United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 1999 Decided August 3, 1999
No. 98-1305
Radio-Television News Directors Association and
National Association of Broadcasters,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
Office of Communication, Inc., of the
United Church of Christ, et al.,
Intervenors
Consolidated with
No. 98-1334
On Petitions for Review of an Order of the
Federal Communications Commission
---------
Daniel E. Troy argued the cause for petitioners. With him
on the briefs were Richard E. Wiley, Henry L. Baumann,
Jack N. Goodman and Steven A. Bookshester. Kathleen A.
Kirby entered an appearance.
David M. Hunsaker and Denise B. Moline were on the
briefs for appellant Freedom of Expression Foundation, Inc.
Christopher J. Wright, General Counsel, Federal Commu-
nications Commission, argued the cause for respondents.
With him on the brief were Frank W. Hunger, Assistant
Attorney General at the time the brief was filed, U.S. Depart-
ment of Justice, Mark B. Stern and Jacob M. Lewis, Attor-
neys, Daniel M. Armstrong, Associate General Counsel, Fed-
eral Communications Commission, and C. Grey Pash, Jr.,
Counsel.
Andrew Jay Schwartzman argued the cause for interve-
nors Office of Communication, Inc., of the United Church of
Christ, et al. With him on the brief was Gigi B. Sohn.
Angela J. Campbell and Randi M. Albert were on the brief
for amicus curiae Safe Energy Communication Council.
Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: These consolidated appeals chal-
lenge the Federal Communications Commission's ("FCC")
decision to not repeal the personal attack and political editori-
al rules. Petitioners1 maintain that the rules are "two vestig-
es of a bygone area of broadcasting regulation" that should
have disappeared when the FCC abrogated the fairness
doctrine that the two rules were allegedly intended to "effec-
tuate." Preserving the rules when their rationale has evapo-
rated, petitioners contend, is arbitrary and capricious, and
violates the First Amendment. The FCC has deadlocked on
__________
1 Petitioners are the Radio-Television News Directors Associa-
tion ("RTNDA"), the National Association of Broadcasters ("NAB"),
and the Freedom of Expression Foundation, Inc ("FEF").
its proposal to repeal the rules, so we review the joint
statement of Commissioners Ness and Tristani supporting
retention of the rules as the opinion of the agency. See In re:
Radio-Television News Dirs. Ass'n, No. 97-1528, 1998 WL
388796 (D.C. Cir. May 22, 1998) (unpublished opinion).
Although the FCC issued a notice of proposed rulemaking
("NPRM") proposing to repeal or modify the two challenged
rules because it had concluded that the rules might no longer
be in the public interest, and that "especially searching"
reexamination was necessary, the FCC now defends the rules
primarily by negative implication, rejecting attacks on the
rules while assuming their underlying validity. Absent affir-
mative justification of the two rules as being in the public
interest, or explanation of why the rules should survive in
light of FCC precedent rejecting the fairness doctrine, the
court is left in large part to guess the rationale that shields
the rules from critiques the FCC found persuasive when
reviewing the fairness doctrine, and which the FCC itself
proffered in the NPRM. Such an approach to defending an
existing rule against a suggestion that it be repealed might in
other circumstances be sufficient to withstand judicial review
under the Administrative Procedure Act, 5 U.S.C. s 706
(1994) ("APA"), but not where the NPRM and subsequent
FCC precedent frame the proceeding to require a persuasive
rationale for rules that seem unnecessary. Without a clear
explanation for the rules, the court is not in a position to
review whether they continue to serve the public interest, and
whether they burden First Amendment interests too severe-
ly. The court, therefore, cannot affirm the FCC's order, but
neither can it conclude that the FCC could not on remand
justify the rules consistently with principles of administrative
law. Accordingly, rather than enjoining enforcement of exist-
ing rules that the FCC might be able to justify, we must
remand the case for the FCC to further explain its decision
not to repeal or modify them. Should a further challenge be
made to the FCC's decision on remand, the court will be in a
position to test the FCC's rationale against the factual and
legal attacks that petitioners raise against it.
I.
From the early days of spectrum regulation in the 1930s
and 1940s, the FCC imposed upon broadcasters a duty that
came to be known as the "fairness doctrine." To merit a
broadcast license, applicants were obliged, first, "to cover
vitally important controversial issues of interest in their
communities," and second, "to provide a reasonable opportu-
nity for the presentation of contrasting viewpoints." Syra-
cuse Peace Council, 2 F.C.C.R. 5043, 5058 n.2 (1987), recon.
denied, 3 F.C.C.R. 2035 (1988). The fairness doctrine per-
sisted until 1987, although its death knell sounded in 1985,
when the FCC released an exhaustive "Fairness Report"
declaring the doctrine obsolete and "no longer [in] ... the
public interest." Fairness Report, 102 F.C.C.2d 142, 246
(1985). The report concluded that new media technologies
and outlets ensured dissemination of diverse viewpoints with-
out need for federal regulation, that the fairness doctrine
chilled speech on controversial subjects, and that the doctrine
interfered too greatly with journalistic freedom. See id. at
147. The FCC did not immediately abrogate the doctrine,
however, electing instead to await resolution of proposals
percolating in Congress. See id. 247. At the time, the FCC
was concerned that the 1959 amendments to the Communica-
tions Act rendered the fairness doctrine a statutory necessity,
subject to repeal only by Congress. See id. at 227-46. Less
than a year later, the court held that the fairness doctrine
derived from the FCC's mandate to serve the public interest,
subject to changing agency interpretation, and was not com-
pelled by statute. See Telecommunications Research & Ac-
tion Ctr. v. FCC, 801 F.2d 501, 517-18 (D.C. Cir. 1986). The
doctrine's demise swiftly followed.
In 1987, the FCC announced during an adjudication that it
would no longer enforce the fairness doctrine. Syracuse
Peace Council, 2 F.C.C.R. at 5043. Relying heavily on its
1985 Fairness Report, the FCC reasoned that the doctrine
imposed substantial burdens on broadcasters without counter-
vailing benefits. As a result, the FCC concluded that the
doctrine was inconsistent with both the public interest and
the First Amendment principles it was intended to promote.
See id. at 5052. The court affirmed the conclusion that the
fairness doctrine no longer served the public interest, but did
not reach the constitutional question. See Syracuse Peace
Council v. FCC, 867 F.2d 654, 656 (D.C. Cir. 1989).
