Office of Communication of the United Church of Christ v. Federal Communications Commission and the United States of America

original dent to find that evidence hearsay excep-

source satisfies one of the OFFICE OF COMMUNICATION OF tions, excep- CHRIST, such as the business records UNITED CHURCH OF al., Petitioners, et exception. tion or the excited utterances Therefore, the statement that Mrs. Ras- soulpour running was is inadmissible hear- FEDERAL COMMUNICATIONS COM- say. Admitting this statement was not MISSION and the United States of appellees’

harmless: the statement was America, Respondents. only regarding evidence the cause of the No. 86-1278. accident. United Appeals, States Court of Appellants argue also that the statement District of Columbia Circuit. should not have been admitted because it is Argued April 1987. They unreliable. focus on the fact that at Aug. Decided deposition trial, years three before Free- ny he testified that could not remember reported

who to him Rassoulpour that Mrs. running.

had been Because the statement hearsay,

was inadmissible the court need challenge.

not reach this Ebling

C. Report

WMATA concedes that failure to Ebling report harmless,

disclose the is not

the case should be remanded for a new argues

trial. WMATA that the nondisclo

sure is report harmless because the con evidence, i.e.,

tains cumulative merely

reports Rassoulpour’s Mrs. version of the However, report

accident. very im

portant because it Ebling shows that did

not witness the accident report and that his

to Freeny may have been based on inadmis hearsay. report

sible also discloses potential eyewitness name of a about appellants

whom did not know.

III. Conclusion correctly give

The trial court refused to jury ipsa loquitur a res instruction.

However, Freeny report was not admis-

sible. WMATA’s failure disclose the

Ebling report According- is not harmless.

ly, part, part, we AFFIRM in REVERSE

and REMAND.

So Ordered. Lampert,

Donna with whom Henry Gel- ler, D.C., Washington, was on the brief for petitioners. Armstrong,

Daniel M. Associate General Counsel, F.C.C., Smith, with whom D. Jack Counsel, Pash, Jr., General Grey C. Coun sel, F.C.C., Powers, John J. III and Donald Clark, Justice, Attys., Dept. S. Washing ton, D.C., were on the respon brief for dents. WALD, Judge,

Before Chief BORK, Judges. MIKVA and Circuit Opinion for the Court filed Judge Circuit BORK.

Dissenting opinion filed Chief Judge WALD.

BORK, Judge: Circuit organizations, Petitioners are represent- ing segments various of the radio and tele- audience, vision that raise interest through issues involvement the broad- licensing process cast before the Federal They peti- Communications Commission. tion this court to review the Commission’s Tender Offers and Contests, (P Proxy Rad.Reg.2d F) & (1986). Statement asserts may temporarily that the Commission ex- empt transfers of communications licenses resulting from proxy tender offers and fights “long-term” review that generally license transfers must receive un- Act, der the Communications 47 U.S.C. (1982). hold that We § Policy Statement not munications Act for license appli- transfer cations filed as a judicial consideration and dismiss result ripe for offers. power It found this in section petition for review.

