FEDERAL COMMUNICATIONS COMMISSION ET AL. v. WNCN LISTENERS GUILD ET AL. No. 79-824 SUPREME COURT OF THE UNITED STATES November 3, 1980, Argued March 24, 1981, Decided * * Together with No. 79-825, Insilco Broadcasting Corp. et al. v. WNCN Listeners Guild et al.; No. 79-826, American Broadcasting Cos., Inc., et al. v. WNCN Listeners Guild et al.; and No. 79-827, National Association of Broadcasters et al. v. WNCN Listeners Guild et al., also on certiorari to the same court. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. DISPOSITION: 197 U. S. App. D. C. 319, 610 F.2d 838, reversed and remanded. View References Turn Off Lawyers\' Edition Display DECISION: FCC Policy Statement concluding that reliance on market is best method of promoting diversity in entertainment format and change in entertainment programming is not material factor to be considered in ruling on license renewal or transfer, held not inconsistent with Communications Act of 1934 (47 USCS 309(a), 310(d)) and constitutionally permissible means of implementing Act\'s public interest standard. SUMMARY: The Federal Communications Commission, pursuant to its informal rulemaking authority, issued a Policy Statement (60 FCC2d 858, reconsideration denied (1977) 66 FCC2d 78) concluding that the public is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer. A number of citizen groups interested in fostering and preserving particular entertainment formats petitioned for review of the Policy Statement in the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals, sitting en banc, held that the Commission\'s Policy Statement was contrary to the Communications Act of 1934 (47 USCS 151 et seq.). The court questioned whether the Commission rationally and impartially re-examined its position and stated, in response to the Commission\'s criticisms of the court\'s format doctrine, that the market only imperfectly reflects listener preferences, that the Commission is statutorily obligated to review format changes whenever there is strong prima facie evidence that the market is in fact broken down, that the administrative problems posed by the format doctrine were not insurmountable, that the Commission had not demonstrated that the format doctrine would deter innovative programming, and that the court\'s prior decisions did not direct the Commission to engage in censorship, to impose common carrier obligations on licensees, to interfere with licensee programming choices, or to force retention of existing format, but merely stated that the Commission had the power to consider a station\'s format in deciding whether license renewal or transfer would be consistent with the public interest (197 US App DC 319, 610 F2d 838). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by White, J., joined by Burger, Ch. J., and Stewart, Blackmun, Powell, Rehnquist and Stevens, JJ., it was held that the Federal Communications Commission\'s Policy Statement (1) was not inconsistent with the Communications Act (47 USCS 309(a), 310(d)), since (a) the Commission provided a rational explanation for its conclusion that reliance on the market was the best method of promoting diversity in entertainment formats, (b) the Commission\'s judgment regarding how the public interest is best served was entitled to substantial judicial deference and the Commission\'s implementation of the public interest standard, when based on a rational weighing of competing policies, was not to be set aside by the Court of Appeals, and (c) the legislative history of the Act did not support the Court of Appeals\' position that the public interest standard requires format regulation by the Commission and provides insufficient basis for invalidating the Commission\'s construction of the Act, and (2) was a constitutionally permissible means of implementing the Act\'s public interest standard within the meaning of the First Amendment. Marshall, J., joined by Brennan, J., dissented, expressing the view that in certain limited circumstances, the Commission may be obliged to hold a hearing to consider whether a proposed change in a licensee\'s entertainment program format is in the public interest and that the Commission\'s Policy Statement should be vacated since it did not contain a safety valve procedure that allowed the Commission the flexibility to consider applications for exemptions based on special circumstances and since it failed to provide a rational explanation for distinguishing between entertainment and nonentertainment programming for purposes of requiring Commission review of format changes. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers\' Edition: COMMUNICATIONS §16 CONSTITUTIONAL LAW §955 FCC policy statement -- Communications Act -- factors considered in licensing -- change of entertainment programming -- Headnote: [1A] [1B] [1C] [1D] [1E] [1F] The Federal Communications Commission\'s Policy Statement, which concludes that the public interest is best served by promoting diversity in entertainment format through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer, is not inconsistent with the Communications Act of 1934 (47 USCS 309(a), 310(d)) on the alleged grounds (1) that rather than carrying out its duty to make a particularized public interest determination on every application that comes before it, the Commission, by invariably relying on market forces, merely assumes that the public interest will be served by changes in entertainment format, (2) that there will be some format changes that will be detrimental to the public interest, because there is no safety valve procedure, so that inflexible application of the Commission\'s Policy Statement would be inconsistent with the Commission\'s duties, or (3) that since the Commission has responded to listener complaints about nonentertainment programming, it should also review challenged changes in entertainment format; the Policy Statement does not conflict with the First Amendment rights of listeners to receive suitable access to social, political, esthetic, moral, and other ideas and experience. (Marshall, and Brennan, JJ., dissented from this holding.) COMMUNICATIONS §16 Communications Act -- powers of FCC -- licensing -- public interest -- Headnote: [2] Sections 309(a) and 310(d) of the Communications Act of 1934 (47 USCS 