The Syracuse order covered the fairness doctrine only as
applied generally, and did not review each of its evolving
permutations. In particular, the FCC noted that the order
created precedent for, but did not directly resolve, reconsid-
eration of the political editorial and personal attack rules,
much less what effect general abrogation of the fairness
doctrine would have on the doctrine's "every conceivable
application." Syracuse Peace Council, 2 F.C.C.R. at 5063
n.75.
The FCC promulgated the political editorial and personal
attack rules in 1967, although it had previously enforced them
as corollaries to the fairness doctrine. See Amendment of
Part 73 of the Rules to Provide Procedures in the Event of a
Personal Attack or Where a Station Editorializes as to
Political Candidates, 8 F.C.C.2d 721 (1967) ("Personal At-
tacks & Political Editorials"). The two rules are distinct,
although petitioners attack them for essentially the same
reasons.
The personal attack rule provides that:
When, during the presentation of views on a controver-
sial issue of public importance, an attack is made upon
the honesty, character, integrity, or like personal quali-
ties of an identified person or group, the licensee shall
... transmit to the persons or group attacked ... [the
substance of the attack] and an offer of a reasonable
opportunity to respond over the licensee's facilities.
47 C.F.R. s 73.1920(a) (1998). Several exceptions limit the
rule, including exclusion of attacks in "bona fide newscasts."
47 C.F.R. s 73.1920(b)(4). The political editorial rule has a
similar structure, affording political candidates notice of and
an opportunity to respond to editorials opposing them or
endorsing another candidate.2 See 47 C.F.R. s 73.1930
(1998).
The Supreme Court has rejected facial First Amendment
challenges to both rules. See Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969).3 The Court started from the premise
that "[t]here is no sanctuary in the First Amendment for
unlimited private censorship operating in a medium not open
to all." Id. at 392. Given the scarcity of broadcast spectrum
relative to interested users, the Court concluded that victims
of personal attacks and candidates opposed by editorials
might be "unable without governmental assistance to gain
access to ... [broadcast media] for expression of their views."
Id. at 400. Because dissemination of these views would serve
the public's right "to receive suitable access to social, political,
esthetic, moral, and other ideas and experiences," id. at 390,
the First Amendment benefits of the personal attack and
political editorial rules justified the imposition on licensees'
asserted right "continuously to broadcast whatever they
choose." Id. at 386. The Court cautioned, however, that "if
experience with the administration of [these] doctrines indi-
cates that they have the net effect of reducing rather than
enhancing the volume and quality of coverage [of public
__________
2 Specifically, the political editorial rule provides, in part, that:
[w]here a licensee, in an editorial ... [e]ndorses or ... [o]ppos-
es a legally qualified candidate[,] ... the licensee shall, with[in]
24 hours after the editorial, transmit to [the endorsed or
opposed candidate] ... (A) [n]otification of the date and the
time of the editorial, (B) [a] script or tape of the editorial and
(C) [a]n offer of reasonable opportunity for the candidate or a
spokesman of the candidate to respond over the licensee's
facilities.
47 C.F.R. s 73.1930(a).
3 Although Red Lion has been "the subject of intense criti-
cism," it is still binding precedent. Time Warner Entertainment
Co. v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (Williams, J.,
joined by Edwards, C.J., and Silberman, Ginsburg, and Sentelle,
JJ., dissenting from denial of rehearing in banc); see also Branch v.
FCC, 824 F.2d 37, 49-50 (D.C. Cir. 1987).
issues], there will be time enough to reconsider the constitu-
tional implications." Id. at 393.
The instant case arises from a petition for rulemaking filed
by the NAB to repeal the political editorial and personal
attack rules. The petition asserted that the rules entailed
unnecessarily severe administrative burdens and were
counter-productive because they chilled controversial speech
rather than encouraging balanced debate. In light of the
FCC's experience administering the rules and Red Lion's
cautionary limitation to then-prevailing facts, the petition
invited the FCC to conclude that the rules were obsolete and
had undermined, rather than furthered, First Amendment
goals. In 1983, the FCC issued an NPRM proposing to
repeal or modify the political editorial and personal attack
rules. See Repeal or Modification of the Personal Attack
and Political Editorial Rules, 48 Fed. Reg. 28,295 (1983).
The NPRM outlined the development of First Amendment
law after Red Lion, noting a need to test the challenged rules
under the "more exacting framework of current law." Id. at
28,297. The FCC went so far as to state that "[w]e believe
the petitioner [NAB] and other commenters have presented a
compelling case that the personal attack and political editorial
rules do not serve the public interest." Id. at 28,301. Conse-
quently, the FCC concluded, "our reexamination of the public
interest justification for the ... rules must be especially
searching." Id. at 28,298.
And then nothing happened for a long time. The Fairness
Report appeared in 1985, but did not discuss the political
editorial and personal attack rules. The fairness doctrine
disappeared in 1987, again without resolution of the pending
NPRM. In 1987, NAB and other interested parties filed a
"petition for expedited rulemaking" and clarification of Syra-
cuse's effect on the personal attack and political editorial
rules. And still nothing happened. The FCC's inaction led
to a second "petition for expedited rulemaking" in 1990. This
petition reiterated that the challenged rules were obsolete
and should have been abandoned along with the fairness
doctrine, and argued that further delay would be inappropri-
ate. When the FCC still failed to act, RTNDA filed a
petition for a writ of mandamus with the court, and thereafter
the FCC solicited comments to update the record.4 The
court then denied the mandamus petition "without prejudice
to its renewal should the [FCC] fail to make significant
progress, within the next six months, toward the possible
repeal or modification of the personal attack and political
editorial rules." Radio-Television News Directors Ass'n, No.
96-1338, 1997 WL 150084 (D.C. Cir. Feb. 7, 1997).
In August 1997, the FCC issued a public notice stating:
After extensive discussion and consideration of various
alternatives, a majority of the Commission is unable at
this time to agree upon any resolution to the issues
presented in this docket. The Commissioners expect to
issue statements setting forth their respective views on
this matter.
Public Notice, 12 F.C.C.R. 11,956, 11,956 (Aug. 8, 1997).