Act, 309(f) (1982), 47 U.S.C. per- mits the Commission to authorize a license I. application for a limited long- time without A. form review the Commission “finds that extraordinary there are circumstances re- the Communica- application An under quiring temporary operations public in the a communications li- tions Act to transfer delay interest and that in the institution of cense, a in connection with substantial temporary operations such seriously change ownership or control of a license in public prejudice the interest.”1 Policy holder, public applica- notice of the requires Statement, (P F) Rad.Reg.2d 59 & at 1568- tion, waiting thirty-day period, minimum a suggested 78. The Commission further a petitions opportunity for others to file to likely Special structure for Temporary the deny applicant and for the application the Authority (“STA”) proposed grant to un- reply, hearing any on to and a substantial der section in the tender offer set- material of fact. 47 U.S.C. and ting: voting the trustee of an interim trust 309, 310(d)(1982). In the Commission’s §§ would, subject limitations, to various hold view, procedural scheme is ill-suited to this and target vote shares of the licensee ten- arising application a license transfer from a bidder, dered to the as well as the oversee control of the attempt acquire contested to target’s operations, pending long-form re- corporate In a contest for license-holder. view of the share transfer from trustee to control, days corporate speed, measured in bidder. Id. at 1562-68. hours, typically is essential to success. relatively time-consuming procedures Policy The The Commission concluded the by Act mandated the Communications for Statement as follows: handicap license are thus a transfers to Finally, Policy this is Statement in- corporate bidders for control. To address provide for to a tended framework problem, the Commission solicited com- regulatory of tender treatment offers through Inquiry, ments a Notice of FCC proxy involving and contests Commission 20, 1985), (Aug. Appendix No. 85-349 Joint companies controlling licensees or with (“J.A.”) provided at which the Commis- interests in Commission licensees. The opportunity poli- sion “the to consider our Statement, adoption Policy of this how- extraordinary press cies without the ever, [of is not intended to foreclose any [particular contested bid for time] Commission, particular proceed- Tender Of- control].” ing, adopting ap- different (P Contests, Proxy Rad.Reg.2d fers and proach specific in warranted circum- if F) (1986). & result of this stances. consideration was Statement. (P F) Rad.Reg.2d (emphasis & at 1584 Statement, added). Acqui- In the the Commission See also In re MacFadden 545, 547, power postpone long- Corp., claimed sition 104 F.C.C.2d (1986) process required by (Policy form “reinforced the Com- therefor, 309(f) (1982) by 1. 47 U.S.C. its states: nied a statement of reasons permit temporary operations peri- such for a application subject When an subsection (b) filed, exceeding days, upon making of this has been the Commis- section od sion, notwithstanding requirements findings may temporary au- like extend such may, grant such subsection application of such periods for not to ex- thorization additional is authorized otherwise law days. any grant such for a ceed 180 When extraordinary and if it finds that there are made, temporary the Com- authorization requiring temporary opera- give expeditious treatment mission shall public delay tions in interest and that any timely petition deny applica- such filed temporary operations the institution of such rehearing any petition of such tion and to interest, seriously prejudice public would grant grant filed under section 405 of this title. authorization, temporary accompa- transfer; (2) adju- target’s operations rulings refined the [Commission’s] intended as a dicatory superlative, cases” and “was have been and the fu- bidder’s Commission guideline” operations general promise materially ture to be might re- “specific cases “recognized” quality. grant lower Commission’s flexibility”). quire degree 309(f)by of an under section its terms exempt petition deny permit- B. long-form proceeding; ted in the sub- tender offers contend Petitioners sequent long-form proceeding not the tar- “extraordinary circumstances re- are not get but the trustee is the licensee. Since public quiring temporary operations 310(d) expressly prohib- of the Act section interest,” meaning of section within proceeding its reference in a transfer 309(f). They also claim that what “would operations by any person other than the prejudice interest” is seriously licensee, proposed licensee or see “delay in the institution of such not the Listeners Guild v. WNCN temporary operations” proce- that the STA (D.C.Cir.1979)(en banc), 852 n. 37 attempt avoids but the to purportedly dure proposed procedure there- Commission’s delay setting in the tender offer avoid impossible any fore renders reference to through procedure the STA itself. target’s operations petition to According petitioners, to neither the lan- deny. Petitioners also claim that the trust- legislative history of section guage management nor target ee’s “caretaker” of the 309(f)permits the to character- Commission under the could STA have adverse effects “extraordinary ize tender offers as circum- programming, on its and that the difficul- requiring temporary operations in stances unwinding ties of a transaction once the interest” because tender offers granted unduly preju- STA has been will “extraordinary” numerically and do are not granting dice the Commission favor of “operations” pursuant not affect to a li- proposal long-form approval. the bidder’s petitioners primarily argue cense. But arrangement proposed

that the in the II. pub- prejudice Statement would do not address the merits of We by frustrating petitioners’ legal- lic interest petitioners’ contentions because we find 309(d) ly protected ability under sections petition ripe for that their is not review.2 310(d) bring petition of the Act to to ripeness parts: has two main The test deny target the license transfer from the judicial fitness of the issues for deci “the license holder to the bidder reference to parties sion and the of target’s past operations. See Califor- withholding court consideration.” Abbott Physically Handicapped, nia Ass’n Inc. 136, Gardner, 387 FCC, 823, (D.C.Cir.1985) Laboratories v. U.S. v. 778 F.2d 830-31 149, 1507, 1515, (Wald, J., 87 S.Ct. 18 L.Ed.2d 681 dissenting). petition Such a to (1967). challenge to the Petitioners’ FCC’s deny would arise in one of two situations: deficient, (1) part satisfies neither target’s operations were target’s right such that the its this test.3 We first address the fitness of to license effectively lapsed nothing has and it the issues for decision. has Although petition- considering 2. the treatment of the Commission as well as addition offers, challenge the Commission also determined petitioners’ ers take the view that is typically that it would in the ripe, power this court has the to raise the issue proxy contests that will not result in a handle own, on its even when the before the change corporate through control substantial sufficiently ripe court to be an article III expedited procedures approved by the use of the controversy” simply appears "case or but to fail Communications, Inc. v. this court in Storer See, prudential ripeness. e.g., criteria for FCC, (D.C.Cir.1985). 763 F.2d 436 59 Rad. ICC, Trucking American Ass'ns v. 747 F.2d (P F) Reg.2d issue, respect & at 1541-52. With to this (D.C.Cir.1984). Accordingly, 789-90 we need review, petitioners also ask us to ripeness not address whether or not the lack of agree that we with the Commission’s statement implicates here article III. really hypo- "petitioners’ complaint is one about [proxy applications future of the con- thetical

