# Home Box Office, Inc. v. Federal Communications Commission and United States of America, Professional Baseball, Intervenors > Court of Appeals for the D.C. Circuit · May 20, 1977 · 567 F.2d 9 URL: https://www.frixlaw.com/law-library/cases/9464387 ## Case - **Full name:** HOME BOX OFFICE, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Professional Baseball Et Al., Intervenors - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** May 20, 1977 - **Citations:** 567 F.2d 9; 185 U.S. App. D.C. 142 - **Precedential status:** Published - **Opinion:** Concurrence by MacKINNON - **Judges:** Wright, MacKinnon, Weigel - **Cited by:** 378 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464387 ## How later opinions describe it (automated extraction) - 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 … - 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’ ” - holding that “the opportunity to comment is meaningless unless the agency responds to significant points raised by the public. ## Opinion text MacKINNON, Circuit Judge, concurring specially: Belatedly, I file the following special concurrence. This particular rulemaking proceeding began with a number of petitions by broadcast interests for reconsideration of earlier Docket orders and requested that certain existing rules of a highly restrictive nature be applied to all cablecasting programming. The Commission responded with: Notice of Proposed Rule Making in Docket 19554 is hereby announced. All interested persons are invited to file written comments on the rule making proposals on or before September 15, 1972 and reply comment on or befpre September 29,1972. ... In reaching a decision in this matter, the Commission may take into account any other relevant information before it, in addition to the comments invited by this Notice. 35 FCC 2d 899 , J.A. 7. This notice, including the provision that “the Commission may take into account any other relevant information ... in addition to the written comments,” constituted the initiation of what has come to be known as informal rulemaking, under 5 U.S.C. § 553 (b). 1 Un *62 der informal rulemaking, the Commission would not be required to comply with the procedural requirements of sections 556 and 557, which, according to the provisions of section 553(b) and (c), apply to situations where rules are required by statute to be made on the record, after opportunity for an agency hearing. The latter category of agency action refers to formal rulemaking, and also pertains to adjudication required by statute to be determined on the record after opportunity for an agency hearing (see section 554(b)). Recently, in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), a case dealing with informal rulemaking, the Supreme Court held that where there was a statutory requirement that certain findings precede administrative action and the specific findings had not been made, “the full administrative record that was before the Secretary at the time he made his decision,” 401 U.S. at 420 , 91 S.Ct. at 824 , had to be made available to the reviewing court. To the extent that our Per Curiam opinion relies upon Overton Park to support its decision as to ex parte communications in this case, it is my view that it is exceeding the authority it cites because here there is no statutory requirement for specific findings nor are the regulations limited to the full administrative record. And our opinion follows up this excessive reliance on Over-ton Park by an overly broad statement of the rule. I refer particularly to the following: Once a notice of proposed rulemaking has been issued, however, any agency official or employee who is or may reasonably be expected to be involved in the decisional process of the rulemaking proceeding, should “refus[e] to discuss matters relating to the disposition of a [rulemaking proceeding] with any interested private party, or an attorney or agent for any such party, prior to. the [agency’s] decision * * Executive Order 11920, § 4, supra, at 1041. If ex parte contacts nonetheless occur, we think that any written document or a summary of any oral communication must be placed in the public file established for each rulemak-ing docket immediately after the communication is received so that interested parties may comment thereon. 185 U.S.App.D.C. at -, 567 F.2d at 57. I agree that this is the proper rule to apply in this case because the rulemaking undeniably involved competitive interests of great monetary value and conferred preferential advantages on vast segments of the broadcast industry to the detriment of other competing business interests. The rule as issued was in effect an adjudication of the respective rights of the parties vis-a-vis each other. And since that is the nature of the case and controversy that we are deciding and to which our opinion is limited, I would make it clear that that is all we are deciding. I would not make an excessively broad statement to include dictum that could be interpreted to cover the entire universe of informal rulemaking. There are so many situations where the application of such a broad rule would be inappropriate that we should not paint with such a broad brush. 2 In addition section 555(b), which applies to the entire act, authorizes *63 interested parties to confer with all responsible employees of any agency: . So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with any agency function. . 5 U.S.C. ■ § 555(b). Specifically, I would restate the opening clauses of the above quoted provision of our opinion to restrict it to the facts of the case before us, i. e., to read substantially as follows: *64 Once a notice of proposed rulemaking has been issued that will involve competing private claims to a valuable privilege 3 or selective treatment of competing business interests of great monetary value . etc. There are several other statements in this section of our opinion which are too broad and should be similarly limited to the precise type of case currently before us. . 