Commissioners Quello and Chong voted to repeal the rules,
while Chairman Hundt and Commissioner Ness voted for
further inquiry. A second mandamus petition followed. Dur-
ing the pendency of this second petition, the FCC issued a
second public notice announcing a deadlock among the newly
appointed commissioners. See Public Notice, 13 F.C.C.R.
11,809 (May 8, 1998). Chairman Kennard recused himself
from the proceeding, leaving a 2-2 split with Commissioners
Ness and Tristani favoring the status quo and Commissioners
Furchtgott-Roth and Powell favoring repeal.
In May 1998, the court held that the public notice announc-
ing the deadlocked FCC vote constituted final agency action,
and that the commissioners voting against repeal were
obliged to submit a statement of reasons to the court in order
to facilitate judicial review. See Radio-Television News Di-
rectors Ass'n, 1998 WL 388796. Except as noted, the court
denied the mandamus petition. Commissioners Ness and
Tristani submitted a joint statement explaining why they
would preserve the rules (hereinafter "the Joint Statement"),
__________
4 The FCC concedes in its brief that its "attention was drawn to
[the pending] matter by" the mandamus petition.
while Commissioners Powell and Furchtgott-Roth submitted
a joint dissenting statement. See Public Notice, 13 F.C.C.R.
21,901 (June 22, 1998).
II.
Petitioners first contend that the Syracuse order of its own
force drags the political editorial and personal attack rules
down with the fairness doctrine to which they were moored.
Essentially, they maintain that the Syracuse order actually
rescinded the challenged rules, or, if not, that rescission
inexorably follows from the reasoning in Syracuse.5 Al-
though the FCC disputes these contentions, it agrees that the
fairness doctrine is dead, and that the political editorial and
personal attack rules were initially derived, at least in part,
from the fairness doctrine.
The Syracuse order did not directly rescind the rules
challenged here. Not only did the order expressly state that
it did not cover the rules, see Syracuse Peace Council, 2
F.C.C.R. at 5063 n.75, but subsequent orders have indicated
that the status of corollaries to the fairness doctrine is a
question for further review even after Syracuse. See, e.g.,
Citizens for a Humane Kansas, 3 F.C.C.R. 718, 718 n.1
(1988). We thus need not consider the extent to which an
order terminating an adjudication could repeal rules promul-
gated through notice and comment rulemaking. Cf. Ameri-
can Fed'n of Gov't Employees Local 3090 v. Federal Labor
Relations Auth., 777 F.2d 751, 759 (D.C. Cir. 1985).
Nor, contrary to petitioners' contention, does the demise of
the fairness doctrine necessarily lead to the demise of the two
rules challenged here. Although there is language indicating
that the FCC has viewed the two rules at issue to be part and
parcel of the fairness doctrine, see, e.g., Personal Attacks and
Political Editorials, 8 F.C.C.2d. at 722, the FCC's post-
Syracuse conduct is consistent with its statement in Syracuse
__________
5 The dissenting commissioners take the same approach. See
Joint Statement of Commissioners Powell and Furchtgott-Roth at
5-10.
that the rules had a life separate and apart from that
adjudication. See Syracuse, 2 F.C.C.R. at 5063 n.75. The
challenged rules are substantially narrower and more refined
than the fairness doctrine, which covered all public issues,
rather than a subset of attacks and editorials. A broad rule
can be flawed for reasons that do not affect its narrower
adjuncts. Thus, it could be theoretically consistent for the
FCC to have concluded that the public interest did not
require fairness to all views all of the time, but that fairness
to particular views in particular circumstances remained de-
sirable. The FCC's decision in Arkansas AFL-CIO, 7
F.C.C.R. 541, 541 (1992), aff'd, 11 F.3d 1430 (8th Cir. 1996) (in
banc)--ruling that the requirement for balanced coverage of
ballot issues collapsed in 1987 because it was "entirely de-
rived from the fairness doctrine" and therefore governed by
Syracuse--is not, as petitioners suggest, dispositive; the
FCC never codified a separate rule regarding ballot issues
and had historically treated ballot coverage requirements as
merely a particular incident of the fairness doctrine. See,
e.g., Citizens to Tax Big Oil, 78 F.C.C.2d 473, 474 (1980). In
short, while the challenged rules do not necessarily persist
after the fairness doctrine, they need not share its fate.
Petitioners' contrary theory relies on an untenably broad
understanding of what the "fairness doctrine" encompasses
and what is meant by its abrogation. In petitioners' view,
new rules added to an existing doctrine become inseparable
from the doctrine and must share the doctrine's eventual fate.
Yet, when an agency operates under a general standard such
as the fairness doctrine, explaining related rules within the
framework of the standard is reasonable, even if the new rule
is not entirely dependant on the standard or materially
modifies the preexisting regulatory environment. Although
the order promulgating the political editorial and personal
attack rules notes that the rules do not "alter or add to the
substance of the [fairness] doctrine," see Personal Attacks
and Political Editorials, 8 F.C.C.2d 721, 722 (1967), its
reliance on the doctrine does not apply in reverse: relying on
an obviously relevant doctrine does not mean that the FCC
could not or would not have acted had the doctrine not been
available. There may have been many reasons to adopt the
rules, but justifying them would have been redundant in light
of the fairness doctrine. Petitioners therefore take too nar-
row a view of rulemaking when they contend that repeal of a
rule necessarily requires repeal of subsequent rules that
relied on the first rule. Rather, rules may have more than
one foundation or justification, not all of which may be
apparent until a more prominent rationale is challenged, such
that repealing a rule that helped to justify a subsequent rule
casts doubt on the latter rule, but does not necessarily topple
it. Under such circumstances, the agency should have an
opportunity to defend its evolving regulatory scheme rather
than face automatic judicial invalidation.
Accordingly, given the express notation in Syracuse and
what has transpired since then, petitioners fail to show that
abrogation of the fairness doctrine alone resolves the issues
presented in the instant case. The FCC's prior opinions,
including Syracuse, are relevant to the extent that the FCC
cannot inexplicably act inconsistently with them, see, e.g.,
Sangre de Cristo Communications, Inc. v. FCC, 139 F.3d 953,
958 (D.C. Cir. 1998), but they must be applied by analogy and
explanation rather than bluntly as dispositive precedent.
III.