1Q5 A. this court and the Supreme Court WNCN Listeners Guild v. instance of an issue The clearest (D.C.Cir.1979)(en banc), rev’d, 450 U.S. decision is one that turns judicial unfit for S.Ct. (1981). L.Ed.2d 521 open question of fact rather wholly on an ripeness But was not an issue in the presence “purely of a than law. But decisions; consequently they pro WNCN itself, enough, is not legal question” guidance vide no regarding to us review, ripe for not even as render a case jurisdictional threshold issue. Penn v. Gard to that issue. Toilet Goods Ass’n Cf. Hosp. hurst State School & Halder ner, 87 S.Ct. 18 L.Ed.2d 387 U.S. man, 89, 119, regula 900, 918, U.S. (1967), 104 S.Ct. concerned a (1984)(no 79 L.Ed.2d 67 permitted precedential tions that Commissioner value suspend his Drugs standing Food and certification decisions that assume to sue as drug discussion). additives suit important, of a manufacturer’s More without al and safe until manufacturer agency able whether an decision labelled a inspect pertinent employees FDA lowed “Policy “Rule” or a Statement” is of no facilities and data. The manufacturer consequence to of the decision challenged agency that the Court conceded for review. Since the court reviews not the regulation final action that was the agency pronouncement label but that presented there label, pronounce underlies the it is regu purely legal question of “whether governs ment itself the determination beyond agency’s power totally lation is its status. See Baltimore Gas & Elec. 162-63, 87 Id. at S.Ct. under statute.” ICC, 146, 149(D.C.Cir.1982) Co. v. F.2d found at 1523-24. The Court nonetheless precluded not (ripeness simply because review, the fit for because the issue not agency “interpretive”); order see also Gen to follow the had not bound itself Corp. Ruckelshaus, eral Motors v. 742 challenged, had stat course of conduct but (D.C.Cir.1984) (en banc) F.2d 1565 163-64, might only ed do so. Id. at it (agency’s dispositive label not of whether 87 S.Ct. at 1524-25. interpretative legislative is statement rule). provided general expla- This has circuit discretionary why nation of review of a us, the In the case before Commission agency position postponed is often best procedure past adjudi- has the STA in used specific of application position: (none of tender licensees cations- offers for facial, purely legal A is both court). by of has been this reviewed more and when difficult less worthwhile F) 2; Rad.Reg.2d (P at 1538 & n. See see [regulatory] challenged prescription Acquisition Corp., also re MacFadden discretionary. provision To hold the (1986)(referring to Policy F.C.C.2d face, have to invalid its a court would STA). denying in Statement bidder We provision in con- conclude that the stands thus are not faced with a serious doubt as regardless flict with the statute of how position whether Statement’s Be- agency exercises its discretion. at all. will ever translate into action But ruling, obliged fore so a court would be faced with about how the we are doubts perceive various consider the may make that translation in a Commission ways agency might which the use its reaches case that this court. discretion. propose does not automatic

Action Alliance Senior Citizens offer, of grant every an for of but Heckler, (D.C.Cir.1986). simply outlines a Com- framework discretion this argues this mission’s exercise of its The Commission Indeed, clearly has policy state the Commission court has often reviewed its area. ments, examples that it not intend citing as the decisions indicated does aspects policy.” Respondents regarding other 13. We the text

