Radio-Television News Directors Ass'n v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed October 11, 2000

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 Motion to Recall the Mandate
or for an Order Pursuant to 47 U.S.C. s 402(h),
or a Writ of Mandamus to Compel Agency Action

---------

 Before: Edwards, Chief Judge and Rogers, Circuit Judge.1

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: The court is presently asked to
order the vacation of the personal attack and political editori-
al rules adopted by the Federal Communications Commission
in 1967 as corollaries to the fairness doctrine, which the
Commission abandoned in 1985.2 See Motion to Recall the
Mandate or For an Order Pursuant to 47 U.S.C. s 402(h), or
a Writ of Mandamus to Compel Agency Action, filed July 6,
2000 ("Motion for Mandamus"). In deference to the Com-
mission's response in opposition, the court held in abeyance
consideration of the Motion for Mandamus until September
29, 2000, instructing that if the Commission had not acted by
that date, petitioners could supplement their request and seek
appropriate action from the court. On October 2, 2000,
petitioners filed an Emergency Motion, Supplement to Mo-
tion to Recall Mandate or For an Order Pursuant to 47
U.S.C. s 402(h) or a Writ of Mandamus to Compel Agency
Action ("Emergency Motion").

The court has previously recounted the chronology of
events, now exceeding twenty years when in response to a
1980 petition to vacate the rules, nothing happened for long
periods of time. See Radio-Television News Dirs. Ass'n v.
FCC, 184 F.3d 872 (D.C. Cir. 1999) ("1999 Radio-
Television"). The court did, however, acknowledge that the
rules "interfere with editorial judgment of professional jour-
nalists and entangle the government in day-to-day operations
of the media," id. at 881, and "chill at least some speech, and
impose at least some burdens on activities at the heart of the
First Amendment." Id. at 887. Consequently, the court held
that it was incumbent upon the Commission to "explain why
the public interest would benefit from rules that raise these
policy and constitutional doubts." Id. at 882.

In December 1999, following the denial of rehearing and
rehearing en banc, the court remanded the case to the
Commission, stating that the Joint Statement by the two

__________
1 Judge Wald was originally a member of the panel.

2 See 47 C.F.R. ss 73.1920, 73.1930, 76.209(b)-(d)(1999).

Commissioners in support of the rules was inadequate to
permit judicial review. Id. at 881-85. The court instructed
the Commission's two-member majority to explain its support
of the personal attack and political editorial rules in light of
the Commission's conclusion in 1985 that the fairness doctrine
was not in the public interest and its decision in 1987 not to
enforce the fairness doctrine. Id. at 889. The court also
stated that given prior delay, the Commission must act
expeditiously on remand. Id. at 889. In so doing, however,
the court did not doubt its authority to grant relief. Id. at
888. Although the Commission advised in response to the
petition for rehearing and rehearing in banc, filed September
28, 1999, that a prompt decision by it was needed and that it
could commence a new proceeding, see Response to Petition
for Rehearing and Rehearing En Banc at 6, and also sought
additional time to act in opposing the pending motion, see
FCC Response to Motion for Mandamus, filed July 18, 2000,
at 3, as of September 29, 2000, the Commission had failed to
advise the court that it had acted, much less commenced a
proceeding and petitioners represented that no such action
has been taken. See Emergency Motion at 16. Consequent-
ly, the two rules continued to exist in a vacuum, unsupported
by reasoning that would demonstrate to the court that they
are in the public interest notwithstanding some interference
with and some burdens on speech.

On October 4, 2000, the Commission responded to the
Emergency Motion advising that on that date the Commis-
sion, over two dissents, had issued an Order temporarily
suspending the rules for 60 days, effective immediately. See
Order and Request to Update Record, 2000 WL 1468707 p 1
("Order").3 In the Order, the Commission requested broad-
casters and others to report on their actions during the
suspension period and to provide, within sixty days after the
reinstatement of the rules on December 3, 2000, evidence to
assist the Commission in reviewing the rules and in respond-

__________
3 Commissioners Harold W. Furchtgott-Roth and Michael K.
Powell dissented and issued separate statements. See Order, 2000
WL 1468707.

ing to the court's opinion. See id. p p 8-13. In view of its
Order, the Commission contends that the motion for manda-
mus is now moot. See Response to Emergency Motion at 1.
The matter is not so simple, however.