The question remains whether the rules can survive peti-
tioners' challenge in light of the NPRM, the Fairness Report,
the Syracuse order, and petitioners' contention that changes
in the industry since 1967, including an expansion of commu-
nications outlets, undermine support for the rules. See 5
U.S.C. s 706. We first address two threshold issues, pertain-
ing to the standard of review and the burden of persuasion,
and then examine the explanation in the Joint Statement to
determine whether retention of the rules is arbitrary and
capricious under 5 U.S.C. s 706(2)(A).
A.
First, petitioners contend that, unlike opinions accompany-
ing most agency orders declining to adopt a proposed rule,
the reasoning in the Joint Statement does not warrant defer-
ence, as the FCC requests, because it does not reflect the
FCC's majority view. Rather than review the Joint State-
ment under the familiar standards of the APA, see 5 U.S.C.
s 706, petitioners would have us subject the order to some
unspecified degree of more intense scrutiny. The court's
1998 order on mandamus rejected the premise of petitioners'
contention, holding that a deadlocked vote on a proposal to
repeal a rule constitutes reviewable, final agency action in
support of the status quo. See Radio-Television News Di-
rectors Ass'n, 1998 WL 388796.6 It follows that the court
must accord the Joint Statement the same respect normally
accorded agency decisions in rulemaking proceedings. Peti-
tioners' repeated refrain that the reviewable Joint Statement
is nevertheless not worthy of "deference" misses the point of
APA review.
Under petitioners' theory, neither of the two joint state-
ments would be entitled to any deference. The court would
therefore lack a framework to guide its review; it would be
left to pick the position it favored most, in effect becoming a
phantom commissioner with power to break ties. Such sub-
jectivity would be inconsistent with the APA's limitation of
the court's role, succinctly put, to searching for faults within
an agency's reasoning rather than picking a contrary outcome
that it prefers over an otherwise permissible agency decision.
See 5 U.S.C. s 706. Petitioners' novel theory of deference
would also seemingly flout the Chenery doctrine, which limits
the court's review of an order to the rationales advanced by
an agency and would bar the free-form review that petition-
ers apparently seek. See SEC v. Chenery Corp., 318 U.S. 80,
88 (1943). Furthermore, petitioners' view overlooks the fact
that settled agency rules are entitled to a presumption of
validity such that failure to repeal them has some inherent
justification; otherwise, regulatory schemes would be danger-
ously unstable. See, e.g., Motor Vehicle Mfr. Ass'n v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 41-42 (1983). If
the force of the two dissenting commissioners' views was
insufficient to sway their colleagues, there is no reason why
__________
6 This holding is law of the case. See LaShawn v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (in banc).
the mere fact of the dissent should erase the presumption of
validity that the agency's order would normally receive.7
Second, we reject the FCC's contention that petitioners
bear the burden of explaining why the rules are not in the
public interest. The FCC's attempt to minimize its burden
might be appropriate if petitioners were appealing from deni-
al of a petition for a rulemaking to repeal an existing rule.
See, e.g., American Horse Protection Ass'n v. Lyng, 812 F.2d
1, 4-5 (D.C. 1987). But having initiated a rulemaking prem-
ised on the conclusion that the rules may not be in the public
interest and then rejected its own proposal to abrogate the
rules, the FCC bears a burden of explanation. Cf. Geller v.
FCC, 610 F.2d 973, 979-80 (D.C. Cir. 1979).
B.
The FCC appears to acknowledge its duty to explain the
reasons for its action, noting in the Joint Statement that:
__________
7 Petitioners RTNDA and NAB cite Oil, Chemical & Atomic
Workers Int'l Union v. NLRB, 46 F.3d 82, 92 (D.C. Cir. 1995), for
the proposition that a theory endorsed by only 2 of 4 commissioners
does not warrant deference. However, in that case a fractured
board developed distinct rationales for its decision interpreting and
applying the Labor Management Relations Act, and the court
therefore could not discern the policy that it was being asked to
review. See id. at 85. Here, the policy under review is clearly
discernable and operates of its own force until repealed. Moreover,
the remedy in Oil, Chemical & Atomic Workers was a remand to
establish a consensus, not de novo review. Id. at 92. A remand in
the instant case to force consensus would be pointless given the
docket's lengthy history and the commissioners' diametrically op-
posed positions.
RTNDA and NAB also note that because the FCC concedes that
the order is not binding precedent in future FCC cases, it likewise
should not be entitled to deference by the court. This argument
again misses the point of APA deference. In any event, there is no
inconsistency from the perspective of the court between permitting
the FCC to supplant rules achieved by deadlock with majority rules
and respecting the FCC's work-product, whether the result of
deadlock or majority vote.
In the end, our task in this proceeding, just as it was in
our review of the fairness doctrine, is to "make predictive
and normative judgments" about the benefits and the
burdens resulting from the two rules, and ultimately to
determine whether the benefits outweigh the burdens.
In our judgment this calculus leads us to a different
result than the one reached by the prior Commission
with respect to the fairness doctrine given the different
considerations raised by the political editorial and per-
sonal attack rules.
Joint Statement at 24 (footnotes omitted). Yet, to the extent
the FCC employed some sort of "calculus," its analysis in the
Joint Statement is opaque, relying on broad policy statements
to justify much narrower rules despite having recently reject-
ed similar policies in a related context. With only minor
modifications, the rationales discussed in the Joint Statement
could have been used, verbatim, to defend the fairness doc-
trine. In short, the FCC's analysis in the Joint Statement
bears little relation to the FCC's present and past actions.
For the sake of argument, we will assume that the Joint
Statement correctly negates the charge that the rules chill
protected expression, impose undue administrative burdens
on broadcasters, and have been rendered obsolete by the
proliferation of new media technologies and outlets. Even so,
the rules to some degree interfere with the editorial judgment
of professional journalists and entangle the government in
day-to-day operations of the media. The Supreme Court and
the FCC have noted that both effects are cause for concern,
though not fatal in moderation. See Arkansas Educ. Televi-
sion Comm'n v. Forbes, 118 S. Ct. 1633, 1639-40 (1998); FCC
v. League of Women Voters, 468 U.S. 364, 378 (1984); CBS v.
