WASHINGTON ASSOCIATION FOR TELEVISION AND CHILDREN, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, National Broadcasting Company, Evening News Association, WJLA, Inc., Intervenors.
No. 82-1524.
United States Court of Appeals, District of Columbia Circuit.
Argued March 11, 1983. Decided July 19, 1983. As Amended July 22, 1983.
712 F.2d 677 | 229 U.S.App.D.C. 363 | 9 Media L. Rep. 2160
Before ROBINSON, Chief Judge, WALD, Circuit Judge, and GORDON, Senior District Judge for the Western District of Kentucky.
Angela J. Campbell, Washington, D.C., with whom Wilhelmina Reuben Cooke, Washington, D.C., was on brief, for appellant.
C. Grey Pash, Jr., Attorney, F.C.C., Washington, D.C., with whom Stephen A. Sharp, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for appellee.
Arthur B. Goodkind, Washington, D.C., was on brief for intervenor, National Broadcasting Co., Inc.
J. Laurent Scharff and Jack N. Goodman, Washington, D.C., were on brief for intervenor, Evening News Ass‘n.
Howard F. Roycroft, Washington, D.C., was on brief for intervenor, WJLA, Inc.
*Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
1 Petitioner Washington Association for Television and Children (WATCH) filed petitions with the Federal Communications Commission (FCC or Commission) opposing the license renewals of three television stations in Washington, D.C. on the grounds that the stations had failed to provide any regularly scheduled weekday children‘s programs, in contravention of Commission policy. The Commission granted the license renewals without holding a hearing, explaining
I. BACKGROUND
A. The Commission‘s Policy on Children‘s Programming
2 In 1974, the FCC, after a lengthy rulemaking, issued a Children‘s Television Report and Policy Statement (“Children‘s Policy Statement“) in which it outlined broadcasters’ duty to provide children‘s programming. 50 F.C.C.2d 1 (1974), reconsid. denied, 55 F.C.C.2d 691 (1975).1
3 The FCC found that “broadcasters have a special obligation to serve children,” 50 F.C.C.2d at 5, but declined to establish numerical requirements for what quantity of children‘s programming would satisfy that obligation. The Commission decided instead to consider “on an ad hoc basis” whether TV stations were devoting enough time to children‘s shows. Id. at 6 (footnote omitted). The Commission emphasized, however, that:
[W]e do expect stations to make a meaningful effort in this area.... [A] few stations present no programs at all for children. We trust that this Report will make it clear that such performance will not be acceptable....
4 Id.
5 The Commission also expressed concern over the “tendency on the part of many stations to confine all or most of their children‘s programming to Saturday and Sunday mornings” and the “relative absence” of weekday programming. Id. at 8. While it again declined to adopt a “specific scheduling rule,” the Commission explained that:
[I]t is [not] a reasonable scheduling practice to relegate all [children‘s] programming ... to one or two days ... [and] we do expect to see considerable improvement in scheduling practices in the future.
6 Id. In short, the Commission expected television stations to provide weekday children‘s programming, but did not specify how much or what kind.
B. Proceedings Before the Commission
7 All television stations must periodically apply to the FCC to have their licenses renewed. The FCC may generally grant a license renewal without a hearing if it finds that the “public interest, convenience, and necessity” will be served by granting the renewal.
8 When the NBC, CBS, and ABC-affiliated stations in Washington, D.C. requested renewal of their licenses, WATCH filed petitions to deny the renewals, claiming that the Children‘s Policy Statement requires all television stations to broadcast regularly scheduled weekday children‘s programs and that the stations had not met this requirement.2 WATCH asked the Commission to
9 The stations’ failure to broadcast regularly scheduled weekday children‘s programs is not in dispute. We therefore deal only with the second requirement for a hearing: whether the Commission was unable to find that renewal is in the “public interest.”