test] Brief at those in proxy petitioners’ challenge regarding find that appeal. their analogous ripe, contests is not for reasons agency’s discretionary assertion of au- the Commission do to bind proceeding. 59 any particular anything thority typically under a statute is best P) 1538, 1584; (P Rad.Reg.2d & postponed authority. to the exercise of that 104 F.C.C.2d at Acquisition, MacFadden apart “public Even statute’s of the (We that after issuance note standard, petition- interest” resolution of in its the Commission Policy Statement pursu- ers’ assertion that license transfers Acquisition decision denied a MacFadden “extraordinary ant to tender offers are not STA.) application for an bidder’s opera- requiring temporary circumstances statutory the issue of to decide Were we exempt long-form tions” now, by parties, authority as framed require explore depth this court to no tender have to decide whether we would long-term review under section fit under every tender offer would offer or plans from which the Commission to ex- 309(f). correct answer to But the section empt temporarily. tender offers The need perhaps even the Com- question —and Goods, inquiry for this shown Toilet legally binding answer— ultimate mission’s where the Court stated that court “some.” This could also be raised the of “whether tender offers ulti- find that whatever well justified scheme as a whole “extraordinary mately it are come before promulgation regulation” of the and found requiring temporary opera- question would that the breadth of such a interest” within the tions in the by judicial focused review of a be best 309(f), although meaning other of section application regulation. Conversely, deci- not our offers would be. 163-64, 387 U.S. at 87 S.Ct. at 1524-25. offer’s sion here could result deemed, Similarly, consistency being an assessment of later the Commission court, purposes fall the section by this not to within between structure review, long-form postponement of in- long-form review and the Commission’s although might have been found other- 309(f) excep- vocation here of the section approached particulars on its wise implicates large part tion to that review presented are not here first instance. We Act, just section of the Communications a case that enables us to reflect the with 309(f), greatly improved by and would be underlying complexities tender offers presentation the of a transfer meaning- any licensees in communications application. way. ful addition, injury peti- crucial In the specific statutory provision we must post- the assert would result from tioners 309(f), construe, moreover, section rests on long-form may ponement of review never discretionary “public interest” the same suggested The Commission at oral occur. governs long-form standard that review. longer permit argument may that it no trial 309(f) (1982) (“ex- Compare 47 U.S.C. § target high quality of ser- of the licensee’s traordinary requir[e] tempo- hearing, the in a transfer and that vice ”; operations public in the interest rary of section interpretation Commission’s delay operations seriously such of “would 310(d) Act in of the Wichita-Hutchinson interest”) prejudice (emphasis the (1969), Co., peti- 20 F.C.C.2d 584 which (Commission added) 309(a) with id. shall §§ point, may longer no relied for this tioners interest, grant application “public con- sug- good also be law. Commission served”) necessity venience and would be the argument that reference to gested at added), 310(d)(same license (emphasis as to quality of service target licensee’s low 309(d)(1)(petition to applications), transfer acceler- probably available via an would be deny “prima must show facie inconsis- this, proceeding, but license renewal ated interest, ten[cy] [public convenience with too, altogether The Commis- clear. Goods, necessity]”). As both Toilet and did not ad- Policy Statement sion in the 1524-25, 163-64, and 387 U.S. at 87 S.Ct. at question of reference dress at all the decision, F.2d at our Action Alliance prior good or bad ser- 941, show, target challenge to transferor’s judicial review of a 309(f)requires the But, dicates is available whenever a transfer since section vice.4 law,” filed, may application apparently “otherwise authorized which to be be reviewing the question, by easy, on the no means turns of unavoidably constrained be court would acquired jure whether the bidder has de resulting from a an STA assess whether control of the de licensee. See facto comport with “law” offer tender would (P F) 76; Rad.Reg.2d & at 1552 n. see also inter- embodied Wichita-Hutchinson’s Communications, Storer Inc. v. 310(d), hence to pretation of section (D.C.Cir.1985) (resolving F.2d that case re- the rule of whether assess question corporate complex of control is “a of a good Review mains law. case-by-case task must be done on a which principally based basis”). many prejudicial of But re- injury to upon this evanescent about, petitioners complain such as sults simply do inappropriate, since we be would unwinding acquisition difficulty an now the Commission will not know whether ultimately disap- the Commission any reference to transferor’s allow proves or the adverse effects of “caretak- service, inor whether quality of trustee, management by may er” well find that indeed will Wich- the Commission vary timing ap- of the trustee’s with longer to is no be followed. ita-Hutchinson (and pointment and the number of shares anticipate Obviously, should not we control) degree hence the trustee holds. advisory opinion and render Commission degree vary The trustee’s of control could hypotheti- the Commission’s as to whether significantly from case to case. For exam- overruling of cal Wichita-Hutchinson gradual “creeping ple, buy control” upheld by this court. would acquisition, through when the bidder vari- short, analysis of the Commis purchases gradually ac- ous distinct share exempt statutory authority to sion’s target, quires control trustee required long-form review offers final, only the mar- apparently would hold 310(d)necessarily turns by sections 309 ginal purchase that otherwise share would understanding purposes of what the on our of In- give the control. Notice bidder See long-form elements of and essential ques- An quiry at at 13. additional J.A. understanding, we are. But to obtain that the trustee tion is the extent to which ques necessarily have to resolve controlling capacity as interim might, his posi current tion of what Commission’s shareholder, ways act in that contravene is, 310(d)requires, section as tion and what managerial or on his special restrictions long-form proceeding the need in a authority Commission operational that the target quality transferor’s consider The an- Statement. proposes position are in no to resolve service. We by the fact to this is clouded swer it question indeed, the Commission usually governed — that such matters are not resolved it. For this reason self has Compare corporate and trust law. state alone, ripe the issues in this case are not at 12 n. Inquiry of at 12 n. J.A. Notice for review. (suggesting that since Commission law, controlling “does not administer” Many aspects other of the issues in this acts as no role” trustee’s should “have It is unclear when case remain obscure. (P F) shareholder) Rad.Reg.2d & at with 59 procedure may by a be invoked STA duty trustee’s to (suggesting that The in- 1581 bidder for a licensee. Commission programming argu- present of service suggested levels counsel also 4. Commission (P F) point Rad.Reg.2d petitioners & at expenditures.” ment that had not raised this summary added). before the Commission. In its comments cer- (emphasis These Statement, appended comments however, to the to the tainly of reference raise the quoted the Commission operations target in the transfer transferor’s “ requesting here as finding the Commission 'make Indeed, to the proceedings. in their comments proposed new in each case that petitioners expressly point Commission on this affirmatively licensee will add to service to the decision. upon Wichita-Hutchinson relied ” public,’ paraphrased petitioners further as UCC, J.A. at 125. et al. at Comments ‘‘require showing urging the Commission to possible Commission overrides contractual and fidu- hardship parties post- offeror). ciary The duties (the poning review of the Ab- part second questions raises more than it bott Laboratories ripeness) standard for answers about these numerous uncertain- compels also the conclusion that this case is surely ties. Each would be if not focused ripe for review.6 dispelled particular proceeding. Their presence against here also counsels our urge postponement Petitioners that legality review of the of the Commission’s of review in this impose case will positions in the Statement. on them. Since the STA eliminates One at first blush believe that thirty-day waiting period in which file question of whether the Commission’s Poli- petitions deny, petitioners apparently ar cy plain is consistent with the that, gue judicial now, absent their 309(f) language ripe of section for our prevent limited resources will them from satisfied, however, review. We are that quickly performing planned and coordi section is not detachable investigation nated of and oppo decision on balance of that section or from section sition to a involving license transfer 310(d). Consequently, preserve we “our procedure. rely Petitioners heavily on Ameri- ability own intelligently,” decide United Co., States v. Storer Broadcasting ICC, Trucking can Ass’ns v. 351 U.S. 76 S.Ct. 100 L.Ed. 1081 (D.C.Cir.1984), by recognizing that (1956), support their hardship. claim of issues in the case yet before us are not fit Storer concerned FCC judicial for regulations review.5 limiting the number of broadcast licenses that one B. entity could alleged hold. Storer that ability that rules would limit its acquire Given issues in this addi case are not time, fit for review at this Supreme consideration tional stations. Court held way suggest 5. We stress that we in Supreme no that precisely Court has offered a holding genuinely analogous ultimate explanation deferring of this court in a review in ripe 309(f) permits case could not be that all constitutional context: may tender offers or no [Actual] tender offer to fall critical for within its Rather, point constitutional ambit. determination. It will not do is that the issues in now, significance by decision, saying, to discount their yet this case are not fit for whatever that no difference in circumstances will effect may the correct resolution of those issues be. A prin- different constitutional leading result—that the jurisdiction treatise on federal succinct- ciples to a relevant determination of the valid- ly position: summarizes our ity statutory provisions depend of these do not A require development determination to upon the variations in circumstances in which facts, specific comprehensive more or more they potentially applicable. are For exposition [agency's position ques- of an analysis presupposes that we now understand law, tions of] is not inconsistent with eventual princi- what are the relevant constitutional adjudication principles on the basis of broad ples, postponing whereas the reason of deci- legit- make the details irrelevant. It is sion until a constitutional issue is more clear- imate general to defer choice between broad from, ly by, impact focused and receives the particularistic rules and more rules until ex- pre- occurrence in circumstances is perience is available with the difficulties of attempting particularistic distinctions on the cisely may those circumstances reveal abstract, prospective supposi- relevancies that fully developed details of individual case. may adequately tion not see or assess. finding ripe, according- A that the issue is not Party Communist v. Subversive Activities Control ly, prejudgment need not amount to a tacit Bd., 1, 78, 1357, 1400-01, 367 U.S. 81 S.Ct. against a broad rule that could have been (1961). L.Ed.2d 625 applied initially presented. to the case as may Thus a facial attack on a statute be found 6. We express opinion no on the extent to which ripe rely not in terms that on the need for ripeness analysis requires the court to balance detail, more factual and at the same time against hardship the fitness of the issues to way open leave the to hold the statute invalid parties, Eagle-Picher see Indus. v. United grounds depend on that do not on the factual Agency, States Environmental Protection 759 provided. information once it is 905, (D.C.Cir.1985), simply F.2d 918 but con Wright, Cooper, 13A C. A. Miller & E. Federal unripe any clude that this case is in event since 3532.3, (2d Practice and Procedure hardship at 150-51 the issues are unfit and there is no to 1984) (footnotes omitted). ed. parties.