Democratic Nat'l Comm., 412 U.S. 94, 110 (1973); see also
Syracuse Peace Council, 2 F.C.C.R. at 5051-52; NPRM, 48
Fed. Reg. at 28298; Fairness Report, 102 F.C.C.R. at 190-
92.8 Because the FCC is bound to regulate in the public
__________
8 Outside the broadcast context, a regulation requiring a media
outlet to provide a right of reply to victims of personal or political
interest, see 47 U.S.C. ss 307(a), 309(a) (1994), it must explain
why the public would benefit from rules that raise these
policy and constitutional doubts; yet the Joint Statement fails
to present an adequate basis upon which to affirm retention
of the rules and dispel concerns previously raised by the FCC
itself. Although the Joint Statement recites that the rules
"serve as important components of a broadcaster's public
interest obligations," Joint Statement at 2, it does not persua-
sively explain, in light of FCC precedent, why this is so or
why less intrusive alternatives would be less desirable.
The first theory offered in the Joint Statement is that the
"rules serve the public interest by helping to ensure that the
same audience that heard the broadcast of an endorsement or
personal attack be accessible to the individual concerned."
Id. The theory relies on an unstated premise that the public
has a clear interest in hearing both sides of each issue on
which a broadcaster elects to focus. The premise is no doubt
sound. But, in abrogating the fairness doctrine, the FCC
rejected the notion that this interest automatically justifies
government intervention in the editorial processes of broad-
casters. See Syracuse Peace Council, 2 F.C.C.R. at 5050-52.
The rules therefore make sense only if there is a special
interest, greater than the general interest addressed by the
now-discarded fairness doctrine, in hearing responses to polit-
ical editorials or personal attacks. The Joint Statement
offers no such explanation. Although repeal of the fairness
doctrine could in theory have left the challenged rules intact,
the Joint Statement never presents a plausible explanation
why political editorials and personal attacks are sufficiently
meaningful to warrant regulation when other kinds of topics,
editorials, and attacks do not. The FCC generally need not
explain why it has declined to regulate something in order to
justify a particular rule, but having expressly decided to
repeal broad rules, it must explain why retaining similar
(albeit narrower) rules is appropriate.
Second, the Joint Statement justifies retention of the rules
for "precisely the same reasons" as the Supreme Court noted
__________
attacks would face more severe First Amendment constraints. See
Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 256-58 (1974).
in Red Lion. Joint Statement at 4. According to the Joint
Statement, these reasons were that, absent the rules, "station
owners and a few networks would have unfettered power to
make time available only to the highest bidders, to communi-
cate only their own views on public issues, people and candi-
dates, and to permit on the air only those with whom they
agreed." Id. (quoting Red Lion, 395 U.S. at 392).
The quoted language from Red Lion appears in the Court's
consideration of whether the political editorial and personal
attack rules were "inconsistent with the First Amendment
goal of producing an informed public capable of conducting its
own affairs." 395 U.S. at 392. The Court concluded that
there was no inconsistency. It did not purport, however, to
hold that the rules would always be in the public interest.
The mere fact that a rule is not unconstitutional does not
therefore mean that its perpetuation is not arbitrary and
capricious. Accordingly, the Joint Statement is flawed to the
extent that it relies on a thirty-year-old conclusion that the
challenged rules survive First Amendment scrutiny to justify
the decision not to repeal them in the face of modern chal-
lenges to the rules' consistency with the FCC's regulatory
mandate.
Moreover, the Joint Statement's quotation from Red Lion
rings hollow in view of the FCC's repeal of the fairness
doctrine. Licensees now have greater opportunities to "make
time available only to the highest bidders, ... communicate
only their own views on public issues, people and candidates,
and ... permit on the air only those with whom they
agree[ ]." Id. The caveat is that they must be careful not to
editorialize about candidates and not to allow personal at-
tacks. Such artful evasion of a duty to provide balanced
programming would have been far less possible when the
fairness doctrine supplemented the rules challenged here, but
is easier to accomplish today. It is therefore difficult to
conceive how retention of the rules can be for "precisely" the
reasons noted in Red Lion when those reasons were offered
for a different purpose and in the context of a now defunct
regulatory regime.
Third, the Joint Statement notes that the "scarcity of
broadcast frequencies provides a rationale for imposing public
interest obligations on broadcasters." Joint Statement at 9.
Even accepting the factual premise of this statement, it
provides no support for the specific rules under review. The
mere fact that the FCC has the power to regulate broadcast-
ers more intensely than other media does not also mean that
it may impose any obligation it sees fit. Each regulation
must be in the "public interest," 47 U.S.C. ss 307(a), 309(a),
and none can be "arbitrary" or "capricious." 5 U.S.C.
s 706(2)(A). The scarcity rationale does not address either
limit on the FCC's discretion.9
Fourth, the Joint Statement attempts to justify the chal-
lenged rules by reference to its authority under the equal
time doctrine, which provides that "[i]f any licensee shall
permit any person who is a legally qualified candidate for any
public office to use a broadcasting station, he [or she] shall
afford equal opportunities to all other such candidates for
that office in the use of such broadcasting station." 47 U.S.C.
s 315(a) (1994); see also 47 U.S.C. s 312(a)(7) (1994). Ac-
cording to the Joint Statement, the challenged rules "comple-
ment" the "policies" underlying s 315(a).10 Joint Statement
__________
9 For the same reasons, the FCC cannot rely solely on the fact
that broadcasters are "trustees of the nation's airwaves," Joint
Statement at 14, even though a trustee has less cause to complain
about onerous burdens placed upon it than would an operator of a
purely private enterprise. Although the "trustee" theory--which
derives from the government's granting of private property rights
in public resources--is distinct from theories premised on the
scarcity of broadcast spectrum, and may independently justify
regulation and reduced First Amendment scrutiny, cf. Time Warner
Entertainment Co., 105 F.3d at 724 (Williams J., joined by Ed-
wards, C.J., and Silberman, Ginsburg, and Sentelle, JJ., dissenting
from denial of rehearing in banc); CBS Inc. v. FCC, 453 U.S. 367,
394-97 (1981), simply reciting that fact cannot justify a particular
burden that the FCC imposes.