10 WATCH “purposefully restricted [its petition] to this single issue” of regularly scheduled weekday programming and addressed neither the quality nor the quantity of non-regularly scheduled children‘s programs. WATCH Petition to Deny (NBC), at 6 n. 6, J.A. at 6, 11 n. 6. In response, the stations admitted carrying no regularly scheduled programs but claimed to present “an adequate amount of [non-regularly scheduled] children‘s programming.” Evening News Association, 89 F.C.C.2d at 912. In replying to the stations, WATCH did not address “the quantity or sufficiency of the weekday children‘s programming described by the licensees.” Id. at 913. Instead, it “reiterate[d]” that it was “not challenging [the stations‘] programming decisions on the basis of content or quality, but simply on [their] failure to provide any regularly scheduled weekday children‘s programming.” WATCH Reply to Opposition to Petition to Deny (NBC) at 7, J.A. at 144, 150 (footnote omitted).
11 The Commission found that the Policy Statement did not require stations to provide regularly scheduled programs so long as the stations provided an adequate amount of non-regularly scheduled programming. It therefore rejected WATCH‘s request for a hearing and granted the license renewals. Evening News Association, 89 F.C.C.2d at 915. The Commission did not address whether the licensees in fact provided adequate weekday children‘s programming; it believed that WATCH had not raised that issue. See id. (“WATCH specifically limits its petitions to the single issue of ... regularly scheduled weekday children‘s programming“) (emphasis in original).
12 WATCH appealed directly to this court without petitioning the FCC for rehearing.
C. Proceedings Before this Court
13 In its opening brief to this court, WATCH again states the issue as whether the FCC was required to hold a hearing “where ... the licensees provided no regularly scheduled weekday programming for children.” WATCH Brief at 2 (emphasis added). In its reply brief, WATCH for the first time complains that it meant to object more broadly to the “general sufficiency of the licensees’ weekday programming,” WATCH Reply Brief at 6, and that it used the absence of regularly scheduled programming merely to “illustrate[ ]” that general objection, id. at 4. Moreover, there is some force to its argument that the one or two hours per month of weekday children‘s specials broadcast by each of the three stations do not measure up to the Commission‘s expectation of “considerable improvement in scheduling.”
14 Our first task is to consider whether this broader claim is properly before us. We hold in part II that it is not. In part III, we affirm the FCC‘s interpretation of the Children‘s Policy Statement as not unequivocally requiring television stations to broadcast regularly scheduled weekday children‘s programs.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
15 As a general rule, claims not presented to the agency may not be made for the first time to a reviewing court. See United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952):
Simple fairness ... requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.
16
The filing of a petition for rehearing shall not be a condition precedent to judicial review of [an FCC decision] except where the party seeking such review ... relies on questions of law or fact upon which the Commission ... has been afforded no opportunity to pass.
17 Our cases construe
18 First, WATCH never explicitly alleged the general inadequacy of the stations’ weekday programming. Quite the contrary, WATCH recited its intent to raise the “single issue” whether the Children‘s Policy Statement required regularly scheduled weekday programming. WATCH Petition to Deny (NBC) at 6 n. 6, J.A. at 11 n. 6. The FCC reasonably took WATCH‘s petition at face value. Second, the Commission clearly stated its understanding that WATCH objected only to the absence of regularly scheduled programming. See 89 F.C.C.2d at 915 (quoted in part I.B supra). If WATCH believed that the Commission had misconstrued WATCH‘s petition, it could easily have pointed out that error in a petition for rehearing.
19 It remains to consider whether this case falls within one of the exceptions to the exhaustion doctrine. While
leave[ ] room for the operation of sound judicial discretion to determine whether and to what extent judicial review of questions not raised before the agency should be denied.
20 Action for Children‘s Television v. FCC, 564 F.2d 458, 469 (D.C.Cir.1977) (quoting Great Falls Community TV Cable Co. v. FCC, 416 F.2d 238, 239 (9th Cir.1969)).4
21 The cases assume that
22 In particular, where issues by their nature could not have been raised before the agency (e.g., a material change in circumstances or a serious impropriety in the administrative process), a remand to the agency may be appropriate.7 A reviewing court may also set aside agency action that is “patently in excess of [the agency‘s] authority,”8 and may in some cases consider arguments that it would have been futile to raise before the agency.9 Moreover, it is not always necessary for a party to raise an issue, so long as the Commission in fact considered the issue.10 Other exceptions may also exist.11
23
24 Nor would it be appropriate to create a special exception to fit this case, even supposing our limited discretion stretches that far. WATCH itself created the problem by narrowly restricting its petition to deny, and then failed to complain in a petition for rehearing that the Commission had misunderstood WATCH‘s petition. It cannot complain of unfairness because we decline to address an issue it twice failed to raise, with no excuse for the failure.