109 review, challenge ripe essentially consequences verse would flow from this enlarge not Storer could num- requiring because court’s challenge a later to the rules, by stations virtue of the ber its require Commission’s refusal to immediate to “operate[d] long-form control the business in particular review a tender of prevented and affairs of Storer” Storer fer. That decision “can then promptly present “cogently plan[ning] challenged its or through an pro administrative operations.” 199-200, cedure, 351 future U.S. at which in turn by is reviewable (footnote omitted). at 76 S.Ct. 768-69 court.” 387 U.S. at 87 S.Ct. at 1525 (footnotes omitted); see Tennessee Gas decision But the Toilet Goods shows that Co., Pipeline 736 at 751. F.2d It is also help petitioners is of no to here. Storer irrelevant that might the Commission in Supreme in Toilet Court Goods distin- particular proceeding refuse to consider a involving decision guished its as Storer challenge authority for its “impact of the administrative action [that] decision, since the reviewing court would immediately be felt by could be said to consider in any event. See in subject conducting day- to it their those 165-66, 387 at 1525-26; U.S. 87 at S.Ct. to-day 387 U.S. affairs.” 87 S.Ct. at at Trucking Ass'ns, American 747 F.2d at contrast, In the situation of 1524-25. 790-91; Co., Baltimore Gas & Elec. petitioners “not Toilet Goods was a situa- F.2d at particular 150. The fact appli that primary in conduct tion which is affected— cations of the position Commission’s might negotiated, ingre- must be when contracts pressures involve extreme time has no rele substituted, special dients or tested petitioners vance. As brief, admit in their compiled.” petitioners records Id. The routinely court appeals handles exactly position here are in the same as the occur under extreme time pressure; liti petitioners. plan- Toilet Goods Petitioners’ gants petitioners such as routinely partic ning preparation any way not inhib- ipate appeals. such See Storer Commu ited protect Statement. To Corp. FCC, (D.C. nications v. 763 F.2d 436 ability plan petitioners prepare, their to Cir.1985) (expedited disposition of appeal only challenge applica- need the next STA from Commission decision in proxy fight tion, claiming they are entitled to intervenors). with public-interest-group Fi given by long-form proceeding time to nally, even if a proceed transfer they decide whether wish ing became moot before this court had the so, being transaction on the merits. That opportunity give plenary considera there seems no here. Petitioners tion, strong possibility there is a that the already legal challenge prepared. have that empowered court would still be to address any And in petitioners’ inability event capable repetition yet case as one plan, itself, distinguish evading See, e.g., Super review. Tire hardship they allege “planning McCorkle, Eng’g Co. v. 416 U.S. insecurity” in “the mine run of situations (1974) (review S.Ct. L.Ed.2d enterprise which an confronts official inter- dispute filed).8 labor that ended before suit pretations policy regarding statements projected application regulatory or fiscal It is true that the refusal to review legislation.” Tennessee Pipeline Gas Co. Statement now deter FERC, (D.C.Cir.1984).7 licensees, tender offers for communication Goods, potential As no may Toilet irremediable ad- since bidders fear that this fact, notwithstanding 7. hardship they The Commission itself asks this court to re- al- now, here, part lege participation view this case because the Commis- did seek sion wishes proceeding following to know whether its tender offer issuance of policy legal. party’s But a Acquisi- bare desire to Statement. See MacFadden cannot, itself, tion, ruling obtain a in and of make a 1. As noted F.C.C.2d 546 n. in the text, ripe case for review. And the Commission’s the Commission’s refusal to consider their comments, id., ruling nothing prejudice desire peti- to obtain a facilitate its adminis- does planning ability trative is answered the text’s to raise re- tioners’ all of their contentions sponse plan. appeal desire to this court. 110 upon