10 The FCC has developed a related rule that governs cases in
which a candidate's supporters, rather than the candidate herself,
appear on a station. See Nicholas Zapple, 23 F.C.C.2d 707 (1970).
at 11. Yet the equal time doctrine does not compel either the
political editorial or personal attack rules. Both rules apply
when the licensee itself distributes proscribed content, while
the statute contemplates situations where the licensee allows
a candidate use of the station's facilities. Moreover, the
personal attack rule applies to all attacks, not just attacks on
candidates. Thus, the challenged rules are substantially
broader than the equal time doctrine. This breadth does not
invalidate the rules, but it lessens the persuasive force of the
Joint Statement's reliance on the statute to justify its deci-
sion.11 This is particularly so because the Joint Statement
ignores the fact that the fairness doctrine also complemented
s 315(a), illustrating the point that mere consistency with a
statute does not justify a regulation; a statutory policy can be
implemented in numerous ways, but the agency is limited to
solutions that are not arbitrary and capricious.12
Fifth, the Joint Statement explains that the political edito-
rial rule:
is intended to provide citizens with the information nec-
essary to enable them to exercise their vote in a more
responsible and informed manner. In such respects, we
__________
11 Contrary to the FCC's view in its brief, Red Lion cannot
plausibly be read to hold that the statute shields these rules from
repeal. In Red Lion, the Supreme Court noted that:
When a broadcaster grants time to a political candidate, Con-
gress itself requires that equal time be offered to his oppo-
nents. It would exceed our competence to hold that the
Commission is unauthorized by the statute to employ a similar
device where personal attacks or political editorials are broad-
cast by a radio or television station.
395 U.S. at 385. This analysis states only that if the political
editorial and personal attack rules are otherwise sound exercises of
agency discretion, the statute poses no obstacle to their adoption.
12 Having rejected the significance of the equal time doctrine,
we need not consider petitioners' various contentions that the
FCC's reliance on the doctrine comes too late and with insufficient
notice.
believe that this particular rule goes to the very heart of
our democratic electoral process.
Joint Statement at 10. Few would disagree with the idea
that vibrant debate is good for democracy, but that alone
cannot explain why editorials about candidates justify federal
intervention when other types of editorials or non-editorial
programming does not. The Joint Statement's rationale
would justify numerous salutary regulations--including the
fairness doctrine--but it offers no explanation for the FCC's
choice to impose the ones at issue here. Moreover, the Joint
Statement's reasoning fails to address the concern raised in
the NPRM that nothing inherent in the nature of an editorial
necessitates countervailing speech to ensure balanced debate.
See 48 Fed. Reg. at 28,300. Many programming decisions
add to and detract from the balance within the marketplace of
ideas without regulatory consequence, but the Joint State-
ment never explains why editorials warrant special treatment.
There may be good reasons to focus on political editorials.
If broadcasters want to use public resources overtly to push a
private agenda by advocating a result in an election, a right of
reply might be a minimally intrusive means of countering a
licensee's government-granted monopoly on access to the
resource. The same could be said, however, to defend rights
of reply on many issues of public concern.13 Yet the FCC has
emphatically rejected such a broad regulatory regime. It
therefore falls on the FCC to explain why editorials about
candidates are particularly appropriate subjects for regula-
tion.
Finally, the Joint Statement justifies the personal attack
rule by noting that the airwaves should not be a "platform for
attacks on personal character," Joint Statement at 17, that
the rule is targeted to provide a limited right of reply to the
__________
13 For example, the FCC would permit a network to editorialize
about tax policy, but would constrain a network's discretion to
endorse a particular candidate based on her views about tax policy.
Likewise, a network has more freedom to endorse a ballot initiative
than to endorse a candidate championing such an initiative. The
FCC has not articulated a basis for the distinction.
same audience that heard the attack, see id. at 18, and that
the FCC only enforces the rule when a licensee acts in "bad
faith," id.14 This defense of the rule may be appealing--
personal attacks can be distasteful and detract from reasoned
discourse--but it fails to make a sustainable case for the rule.
Most troubling is the fact that the Joint Statement ignores
the concerns that the FCC raised in the NPRM about the
rule's utility. The NPRM notes that newspapers are not
bound by a similar right of reply and yet no serious conse-
quences seem to have ensued, that at least some victims
(those who are public figures) of personal attacks have suffi-
cient access to broadcast media that a right-of-reply require-
ment is unnecessary, that the rule does not apply to news-
casts and yet its inapplicability does not seem to have led to
the problems that the rule is designed to address, that the
rationale for applying the rule to non-news programming was
even less sound than applying it to newscasts, and that the
FCC lacked any "evidence that personal attacks are inherent-
ly more persuasive than other [types of] arguments."
NPRM, 48 Fed. Reg. at 28,298-99. There may be valid
responses to each of these concerns, but the Joint Statement's
conclusory assertion that the rule is a necessary prerequisite
for balanced debate on public issues is insufficient to allay the
doubts that the FCC itself previously raised. Indeed, having
in the past conceded that it lacked "evidence" that the rule
was necessary, the FCC at a minimum should point to
evidence to support the rule or explain why none is needed.15
__________
14 The FCC does not rely on the claim, questioned in its
NPRM, that the personal attack rule in and of itself fosters
discussion of controversial issues. See NPRM, 48 Fed. Reg. at
28,298. The focus now seems to be on addressing the merits of the
attack--which the FCC sees as a prerequisite to meaningful debate
on substantive topics--rather than on using the reply as a forum for
discussion of public policy. See Joint Statement at 18-19.
15 In defending the personal attack rule, the Joint Statement
notes that "once an individual's credibility is attacked, little cre-
dence will be given to his or her views on public issues." Joint
Statement at 18. Absent record support, this conclusory statement
is compelling only if one presumes that audiences are less likely to
As with the political editorial rule, there may be sound
reasons to regulate personal attacks. The problem here,
however, is that whether viewed individually or as a whole,
the explanations in the Joint Statement do not articulate
them.
C.
The foregoing deficiencies in the FCC's analysis render its
present explanation of its decision to retain the rules insuffi-
cient to permit judicial review.
