dissenting:
It is arguable whether the F.C.C. has met the standards for notice required by 5 U.S.C. 553(b)(3). That standard requires that “the parties had fair notice of exactly what the Commission proposed to do, and were given an opportunity to comment, to object or to make some other form of written submission.” U. S. v. Florida East Coast R. Co., 410 U.S. 224, 241, 93 S.Ct. 810, 819, 35 L.Ed.2d 223 (1973).
If this were the only shortcoming of the agency’s procedures, I could be persuaded, nevertheless, in view of the representative industry participation in previous hearings to agree with the majority opinion concerning the adequacy of notice. The manner in which the Commission abruptly effected a reversal of position, however, demonstrates a total failure to engage in reasoned decision-making, and I am compelled to dissent.
Agencies are competent to change their position in light of new developments and reconsiderations, but such a change creates a duty to explain departures from prior norms. The Supreme Court in Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973), stated:
Whatever the ground for the departure from prior norms; it must be clearly set forth so that the reviewing court may understand the basis of the agency’s action and so may judge the consistency of that action with the agency’s mandate.
Such a standard of agency action has not been met by the Commission.
The initial nonduplication rules were established in the Commission’s First Report and Order in Dockets 14895 and 15238, 38 F.C.C.2d 683 (1965). This rule-making with respect to a possible change in significantly-viewed signal policy began with the Notice of Inquiry and Proposed Rule Making, Docket 19995, 46 F.C.C.2d 1164 (April 3, 1974). As a result of this notice the Commission took the position in its First Report and Order, Docket 19995, 52 F.C.C.2d 519, 537 (1975):
In short, the designation of a signal as being significantly viewed is, by itself, inadequate to exempt it from our nondu-plication rules. We recognize, however, that there may be situations in which the network programming of such signals should not be deleted. Accordingly, we intend in the near future to develop a standard so that such signals are not subject to deletion.
To develop this implied exceptions standard, the Commission then issued its Further Notice of Proposed Rule Making, Docket 19995, 40 Fed.Reg. 34395 (1975). The stated purpose of this notice was: “to set a standard which will prevent those television signals, commonly viewed in non-cable households of a cable community, from being blacked out because of mileage priorities.” (emphasis added). Id. at 34396.
This “commonly viewed” standard was stated to include stations at least significantly viewed and, in all probability, consisting of stations that are both significantly viewed and which have a share of total viewing hours equal to or greater than a protected signal.
Wide participation from the industry resulted. The Further Notice was followed by the Third Report and Order in Docket 19995, 62 F.C.C.2d 99 (Nov. 17, 1976) which rejected the proposed rule changes on the traditional basis of fear of adverse local television impact.
The comments have made it clear to us that there are significant risks to local broadcast service inherent in the rule change proposed and that there is no substantial advantage to cable subscribers in terms of service they receive. .
62 F.C.C.2d at 102.
In adopting special individual relief procedures, the Commission stated that the “situations which led us to adopt the Further Notice are so diverse that they simply cannot be treated by a single across-the-board standard.” 62 F.C.C.2d at 102.
Subsequently, the Moscow-Pullman pétition for reconsideration was filed and noticed in December, 1976. The specific relief requested by Moscow-Pullman was an ex*324ception in the rules allowing nonduplication rights to satellite stations.1 This petition drew comments from only three parties. This, arguably at least, was due to the limited, specific relief requested.
Following a long delay, the Commission released their Memorandum Opinion and Order, Docket 19995, 67 F.C.C.2d 1303, on March 22, 1978. The Commission, in short form, reversed its past positions, granted significantly viewed stations full status as local stations, and exempted their stations from “blackout” or nonduplication rules. The sole justification stated in the three page memorandum was:
In the Third Report and Order, the Commission in balancing the factors, used in the traditional framework of local station versus distant station, deciding that the local station should be protected absent grounds for waiver. On reconsideration, we believe it is more accurate to view this as a local station versus local station situation.
Id. at 1305.
The role of an appellate court is to review rulemaking decisions on the basis of the relevant factors present and to determine whether the agency has “articulated a rational connection between the facts found and the choice made.” Office of Communication v. F.C.C., 560 F.2d 529 (2nd Cir. 1977). Shifts in agency position are permissible but the court must inquire “whether the Commission articulated with reasonable clarity a rational basis for its change of view.” Larus & Brother Co. v. F.C.C., 447 F.2d 876, 879 (4th Cir. 1971); See also Columbia Broadcasting System, Inc. v. F.C.C., 454 F.2d 1018, 1026 (D.C.Cir.1971); Greater Boston Television Corp. v. F.C.C., 444 F.2d 841 (D.C.Cir.1970). The caveat to permissible agency latitude so well stated in Greater Boston Television Corporation v. F.C.C. forcefully casts these proceedings into proper perspective. The Court, in discussing when court intervention is proper, states supervision is necessary
not merely in case of procedural inadequacies, or bypassing of the mandate in the legislative charter, but more broadly if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a “hard look” at the salient problems, and has not genuinely engaged in reasoned decision-making. . . . ,If satisfied that the agency has taken a hard look at the issues with the use of reasons and standards, the court will uphold its findings, though of less than ideal clarity, if the agency’s path may reasonably be discerned. .
Id. at 851.
The Commission’s previous rules and policies were emphatic. There would be “significant risk” in treating significantly viewed distant stations as local stations. It now accepts treatment in that exact manner but does not explain how the risk is diminished or why the Commission’s views as to risk have changed. In April, 1975, there was inadequate reason for the rule put into effect in March, 1978, without explanation of the changing circumstances that now makes the rule advantageous. In November, 1976, the situation was so diverse as to defy inclusion in one rule. It was then adopted in March, 1978, without explanation as to how the problem became sufficiently unified so that it could be governed by the single rule.
An agency changing its past precedence has a stricter duty of articulation in rule-making than in the initial rule formulation. Although a change is permissible,
an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.
Greater Boston Television Corp. at 851.
The deficiency of the notice, the emphatic absolutism of its prior rulings, the short time lapse between the change in the rule, the abrupt, brief and essentially unex*325plained final decision of 1978, signal that the Commission based its final decision on substantive reasons not available for review by this Court, and it is not possible to discern the agency policy effecting its decision.
It is true that if this case were remanded, the F.C.C. might well display evidence not previously discussed or might sufficiently articulate its changed reasoning on some other basis and promulgate anew the same rule. On the other hand, forced to such articulation, it might not be capable of sustaining its reasoning. We may well surmise that the agency had a reasonable basis for regulating competition between broadcast television stations and cable television stations but Congress has placed the responsibility of determining a reasonable basis on the F.C.C. — not on the basis of surmise, but on the basis of deliberate fact-finding and reasoned decision making.
I respectfully dissent.
. Satellite stations merely simultaneously rebroadcast programs of a distant parent station.