5 U.S.C. § 553 (b) (1970) provides: General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— *62 (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. . Professor Kenneth Culp Davis in his Administrative Law Treatise (1958) points out some of the advantages of informal rulemaking and its wide scope: § 6.02. Written Presentations, Consultations, and Conferences Informal written or oral consultation with affected parties or with advisory committees is the mainstay of rule-making procedure. The principal requirement of the APA is “opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner.” The Model State Act calls for “opportunity to submit data or views orally or in writing.” The consultative process may take many forms. The administrator or staff member may talk over possible rules with selected *63 parties, by telephone or in person, singly or in groups, by systematically and formally arranged conferences or interviews or in connection with fortuitous contacts occasioned by other business. To frame one set of rules the ICC once conducted 89 informal conferences attended by 1,740 individuals representing 1,286 carriers; to frame another set the Commission sent an interviewer through fifteen states to talk with representatives of motor carriers, members of state commissions, executives of insurance companies, and insurance agents and brokers, and then later conferences were held with committees representing the bus industry, the truck industry, and insurance associations. Sometimes consultation involves collaboration in planning and drafting, as when technical representatives of shipping companies cooperate with technicians of the Customs Bureau in preparing rules concerning construction of vessels. The Emergency Price Control Act provided that “before issuing any regulation or order . . . the Administrator shall, so far as practicable, advise and consult with the representative members of the industry. When parties are too numerous and individuals may not be representative, some organization often supplies what is needed. For instance, in the FCC “regular contacts are maintained with well-established trade associations and some licensees and carriers. If a matter involving an aviation radio problem is under consideration, for example, the Commission employee invariably communicates with a representative of Aeronautical Radio, Inc., a non-profit cooperative association whose members are the leading air transportation lines. Whenever the Commission is considering the promulgation of regulations dealing with common carriers, it always attempts to obtain the cooperation of State regulatory bodies and the National Association of Railroad and Utilities Commissioners . in most circumstances the Amateur Radio Relay League and the National Association of Broadcasters can effectively represent their membership.” The Attorney General’s Committee admiringly described the rule-making methods of the Board of Governors of the Federal Reserve System: “The practice of the Board ... is especially noteworthy because of the Board’s virtually complete reliance upon conferences rather than hearings as a means of enabling affected parties to participate in the rule-making process. Over a period of time the Federal Reserve System has developed a procedure of consultation and conference. . Outside views come from replies to letters which the Board sends out, and orally at conferences. Usually statements are put in writing and a stenographic report of conferences is made. Frequently, the interchange of data and views is facilitated by mimeographing them, both within and without the staff. The procedure is flexible, thorough, adapted to bringing the knowledge of an expert agency to bear upon its rule-making problems, and fair. . . . ” The Attorney General’s Committee generalized concerning conferences: “The practice of holding conferences of interested parties in connection with rule-making introduces an element of give-and-take on the part of those present and affords an assurance to those in attendance that their evidence and points of view are known and will be considered. As a procedure for permitting private interests to participate in the rule-making process it is as definite and may be as adequate as a formal hearing. If the interested parties are sufficiently known and are not too numerous or too hostile to discuss the problems presented conferences have evident advantages over hearings in the development of knowledge and understanding.” The superiority of the conference over the hearing has been convincingly described by a commentator: “Let it not be assumed too easily that hearings are a significant protection against bureaucratic absolutism. To a slothful administrator a hearing precedent to regulation may be a God-given opportunity to avoid work and thought. He need only listen with impassively judicial countenance and then forget all he has heard. It is the conference with its give and take ideas and information, with its possibilities of detailed exploration of minor points and hidden corners which stirs the mind to action. Moreover, there are demonstrably situations where hearings produce little if anything of value.” 1 K. Davis, Administrative Law Treatise § 6.02, pp. 363-365 (1958) (footnotes omitted). . See Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 43 , 269 F.2d 211, 224 (1959). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464387. Public record. Not legal advice.