First, the Joint Statement does not consider "the relevant
factors" and therefore does not satisfy the FCC's obligation
to explain the reason for its decision. Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); see also
FEC v. Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986). After
1987, the instant rulemaking proceeding should have involved
distinguishing political editorials and personal attacks, which
are regulated, from subjects formerly covered by the fairness
doctrine but that have been deregulated, such as non-editorial
political commentary, editorials on political issues aside from
candidate endorsements, and non-personal attacks. The FCC
is mostly silent on this salient question, choosing in the Joint
Statement to rebut specific attacks against the rules rather
than articulating a rationale to justify the rules in the first
instance. In other cases in which an agency suggests repeal-
ing a rule and then elects not to do so, the agency might be
able to rely on the rationale it articulated when it first
adopted the rule, and devote subsequent orders to defending
the rule from attack. Here, however, the original rationale
for the challenged rules--the fairness doctrine--has been
abrogated, and the NPRM initiating the present proceeding
acknowledged that the justification for the rules required an
"especially searching" reexamination. 48 Fed. Reg. at 28,298.
__________
think critically about personal attacks than other forms of commen-
tary and that they focus extensively on the personal peccadillos of
public figures. Neither proposition is obvious. Standing alone,
without any elaboration, quantification, or tailoring to the specific
rule at issue, it cannot justify a regulation requiring a right of reply.
Under these circumstances, an order declining to repeal a
rule must justify the rule despite the fact that the rule was
justified when initially promulgated.
Second, the FCC's explanation for retention of the rules is
inconsistent with prior FCC actions that set a very high
standard for the deliberations presently under review. The
NPRM stated:
it is evident that our reexamination of the public interest
justification for the personal attack and political editorial
rules must be especially searching. Even as a general
matter the [Communications] Act requires the Commis-
sion to refrain from interfering with licensees' editorial
judgements unless such action clearly is required in
order to further the Congressional objectives of balanced
coverage of public issues.... But where, as here, the
rules go beyond general fairness doctrine obligations to
impose specific rights [on] broadcast facilities, the statute
requires us to proceed with particular caution.
48 Fed. Reg. at 28,298. Likewise, the FCC stated that "we
are led to question the public interest justification for the
[political editorial] rule," id. at 28,299, and imposed upon itself
"a particularly heavy burden ... to justify its application."
Id. at 28,300. Having framed the present rulemaking pro-
ceeding in terms of providing a persuasive rationale for a rule
that seemed unnecessary, and having retained that frame-
work, the FCC could not simply assume in the Joint State-
ment a need for the rule and focus on rebutting specific
attacks levied against it.16 Cf. Geller, 610 F.2d at 979-80.
Such review is hardly "especially searching."
__________
16 The NPRM does not bind the FCC, which is free to adopt a
contrary position after consideration of public comments. See
Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 845
(1986). However, the NPRM frames the rulemaking proceeding,
such that failure to consider the concerns that animated the rule-
making casts doubt on the reasonableness of the agency's decision-
making process. Cf. Natural Resources Defense Council, Inc. v.
SEC, 606 F.2d 1031, 1049 n.23 (D.C. Cir. 1979).
The Joint Statement also does not reflect the significance
of the FCC's order in Syracuse, as well as the Fairness
Report on which that order was based. Although abrogation
of the fairness doctrine does not require repeal of the political
editorial and personal attack rules, it does establish an agency
precedent for declining to use the FCC's power to redress a
market failure in provision of balanced coverage of important
issues. The exercise of such power may be appropriate in the
instant case, but the agency must offer clear, cogent explana-
tions for treating the two cases differently. It is not enough
to note that one case is narrower than the other; there must
be a reason why the more focused nature of the present rules
shields them from the myriad defects that the FCC recog-
nized in Syracuse. See Greater Boston Television Corp. v.
FCC, 444 F.2d 841, 852 (D.C. Cir. 1970). A well-reasoned,
carefully documented order affirming the challenged rules
could in theory have survived notwithstanding the FCC's
vacillation, delay, and deadlock. But these factors counsel
against affirming the rules on the highly general foundation
provided in the Joint Statement in light of the FCC's prior
actions questioning that foundation. Cf. Meredith Corp. v.
FCC, 809 F.2d 863, 873 (D.C. Cir. 1987) ("An agency is not
required to reconsider the merits of a rule each time it seeks
to apply it.... Here, however, the Commission itself has
already largely undermined the legitimacy of its own rule").
Finally, the Joint Statement recognizes that the current
rules are broader than their rationales suggest, attempting to
justify the rules with explanations that do not correspond
with the rules' breadth, and failing to address whether nar-
rower rules would serve the FCC's purposes. For example,
the Joint Statement notes that scarcity in local markets
justifies a targeted right of reply to local audiences without
explaining why this rationale justifies a right of reply for
national figures.17 See Joint Statement at 23. Likewise, the
__________
17 For example, the fact that a national news network rarely
covers local state assembly races may explain why a right of reply
is necessary on a local network affiliate for a state assembly
candidate maligned by that affiliate, but it does not follow that the
Joint Statement frames its discussion of the personal attack
rule in terms of the need for individual public officials to
salvage their credibility, see id. at 17-18, yet the rule applies
to personal attacks against all persons and groups, not just
government officials. Normally, the FCC need not refute all
alternative solutions to the problems it addresses in rulemak-
ings so long as its own solution is "not irrational," Loyola
Univ. v. FCC, 670 F.2d 1222, 1227 (D.C. Cir. 1982), but having
highlighted the apparently excessive breadth of its rules, and
indicated a receptiveness to narrowing the rules, the FCC
was obliged to explain in the Joint Statement why the rules
were nevertheless desirable without modification.18
Consequently, as a matter of administrative law, the court
cannot affirm the FCC's order. Neither, however, is the
court in a position to hold on this record that the challenged
rules are inconsistent with the public interest or the First
Amendment. The FCC's failure to address relevant factors,
distinguish applicable precedents, and explain the scope of its
rules despite acknowledging that the rules might be too broad
renders meaningful judicial review impossible because the
court lacks a coherent rationale against which to weigh
petitioners' factual, policy, and constitutional claims. Peti-
tioners' claims each require the court to balance the rationale
for the rules against their consequences.19 In theory, balanc-
__________
local affiliate must also be the venue for a right of reply involving a
presidential candidate.
18 The Joint Statement expressly states that modification of the
rules would be appropriate to align more closely regulatory burdens
with regulatory purposes. See Joint Statement at 1, 15-16, 20.
The record does not indicate that the FCC has taken any steps
toward that end.
