Radio TV News Dir v. FCC

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.