309(a), 310(d)) empower the Federal Communications Commission to grant an application for license transfer or renewal only if it determines that the public interest, convenience, and necessity will be served thereby. COMMUNICATIONS §8 Communications Act -- public interest -- Headnote: [3A] [3B] [3C] The Communications Act of 1934 (47 USCS 151 et seq.) provides in general terms that the Federal Communications Commission shall perform administrative functions as public convenience, interest, or necessity requires, but neither defines the term \"public interest, convenience and necessity,\" nor specifies how the Commission should make its public interest determinations. COMMUNICATIONS §12 Communications Act -- public interest -- exercise of discretion by FCC -- Headnote: [4] The public interest standard of the Communications Act of 1934 (47 USCS 151 et seq.) is a supple instrument for the exercise of discretion by the Federal Communications Commission, which is the expert body Congress has charged to carry out its legislative policy. COMMUNICATIONS §8 Communications Act -- goal -- Headnote: [5] The goal of the Communications Act of 1934 (47 USCS 151 et seq.) is to secure the maximum benefits of radio to all the people of the United States. COMMUNICATIONS §12 FCC discretion -- judicial substitution of views -- Communications Act -- Headnote: [6] Congress has granted the Federal Communications Commission broad discretion in determining how the goal of the Communications Act of 1934 (47 USCS 151 et seq.)--to secure the maximum benefits of radio to all the people of the United States--can best be achieved, and the United States Supreme Court declines to substitute its own views on the best method of encouraging effective use of the radio for the views of the Commission. COMMUNICATIONS §20 FCC policy statement -- public interest standard -- factors considered -- reasonableness -- Headnote: [7A] [7B] The Federal Communications Commission\'s general rulemaking authority permits it to implement its view of the public interest standard of the Communications Act of 1934 (47 USCS 151 et seq.) so long as that view is based on consideration of permissible factors and is otherwise reasonable and the Commission\'s position in its Policy Statement, which concludes that the public is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer, reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. COMMUNICATIONS §21 FCC decisions -- factual support -- judgment and prediction -- Headnote: [8] The Federal Communications Commission\'s decisions must sometimes rest on judgment and prediction rather than pure factual determination so that complete factual support for the Commission\'s ultimate conclusions is not required. COMMUNICATIONS §21 FCC policy statement -- rational explanation -- public interest -- Headnote: [9A] [9B] The Federal Communications Commission provides in its Policy Statement a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats (1) by reasoning that when a station changes its format, other stations will change their formats to attract listeners who preferred the discontinued format, (2) by emphasizing the value of intra-format as well as inter-format diversity and (3) by stating that government intervention is likely to deter innovative programming; in making these judgments, the Commission does not forsake its obligation to pursue the public interest, but assesses the benefits and the harm likely to flow from government review of entertainment programming and on balance concludes that its statutory duties are best fulfilled by not attempting to oversee format changes. (Marshall, and Brennan, JJ., dissented from this holding.) COMMUNICATIONS §21 FCC policy statement -- predictions -- institutional competence -- Headnote: [10] The Federal Communications Commission\'s decision in its Policy Statement which concludes that the public is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer is in major part based on predictions as to the probable conduct of licensees and the functioning of the broadcasting market, and these predictions are within the institutional competence of the Commission. COMMUNICATIONS §25 FCC judgment -- public interest -- judicial deference -- Headnote: [11] The Federal Communications Commission\'s judgment regarding how the public interest is best served is entitled to substantial judicial deference, and the Commission\'s implementation of the public interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals. COMMUNICATIONS §21 FCC policy statement -- Communications Act -- journalistic discretion -- public interest -- Headnote: [12] The Federal Communications Commission\'s Policy Statement, which concludes that the public is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer, is in harmony with the Communications Act of 1934 (47 USCS 151 et seq.) which seeks to preserve journalistic discretion while promoting the interests of the listening public. STATUTES §145.4 Communications Act -- legislative history -- FCC\'s construction -- Headnote: [13] The legislative history of the Communications Act of 1934 (47 USCS 151 et seq.) does not support the Court of Appeals\' position that the public interest standard requires format regulation by the Federal Communications Commission and provides insufficient basis for invalidating the Commission\'s construction of the Act. STATUTES §155 administrative construction -- Headnote: [14] The construction of a statute by those administrators charged with its execution should be followed unless there are compelling indications that it is wrong. COMMUNICATIONS §16 STATUTES §158.1 Communications Act -- FCC licensing -- conformity to judicial decision -- traditional construction -- Headnote: [15] Although the Federal Communications Commission was obliged to modify its policies to conform to the Court of Appeals\' doctrine requiring Commission review of any application for a license transfer or renewal involving a substantial change in program format, the Commission\'s Policy Statement, which concludes that the public is best served by promoting diversity in entertainment formats through market forces and competition among broadcasters and that a change in entertainment programming is therefore not a material factor that should be considered by the Commission