court of their re e.g., review bids State Farm Mutual Automobile In quire long-form immediate Dole, 474, surance Co. v. 802 F.2d 479-81 — hardship Commission. But this is not a (D.C.Cir.1986), denied, U.S.-, cert. case, by any party shared to this and so we 1616, (1987); 107 S.Ct. 94 L.Ed.2d 800 Bet may not consider it. Farm See State Mu Government, 92; ter 780 F.2d at see also Dole, 474, tual Auto. Ins. Co. v. 802 F.2d 1554, (D.C. ACLU v. 823 F.2d 1582 (D.C.Cir.1986); Elec. South Carolina Cir.1987) (Edwards, J., (under concurring) ICC, 1541, & Co. v. 734 F.2d Gas prudential ripeness doctrine, court defers (D.C.Cir.1984). review when “institutional interests favor deferral and the are unable to petition is dismissed for want of demonstrate sufficient ‘hardship’ to out ripeness. weigh interests”). those so It is ordered. “Hardship parties,” however, to the WALD, Judge, dissenting: Chief independent not an requirement for a claim ripe. to be If the institutional interests of I find facial chal- agency, court and aggregate, lenge to the Statement of the Feder- review, favor immediate then the claim will (FCC) al Communications Commission ripe notwithstanding post- the fact that ripe I prece- for review. believe that the ponement of review signif- would not cause dent of this court mandates a somewhat party icant bringing different analyzing ripeness framework for Industries, action. Eagle-Picher See Inc. majority opinion than the uses and that EPA, 905, (D.C.Cir.1985). 759 F.2d proper framework, go under the we should course, party Of satisfy any appli- must ahead and hear the case on the merits. cable injury constitutional re- quirement in order standing to have Ripeness Analysis I. The Framework for rule, see, agency e.g., Sierra party brings When pre-enforcement a a Morton, Club v. 405 U.S. 92 S.Ct. regulation to an administrative (1972), 31 L.Ed.2d 636 but the “hard- policy statement, the first ship” ripeness analysis element of the de- the court is “presents whether the claim veloped in Abbott Laboratories v. Gard- purely legal question.” Toilet Goods Asso- ner, 387 U.S. 87 S.Ct. 18 L.Ed.2d ciation, Gardner, 158, 163, Inc. v. 387 U.S. (1967), was never intended and has 1520, 1524, (1967); S.Ct. 18 L.Ed.2d 697 never been understood to sepa- constitute a Better Government Association v. De- burden, requiring party rate to show an partment State, (D.C. 780 F.2d quantum injury additional before the Cir.1986). does, If weigh the court must court will address the party’s merits any interests in favor of deferring review legal Eagle-Picher, claim. the court until the agency applies its policy rule or explained why hardship is not an indepen- proceeding, enforcement requirement, dent simply but rather is against any resolving interests favor of prudential ripeness factor balance: purely legal question immediately. If merely we were to defer review ... Usually, prudential the Court divides this because we could find significant no balancing separate into stages. two petitioner delay, harm to we would court first considers the institutional inter- perverse achieve the postponing result of ests of both the agency court and in favor review to the detriment of postponing or proceeding with review. and the court pru- ... the name of a If the court concludes that these institu- pro- dential doctrine that is intended to interests, tional taken entirety, in their mili- tect the institutional needs of courts and review, tate postponing toward the court agencies. goes then on to consider whether the hard- ship from postponement party bring- very recently 918. We have ing legal challenge outweighs precedent those reaffirmed prudential our countervailing See, institutional special interests. does not demand a show-