25 To be sure, the Commission retains an “affirmative” duty to find that the public interest will be served by granting the license. West Coast Media, Inc. v. FCC, 695 F.2d 617, 622 (D.C.Cir.1982); RKO General, Inc. v. FCC, 670 F.2d 215, 232 (D.C.Cir.1981), cert. denied, 456 U.S. 927 (1982); see
26 Our suspicions aside, however, the Commission has no general duty to explain its implicit finding that the stations presented adequate children‘s programming, either for the edification of petitioners or to permit judicial review.15 If, as here, the Commission grants the renewal application, it “shall ... issue a concise statement of the reasons for denying the petition [to deny], which statement shall dispose of all substantial issues raised by the petition.”
III. ANALYSIS
27 We turn, then, to the only issue properly before us: whether a station that offers no regularly scheduled weekday children‘s programming cannot satisfy the dictates of the Children‘s Policy Statement under any circumstances. We find no such requirement in the Policy Statement.
28 As WATCH concedes, nothing in the Policy Statement explicitly requires regularly scheduled children‘s programming. We also do not find such a requirement to be implicit in the Policy Statement. Certainly regularly scheduled programming is an important component of programming. But in the Children‘s Policy Statement, the FCC declined to set hard and fast rules in favor of giving the broadcasting industry “flexibility” in meeting its obligation to children. 50 F.C.C.2d at 18; See Action for Children‘s Television v. FCC, 564 F.2d 458, 479, 481 (D.C.Cir.1977) (upholding the Commission‘s decision “not to adopt specific regulations governing ... programming practices for children‘s television” and to instead rely on industry “self-regulatory efforts“). The few flat statements to be found in the Policy Statement merely prohibit TV stations from making grossly inadequate efforts--e.g., presenting “no programs at all for children,” 50 F.C.C.2d at 6, or relegating “all” children‘s programming to the weekends, id. at 8.
29 Nor would WATCH‘s position make sense from a policy standpoint. Its argument implies that a station that broadcasts a regularly scheduled half-hour of cartoons once a week (and sufficient other children‘s programming) could comply with the Children‘s Policy Statement, but that the station would violate the Policy Statement if it replaced the cartoons with, say, three hours per week of educational specials. We fail to see the logic of such a requirement.
30 Finally, this court gives “great deference” to an agency‘s interpretation of its own regulations. Udall v. Tallman, 380 U.S. 1, 16 (1965); see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969) (deference to FCC‘s statutory interpretation); Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39 (1981) (agency‘s statutory construction must be upheld if it is “sufficiently reasonable,” even if it is not “the only reasonable one or even the reading the court would have reached” on its own). Here, deference is enhanced because the Commission has consistently interpreted the Policy Statement, albeit implicitly, not to require regularly scheduled weekday children‘s programming. See License Renewal Applications of Certain California Television Stations, 68 F.C.C.2d 1074, 1075 (1978) (approving license renewals over objection that “the licensees do not provide age-specific programs for both school age and pre-school children on a regular weekday basis“); cf. Notice of Proposed Rulemaking, 75 F.C.C.2d 138, 143 (1979) (discussing scheduling of children‘s shows without distinguishing between regularly scheduled and non-regularly scheduled programs); Channel 20, Inc., 70 F.C.C.2d 1770, 1773 (noting with approval that the licensee has “aired its children‘s programming throughout the broadcast week” without distinguishing
31 In sum, we cannot say that the Commission acted unreasonably in interpreting its own policy statement as not imposing a flat requirement that stations must offer regularly scheduled weekday children‘s programming. The Commission‘s decision to grant the three challenged license renewals is affirmed.