in ruling on an application for license renewal or transfer, reasserts the Commission\'s traditional construction of the Communications Act of 1934 (47 USCS 151 et seq.) and preference of achieving diversity in entertainment programming through market forces. COMMUNICATIONS §16 diversity in programming -- FCC discretion -- Headnote: [16] The United States Supreme Court approves of the Federal Communications Commission\'s goal of promoting diversity in radio programming, but the Commission is vested with broad discretion in determining how much weight should be given to that goal and what policies should be pursued in promoting it. COMMUNICATIONS §21 FCC -- altering rule -- Headnote: [17] The Federal Communications Commission should be alert to the consequences of its policies and should stand ready to alter its rule if necessary to serve the public interest more fully. CONSTITUTIONAL LAW §938 First Amendment -- entertainment formats -- FCC review -- Headnote: [18] Although observing that the interests of the people as a whole were promoted by debate of public issues on the radio, the United States Supreme Court does not imply that the First Amendment grants individual listeners the right to have the Federal Communications Commission review the abandonment of their favorite entertainment formats. SYLLABUS: Sections 309 (a) and 310 (d) of the Communications Act of 1934 (Act) empower the Federal Communications Commission (FCC) to grant an application for renewal or transfer of a radio broadcast license only if it determines that \"the public interest, convenience, and necessity\" will be served thereby. In implementation of these provisions, the FCC, pursuant to its rulemaking authority, issued a Policy Statement concluding, with respect to ruling on applications for license renewal or transfer, that the public interest is best served by promoting diversity in a radio station\'s entertainment formats through market forces and competition among broadcasters and that review of an applicant station\'s format changes was not compelled by the Act\'s language or history, would not advance the radio-listening public\'s welfare, and would deter innovation in radio programming. On respondent citizen groups\' petition for review of the Policy Statement, the Court of Appeals held that it violated the Act, concluding that the [***2] FCC\'s reliance on market forces to develop diversity in programming was an unreasonable interpretation of the Act\'s public-interest standard, and that in certain circumstances the FCC is required to regard a change in entertainment format as a substantial and material fact requiring a hearing to determine whether a license renewal or transfer is in the public interest. Held: The FCC\'s Policy Statement is not inconsistent with the Act and is a constitutionally permissible means of implementing the Act\'s public-interest standard. Pp. 593-604. (a) The FCC has provided a rational explanation for its conclusion that reliance on the market is the best method of promoting diversity in entertainment formats. It has assessed the benefits and the harm likely to flow from Government review of entertainment programming and has concluded that its statutory duties are best fulfilled by not attempting to oversee format changes. Pp. 595-596. (b) The FCC\'s implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside by the Court of Appeals, for \"the weighing of policies under the \'public interest\' standard is a task that Congress [***3] has delegated to the Commission in the first instance.\" FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 810. Here, the FCC\'s position on review of format changes reflects a reasonable accommodation of the policy of promoting diversity in programming and the policy of avoiding unnecessary restrictions on licensee discretion. P. 596. (c) The Policy Statement is consistent with the legislative history of the Act and with the FCC\'s traditional view that the public interest is best served by promoting diversity in entertainment programming through market forces. Pp. 597-599. (d) The Policy Statement does not conflict with the First Amendment rights of listeners, since the FCC seeks to further the interests of the listening public as a whole and the First Amendment does not grant individual listeners the right to have the FCC review the abandonment of their favorite entertainment programs. Pp. 603-604. COUNSEL: David J. Saylor argued the cause for petitioners in No. 79-824. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Claiborne, Stephen M. Shapiro, and C. Grey Pash, Jr. Timothy B. Dyk argued the cause for petitioners [***4] in Nos. 79-826 and 79-827. With him on the briefs were James A. McKenna, Jr., Carl R. Ramey, J. Roger Wollenberg, J. Laurent Scharff, Jack N. Goodman, Ralph E. Goldberg, Eleanor S. Applewhaite, and Erwin G. Krasnow. B. Dwight Perry and Richard D. Marks filed briefs for petitioners in No. 79-825. Kristin Booth Glen argued the cause for respondents WNCN Listeners Guild et al. Wilhelmina Reuben Cooke argued the cause for respondents Office of Communication of United Church of Christ et al. With them on the brief were David M. Rice, Jeffrey H. Olson, and Earle K. Moore. + + Daniel J. Popeo and Paul D. Kamenar filed a brief for the Washington Legal Foundation as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed (1) by the Attorneys General and other officials for their respective States as follows: Robert Abrams, Attorney General of New York, Shirley Adelson Siegel, Solicitor General, and Robert J. Schack, Assistant Attorney General; Richard S. Gebelein, Attorney General of Delaware, and Regina Mullen Small, State Solicitor; Warren Spannaus, Attorney General of Minnesota; Richard H. Bryant, Attorney General of Nevada; Jeff Bingaman, Attorney General of New Mexico, and Robert Hilgendorf, Deputy Attorney General; Dennis J. Roberts II, Attorney General of Rhode Island, and Susan E. McGuirl, Deputy Attorney General; Mark Meierhenry, Attorney General of South Dakota, and Judith Atkinson, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Thomas L. Boeder, Senior Assistant Attorney General; (2) by Andrew Jay Schwartzman for the American Symphony Orchestra et al.; and (3) by Charles M. Firestone for the Consumer Federation of America et al. [***5]