m ing only of the inter- when institutional that the may Commissioner under cer- tain ests favor immediate review. Consolida- circumstances order inspection of cer- FMSHRC, tain facilities data, tion Coal Co. v. and that further certification (D.C.Cir.1987); (Edwards, J., of may id. additives see also be refused to those permit who decline to (“I duly concurring) only emphasize write a ... autho- inspection rized they until complied have litigant ‘hardship’ that a must demonstrate in that regard.” 387 U.S. at 87 S.Ct. at only necessary outweigh when institu- 1524 (emphasis original). in case, In our tional interests that militate in of favor Policy the says Statement that “in the con- review.”) original); (emphasis deferral of offer, text of a tender ... will (D.H. [the Ginsburg, J., dissenting) FCC] but see id. grant an [special temporary authority] (“hardship” postponing from is review an qualified, independent trustee with law). independent requirement of power to consummate the tender of- ” Application op Ripeness II. fer— J.A. (emphasis added). at 81 Analysis Policy adds, however, Statement that it “is to This Case not intended to Commission, foreclose the presents This case the same kind of particular proceeding, adopting “purely legal question” that was involved approach different if warranted in specific in the Toilet case: Goods “whether the circumstances.” Although Id. not manda- regulation totally beyond agency’s is tory, the Policy up strong Statement sets power under the statute.” 387 U.S. at presumption that the trustee mechanism Here, petitioners 87 S.Ct. at 1524. argue will be used. It evidently was the intent of Policy governing that the Statement tender apply the FCC to Policy Statement to entirely offers is authority outside the tender generally. offers Supplemental See the Federal Communications Commission Brief of then, FCC at 11. In this respect, 309(f).1 under 47 U.S.C. As this is “the § significantly case differs from Toilet type legal [may issue that sometimes be Goods. requiring without specific at- decided] Supreme While the Court Toilet Goods tempt enforcement,” Goods, at Toilet thought “judicial appraisal” of the U.S. at 87 S.Ct. at this court statutory presented issue “likely was weigh must against interests for and stand on a much footing surer in the con- immediate review. specific application text of a regu- of th[e] majority is identifying correct in cer- lation,” U.S. 87 S.Ct. at 1524- why tain reasons the court wish to 25, I respectfully submit that our evalua- delay review until Policy Statement tion of claim “would not be applied to a tender offer. Like materially by application enhanced” regulation Goods, Policy Toilet to a Statement here agency does not bind the Government, offer. Better 780 F.2d at 93. Thus, all ap- circumstances. may FCC Petitioners adopting contend that ply its procedures novel trustee to some Statement, entirely the FCC acted tender offers and not others. The court beyond scope of its authority might benefit from learning circum- what qualify because tender offers cannot as stances mechanism, occasion the use of this “extraordinary requiring as well as the reasons the relies on temporary operations” of a facili- broadcast for invoking it. 309(f). offers, ty. 47 U.S.C. Tender Nevertheless, it must said that the they argue, simply among are not the kind FCC’s contemplates much events, like natural disasters or national less application threats, discretion in its security Congress than did grant- for which regulation at issue in authority suspend Toilet Goods. ed the limited FCC There, regulation regular statutory procedures notice in order to “[t]he serve[d] Communications, (D.C. 1. The also the FCC’snew Inc. v. 763 F.2d 436 procedures however, proxy challenge, Cir.1985) curiam). contests. This (per precluded by our decision in Storer community creasingly vexing problem. about inform order members danger. agenda, assess its own in- potential administrative cluding legislation, efforts to enact new imagine to how our I find it difficult validity FCC needs to know the of this legal be “facili- of this claim will resolution approach possible. as soon as To the ex- development.” factual by further tated ripeness designed pro- tent that law is Government, at 92. The 780 F.2d Better agencies prema- tect administrative in congressional intent this case issue of interference, judicial ture see Abbott Lab- any tender depend not facts about does oratories, 387 U.S. at 87 S.Ct. at already in the record. offers that are this interest is not at all threatened is or is not limited to either Section judicial immediate review in case. this “temporary require broad- occasions measure, keep large in- In operations” to this court shares with cast events, major adjudi- like hurricanes. the FCC its interest in an immediate formed of petitioners’ n. claim. Brief of Petitioners at 16 7. We are cation The inevitable See enough sensitivity of- time of tender already informed about tender offers at best will that, hurricanes, they require the court to fers to know unlike act with haste when challenge validity not the kind of events about which faced with a facial to the are kept must informed of the trustee mechanism in the communities context of Thus, particular if offers tender offer. broadcast facilities. Storer Com- Cf. munications, “extraordinary qualify can ever as circum- Inc. v. 763 F.2d 436 309(f), (D.C.Cir.1985) curiam) meaning (per (expedited stances” within the con- apply must be because the use of the sideration of FCC decision to “short- procedures petitioners argue particular proxy term is not as limited as form” con- test).2 Indeed, entirely I possi- that it is. believe that it is tender offer may ble for us to decide this of statu- become moot before the court ever merits, tory interpretation gets leaving now. Petitioners’ a chance to rule on the facial is, challenge Policy today. there- this court no better off than it is fore, Supplemental “fit” for immediate review. Bet- See Brief of at 9-10. See FCC ter at 92-93 n. 33. Government sum, recognize In I this while that court

Moreover, case, Goods, denying this in this may unlike Toilet have some interest weigh pre-enforcement challenge, contains institutional interests that balance weigh in favor of immediate seems review. The FCC institutional interests decid- urges ripe this edly itself court to find this case in favor of immediate review. Given outcome, policy petition- because “review of the it is irrelevant if the Commission’s this application, the context of a ers’ interest immediate review adds lit- tle, pressures any, weight under the time severe that would that side of scale. ..., disrup- majority petition- be inevitable be far more The does not contend that requisite “injury” tive lack minimum FCC’s administration of its ers [to policy] reviewing establishing standing than State- Supplemental justiciability ment at this time.” Statement. The Brief FCC’s case, In simply FCC at 13. this has an here is whether the court FCC issue important determining legal ought interest in to hear the case now or later. Since validity statutory interpretation presented of the trustee mechanisms in ad- issue very regulates judicial vance: the market that it is suitable for immediate resolution may by legal good conducting uncertainty. be affected and there are reasons for now, represents important ripeness inquiry that review cope administrative effort in- should to an end.3 with an come Storer, April 2. the FCC issued its “Because we have determined that the [FCC] order on argument and, extent, 1985. Oral positive before this court was the court ha[s] to a lesser 2,May heard on and time], we affirmed the FCC's there are no [at interest day. per opinion decision the same A curiam conflicting Eagle-Picher, interests to balance.” explaining days our decision followed twelve (emphasis original). later.

