is not because the rules content; view, my III. Conclusion neither section nor of the other [Gjiven the minimal extent to which the on, of the Act the FCC relies FCC and actually influence independently delegates authority that by offered broadcast plainly section 713 withholds. stations, it would difficult to conclude enacted [video in an effort to tion] exercise content

control.... In a regime where Con-

gress or the FCC exercised more intru-

sive control over the content of broad-

cast programming, argument similar argument [the raised the Commis- might carry greater weight.

sion] But

Case Details

Case Name: Motion Picture Ass'n of America, Inc. v. Federal Communications Commission

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 8, 2002

Citation: 309 F.3d 796

Docket Number: 01-1149, 01-1155

Court Abbreviation: D.C. Cir.