Neither the timing nor the substance of the Order responds
to the court's remand order in 1999 Radio-Television. From
the silence of the Commission until October 4, 2000, and the
statements of the two dissenting Commissioners, it can rea-
sonably be inferred that until the court's order of July 24,
2000, responding to the Motion for Mandamus, the Commis-
sion had taken no action to respond to the remand.4 Consis-
tent with the decision of the court, the two Commissioners
supporting the rules could have submitted a new justification
with or without new data, or the Commission could have
commenced a new proceeding to gather such data. The
separate statement of Commissioner Powell indicates that the
deadlock might not have persisted had some intermediary
steps been proposed.5 On this record, the court can only
conclude that its remand order for expeditious action was
ignored.6

__________
4 Commissioner Furchtgott-Roth states that he was not ap-
proached about acting on the matter until early September 2000.
See Separate Statement of Commissioner Furchtgott-Roth, Order,
2000 WL 1468707. Similarly, Commissioner Powell states that no
one proposed a new proceeding to him in the months since the
court's remand. See Separate Statement of Commissioner Powell,
Order, 2000 WL 1468707. Chairman Kennard's announcement that
he would no longer recuse himself from "participat[ing] in the
proceeding" did not occur until September 18, 2000. See Statement
of FCC Chairman William E. Kennard Concerning his Partic-
ipation in the Personal Attack and Political Editorial Rule Pro-
ceeding (September 18, 2000) .

5 See Separate Statement of Commissioner Powell, Order, 2000
WL 1468707.

6 See also s 402(h), which provides:

In the event that the court shall render a decision and enter an
order reversing the order of the Commission, it shall remand

Be that as it may, the court is now confronted with the
October 4th Order. Clearly, the Order is not responsive to
the court's remand. The Commission still has not provided
adequate justification for the rules, and in its Order provides
no assurance that it will do so. The suspension of the rules
for 60 days simply has the effect of further postponing a final
decision by the Commission. Incredibly, the Order reinstates
the rules before the Commission will have received any of the
updated information that the Commission states it requires in
order to evaluate the rules. See Order p 7. Thus, notwith-
standing the Commission's continuing failure to provide ade-
quate justification, as of December 3, 2000, petitioners would
again be subject to the rules that they have contended since
1980 have serious consequences and that the court has ac-
knowledged have some effect on speech and cause some
interference with broadcasters' editorial judgments. The Or-
der provides no assurance whatsoever that the Commission
will proceed expeditiously once it receives the requested
information. It follows that petitioners' Motion for Manda-
mus is not moot. See County of Los Angeles v. Davis, 440
U.S. 625, 631 (1979); Delta Air Lines, Inc. v. CAB, 674 F.2d
1, 4 (D.C. Cir. 1982).

In other words, it is folly to suppose that the 60-day
suspension and call to update the record cures anything. As
petitioners point out in their Reply to the FCC Response to
the Emergency Motion, the Commission updated the record
four years ago and still did not provide an adequate justifica-
tion for the rules. See id. at 2. Apparently the Commission
views the presidential election period as a particularly good
opportunity to gauge the effect of the rules. See Order p 7.
The rules, once reinstated, will be effective year-round. Pre-

__________
the case to the Commission to carry out the judgment of the
court and it shall be the duty of the Commission, in the absence
of the proceedings to review such judgment, to forthwith give
effect thereto, and unless otherwise ordered by the court, to do
so upon the basis of the proceedings already had and the
record upon which said appeal was heard and determined.

47 U.S.C.A. s 402(h) (West 1991) (emphasis added).

termitting whether the requirement of the First Amendment
suggested by the Order is skewed,7 not only does the Order
provide short notice for broadcasters to change their plans,
but their conduct will in any event be affected by the fact that
the rules will be reinstated on December 3, 2000. In short,
the October 4th Order compounds the problems, affording no
relief to petitioners and no assurance that final action is
imminent, much less to be expeditiously accomplished. The
petition to vacate the rules has been pending since 1980, and
less stalwart petitioners might have abandoned their effort to
obtain relief long ago. If these circumstances do not consti-
tute agency action unreasonably delayed, see Telecommunica-
tions Research and Action Ctr. v. FCC, 750 F.2d 70, 79-81
(D.C. Cir. 1984), it is difficult to imagine circumstances that
would.

In these extraordinary circumstances, the court's decision
is preordained and the mandamus will issue. Cf. Calderon v.
Thompson, 523 U.S. 538, 550 (1998). The court has afforded
repeated opportunities for the Commission to take final ac-
tion. Despite its filings suggesting to the court that something
would happen, the Commission, once again, has done nothing
to cure the deficiencies of which it has been long aware. Of
course, the Commission may institute a new rule-making
proceeding to determine whether, consistent with constitu-
tional constraints, the public interest requires the personal
attack and political editorial rules. These are issues that the
court has yet to decide. Nevertheless, extraordinary action
by the court is warranted in this case, particularly in view of
the fact that the six reasons proffered in support of the rules
were all wanting. See 1999 Radio-Television, 184 F.3d at
881-85. The Commission has delayed final action for two
decades, to the detriment of petitioners. While it acknowl-
edged the need for a prompt decision, the Commission failed
to act for nine months. Finally, its response consists of an

__________
7 See Separate Statement of Commissioner Furchtgott-Roth,
Order, 2000 WL 1468707; Separate Statement of Commissioner
Powell. Id.

order that further postpones a final decision without any
assurance of a final decision.

Accordingly, the court hereby recalls its mandate and
issues a writ of mandamus directing the Commission immedi-
ately to repeal the personal attack and political editorial rules.