H3 A pre-enforcement III. challenge brought by a Further Observation statutory beneficiary. pre- This court has however, majority, finds viously attempted to “primary redefine claim unfit for immediate review does my that not share view both conduct” in such way that the term can legitimate impor- and the court have a apply to the “public activities of interest” deciding petition- positive tant interest groups represent the interest of the ers’ facial at this time. Given members. Government, See Better that, position, recognize I under tradi- seems, F.2d at 93-94.4 certainly It whatev- law, majority go tional must formula, er the recognize that courts must on to consider whether have way a statutory for beneficiaries who do hardship sufficient demonstrated from not run businesses to demonstrate “hard- postponing outweigh review to the counter- ship” postponing a pre-enforcement Thus, vailing although considerations. un- challenge. It does not take much conjuring my analysis, der which finds the issue fit to think of review, there would be no need to show hardship, respond additional I wish to nonregulated statutory beneficiaries would troubling aspect majority’s one of the hard- strong have a interest in judicial immediate ship analysis. review of pre-enforcement their challenge.5 relies, majority part, on “pri- I fear majority’s that the application of mary conduct” test articulated in Toilet the usual “primary conduct” test in its petition- Goods to reach its conclusion that “hardship” analysis here prevent would hardship. ers are unable show sufficient groups such in virtually all cases from 387 U.S. at S.Ct. 1524-25. The meeting prong the second ripeness of the “primary use of the standard conduct” test Thus, analysis. I do not share its reason- as the determiner of in the con- Because, ing. however, I find the text of this institu- legally case makes little sense or in the real world. Toilet Goods involved tional interests in this case warrant imme- agency rulemaking a by a review, diate neither I necessary do find it regulated contrast, entity. the chal- exactly decide the “hardship” how ele- lenge brought here has by been the intend- ment analyzed should be in a case like this ed beneficiaries of statutory a scheme. pre-enforcement a where agen- Agency rulemaking will never affect cy rule-making brought listening “primary conduct” of benefi- group regulated rather than entity. That ciaries in the way same that it often affects effort can await day. another “primary conduct” regulated enti- ties. Yet statutory beneficiaries have the

right judicial to seek relief when their le- Conclusion gally protected interests are harmed unlawful forth, action. For the reasons I have set I re- spectfully panel’s dissent from the decision Thus, test, “primary conduct” devel- that the facial challenge of the tender offer oped in the pre-enforcement context of a challenge brought by regulated entity, is Policy ripe is not for review.6 judging well-suited for groups organized represent "primary any 4. These way, depending often are their upon conduct” in legal the intended beneficiaries of a statu- whether their claim is decided in a tory scheme. pre-enforcement challenge or in the context of proceeding against an enforcement example, 5. For if a citizens' interest senior drug manufacturer. group regulations pre- claimed that the FDA’s scribing merits, inspection drug panel standards for manufac- Were to reach the I would unlawfully inadequate, turer facilities policy respect were hold that the FCC’snew with regu- goes senior beyond statutory power citizens who must take medications tender offers its larly strong 309(f), only statutory provision have a interest in an immediate under validity regulations, authority determination of the of the which it relies as for the trustee mech- they change language my reading even if it cannot be said that anism. Based on of the EMPLOYEES TREASURY NATIONAL Petitioner,

UNION,

v. RELATIONS

FEDERAL LABOR

AUTHORITY, Respondent. ASSOCIA- EDUCATION

OVERSEAS (a affiliate of the unified State TION Association), Peti- Education National

tioner, LABOR RELATIONS

FEDERAL

AUTHORITY, Respondent. 85-1597, and 85-1635. 85-1681

Nos. Appeals, Court of

United States Circuit.

District of Columbia 23,

Argued Sept. 1986. Aug.

Decided section, extremely procedures might legislative history wise as a of this I be- offer and the plain Congress only policy, is bound this court § lieve intended to be used keep matter language Congress. See INS put and clear intent of when the FCC needed to broadcast — U.S.-, Cordoza-Fonseca, they operation temporarily 107 S.Ct. so that v. stations (1987); impending Board Governors v. 94 L.Ed.2d 434 inform citizens of disasters Corp., U.S. "extraordinary” political Financial events. I cannot con- Dimension (1986). of the Congress L.Ed.2d 691 Because intended to allow the FCC S.Ct. clude that disposition "safety-value" authority majority’s of this case on to invoke its 309© regular statutory grounds, further on the mer- merely I not elaborate because it found the do Physically Hand- "long-form” procedures Ass’n. were cumbersome its. See too California (D.C.Cir. resulting icapped F.2d 834 n. 17 for broadcast license transfers from a J., 1985) (Wald, dissenting). tender offer. Even if the FCC’s new tender

Case Details

Case Name: Office of Communication of the United Church of Christ v. Federal Communications Commission and the United States of America

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

Date Published: Aug 14, 1987

Citation: 826 F.2d 101

Docket Number: 86-1278

Court Abbreviation: D.C. Cir.