concurring in part and dissenting in part:
Petitions to deny renewal of license were filed in this case with respect to seven commercial television stations, and one noncommercial public educational licensee, in the Los Angeles area. The opinion for the court affirms the FCC’s action in disallowing such petitions — and renewing the licenses for the maximum permissible term — in the case of the seven commercial licensees. I concur in that result, but in doing so I cannot be unaware of the vastly different burden imposed on the educational station by reason of the court’s remand for hearing of the petition to deny directed to the renewal of its license.
The licensing period in question, by reference to which renewals were sought, is the same for each of the eight stations, namely, 1974 to 1977. The differing treatment by this court of the petitions to deny renewal beyond that period results because of the court’s holding that the non-commercial station, KCET-TV, is receiving financial assistance from the federal government within the meaning of § 504 of the Rehabilitation Act of 1973, Pub.L.No.93-112, 87 Stat. 357, as amended, 29 U.S.C. § 794 (1976), whereas the seven commercial stations are not. Although the court expressly states that, by reason of the “public interest” standard contained in the Federal Communications Act, it does not regard the latter stations as home free from licensee renewal challenges in the future from representatives of the hearing-impaired, it expressly notes that rulemaking, as distinct from license renewal proceedings, “might be a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing.”
I agree, but I would not, in disposing of this case, limit that principle to commercial *204stations. It also comports with the steps that have been taken to implement § 504 of the Rehabilitation Act. The Executive Branch of the Government, generally charged by the Constitution with enforcement of laws enacted by Congress, in 1976 assigned the responsibility for developing compliance standards for § 504 to the Department of Health, Education, and Welfare. The Department at length concluded that § 504 was applicable to non-commercial broadcast licensees, and it directed that its Office of Civil Rights develop compliance standards for such licensees. Under the Department of Education Reorganization Act, Pub.L.No.96-88, 93 Stat. 691 (1979), the newly-created Department of Education took over that responsibility; and the HEW study group involved in preparing compliance guidelines for public TV licensees was transferred to it.
On January 19, 1981, the Department of Education issued a Notice of Intent to Develop Regulations relating to the rights of access of the hearing-impaired to television programs, 46 Fed.Reg. 4954, inviting comments by March 5, 1981.1 The Federal Communications Commission represents that, when such guidelines become available, it stands ready to take them fully into account in subsequent license renewal proceedings. And obviously the relevance of such guidelines in defining “the public interest” in the case of commercial license renewals will be very great indeed, even if they should be confined in terms to noncommercial stations.
Pending the issuance of such guidelines, I do not see why the benefits of their prospective operation should not extend to all licensees seeking renewal, commercial and non-commercial alike. Although it may be true, as we hold today, that the “financial assistance” from the Federal Government contemplated by the Congress in the Rehabilitation Act does not comprehend the existing free use of the publicly-owned airwaves by all licensees, form is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a non-commercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing-impaired.
. In addition to seeking denial of license renewal by the FCC, appellants have been simultaneously pursuing a suit in the. United States District Court for the Central District of California seeking (1) to enjoin KCET-TV from broadcasting any program that is not open-captioned and (2) to cut off the distribution of federal funds to KCET-TV. Civil No. CV-78-4715-R (C.D.Cal.). The District Court after trial, on March 20, 1980, ordered the Department of Education to issue final regulations not later than November 17, 1980. The District Court on November 24, 1980 modified its order so as to enlarge the time until February 17, 1981. The Court of Appeals for the Ninth Circuit, on December 19, 1980, stayed the order as modified pending appeal. It also directed the appeal to be expedited, and calendared for hearing as soon as-practicable after the appellee’s brief is filed.