19 The First Amendment "requires a critical examination of the
interests of the public and broadcasters in light of the particular
circumstances of each case." League of Women Voters, 468 U.S. at
381. Although Red Lion affirmed the rules challenged here, the
Court recognized that changed circumstances might be salient in
future cases. See Red Lion, 395 U.S. at 393. Also, the Court since
Red Lion has increasingly focused on the editorial discretion of
ing could be avoided if the rules so obviously entailed no ill
effects that they would survive even if only marginally useful.
That, however, is not the case, as illustrated in the NPRM
and the Fairness Report. Even were the court to assume
that some of petitioners' arguments are overstated,20 the
challenged rules by their nature interfere with at least some
journalistic judgment, chill at least some speech, and impose
at least some burdens on activities at the heart of the First
Amendment. Because the court must weigh the rules' bene-
fits against their burdens, the inadequacy of the explanation
in the Joint Statement is apparent. Wooden application of
principles underlying rhetoric about the FCC's vast power, its
broad discretion, and the importance of vibrant debate in
democracy to a specific set of rules would force the court to
adopt an impressionistic approach that would disserve the
parties and muddle the First Amendment analysis. The FCC
must therefore explain its rationale for these rules in more
detail, thereby permitting the court to test that rationale
against petitioners' factual assertions and, if necessary, the
demands of the First Amendment.
IV.
As explained in Part II, there is nothing inherently incon-
sistent about preserving the two challenged rules despite
abrogation of the fairness doctrine. Although the arguments
that the FCC found persuasive in Syracuse and the Fairness
Report apply on their face to the two challenged rules,
petitioners have not explained why the FCC would be incapa-
__________
broadcasters, see, e.g., Arkansas Educational Television Comm'n,
118 S. Ct. at 1639, indicating that while the Red Lion framework
may still be good law, its application to the instant rules may
require updating. See also Fairness Report, 102 F.C.C.2d at 156
(critiquing the scarcity rationale).
20 We note that while the Joint Statement expressly rejects a
1982 survey cited by petitioners that relied on old and possibly
flawed data to show a chilling effect on editorializing, the FCC
offered no updated or more credible information to the contrary.
Joint Statement at 14.
ble, within the bounds of its discretion and expertise, of
distinguishing the present context from what it confronted in
Syracuse. Although we hold that the FCC adopted far too
sanguine a view of its burden of persuasion, and relied in part
on overly broad arguments that appear to ignore its prior
analysis of the challenged rules and of the fairness doctrine,
the inadequacy of the FCC's order precludes meaningful
judicial review of petitioners' claims that the rules on the
merits cannot survive; we therefore do not reach such claims.
There is a fine line between agency reasoning that is "so
crippled as to be unlawful" and action that is potentially
lawful but insufficiently or inappropriately explained. Check-
osky v. SEC, 23 F.3d 452, 464 (D.C. Cir. 1994) (opinion of
Silberman, J.). In the former circumstance, the court's prac-
tice is to vacate the agency's order, while in the later the
court frequently remands for further explanation (including
discussion of relevant factors and precedents) while withhold-
ing judgment on the lawfulness of the agency's proposed
action. See id. at 463-64; International Union, United Mine
Workers of America v. Federal Mine Safety & Health Ad-
min., 920 F.2d 960, 966-67 (D.C. Cir. 1990).21 Remand is
generally appropriate when "there is at least a serious possi-
bility that the [agency] will be able to substantiate its deci-
sion" given an opportunity to do so, and when vacating would
be "disruptive." Allied-Signal, Inc. v. United States Nuclear
Regulatory Comm'n, 988 F.2d 146, 151 (D.C. Cir. 1993).
Here, two commissioners and some commentators, includ-
ing intervenors and amici,22 maintain that the rules continue
__________
21 Unlike in the cited cases, petitioners here request that the
court do more than set aside the order under review (which would
leave the status quo intact), contending that the court should "direct
the Commission" to "eliminate" or "repeal" the personal attack and
political editorial rules. Because the court remands, we need not
address the full scope of our remedial authority in cases where an
agency order in a rulemaking initiated to consider repealing or
modifying an existing rule fails to justify the rule.
22 See briefs filed by the Media Access Project on behalf of
intervenors--the Office of Communication, Inc., of the United
to serve an important purpose, and the FCC may uphold
them again once it conforms its analysis to the principles
discussed in Part III. Whether the newly-defended rules
would survive judicial review is an open question, but is
sufficiently possible to justify remand rather than a more
severe remedy. The delay and deadlock in this case may
militate in favor of final resolution now, see Checkosky v.
SEC, 139 F.3d 221, 226 (D.C. Cir. 1998), but because the rules
have been in force for more than thirty years, the more
prudent course is to leave the present regulatory regime in
effect and order the FCC to provide a more detailed de-
fense--and possibly modifications as well--sufficient to per-
mit meaningful judicial review. The FCC retains discretion
to commence a new rulemaking, or to reopen the record, to
ensure that it fully accounts for relevant factual and legal
developments since 1983, cf. United Mine Workers v. Dole,
870 F.2d 662, 674 (D.C. Cir. 1989), but is not compelled to do
so.23 In any event, the FCC on remand must address at least
the concerns it raised in its NPRM, the Fairness Report, and
the Syracuse order, and must supplement its analysis with
record evidence showing a fit between its policy preferences
and the actual communications market in which the rules
operate.
Accordingly, we grant the petitions for review and remand
the case to afford the FCC an opportunity to provide an
__________
Church of Christ, the Center for Media Education, the Washington
Area Citizens' Coalition Interested in Viewers' Constitutional
Rights, Peggy Charren, and Henry Geller--and by amicus curiae
Safe Energy Communication Council. The briefs emphasize the
rule's early origins, the viability of a scarcity rationale, and the
importance of the rules to assure balanced coverage of local election
issues.
23 A new rulemaking, accomplished expeditiously, would permit
the FCC to work from a relatively clean procedural slate, consider
modern factual and legal developments, and obtain comments on
specific proposals to modify the rules. In practice, this might be
the preferred way to create a record capable of rebutting petition-
ers' attacks, but we leave to the FCC the decision of how to proceed
on remand.
adequate justification for retaining the personal attack and
political editorial rules, and for such proceedings as the FCC
may determine are appropriate to implement this mandate.
Given its prior delay in this proceeding, the FCC need act
expeditiously. See United Mine Workers, 920 F.2d at 967.