stating that when "an agency justifies its actions by reference only to information in the public file while failing to disclose the substance of other relevant information that has been presented to it, a reviewing court cannot presume that the agency has acted properly, but must treat the agency's justifications as a fictional account of the actual decision-making process and must perforce find its actions arbitrary”
How later courts described this case
- stating that when "an agency justifies its actions by reference only to information in the public file while failing to disclose the substance of other relevant information that has been presented to it, a reviewing court cannot presume that the agency has acted properly, but must treat the agency's justifications as a fictional account of the actual decision-making process and must perforce find its actions arbitrary”
- explaining that, as a general rule, “unexplained inconsistencies in agency policy ... require ... [a] remand ... to the agency to allow it to ‘supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored’ ”
- suggesting that, unlike the right of reply statute involved in Tornillo, which was triggered by the publication of certain items, rules requiring cable operators to dedicate channels to common carrier use would not diminish the overall diversity of cable programming or deter the presentation of controversial material regarding public figures
- suggesting that, unlike the right of reply statute involved in Tomillo, which was triggered by the publication of certain items, rules requiring cable operators to dedicate channels to common carrier use would not diminish the overall diversity of cable programming or deter the presentation of controversial material regarding public figures
Written by the judges who cited it.
The opinion
WEIGEL, District Judge,
concurring:
In joining the court’s opinion, I wish to emphasize the view that the Federal Communications Commission lacks the power to control the content of programs originating in the studios of cablecasters. Such programs involve neither retransmission of signals received over the air from conventional television broadcasting nor transmission over television broadcasting frequencies. They are offered to users of television sets on terms the users are free to accept or reject.
It seems to me that if there could be any governmental interest justifying this species of censorship, it is an interest which Congress has not empowered the Commission to assert. In relation to cablecasting, the power is so fraught with the potential for impingement upon First Amendment rights that it should not be sanctioned by implication.
The holdings in United States v. Southwestern Cable Co., 392 U.S. 157 , 88 S.Ct. 1994 , 20 L.Ed.2d 1001 (1968), United States v. Midwest Video Corp., 406 U.S. 649 , 92 S.Ct. 1860 , 32 L.Ed.2d 390 (1972), and other cases in their line, when read and measured on the particular facts in each, seem to me to be consistent with the views here expressed.
Mr. Chief Justice Burger, concurring in the result in Midwest, upheld Commission action regulating CATV systems which made extensive use of television broadcasting signals. In his opinion, after noting that that “case presented] questions of extraordinary difficulty and sensitivity in the communications field” ( 406 U.S. at 675 , 92 S.Ct. at 1874 ), the Chief Justice declared his view that the Commission’s position strained “the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts.” (Id. at 676, 92 S.Ct. at 1874 .) In my view, Commission control of program content of cablecasting goes well beyond those outer limits.
Opinion Concurring Specially filed by Circuit Judge MacKINNON.