Appendix — Writers Guild of America, West, Inc. v. American Broadcasting Cos.

f? . Supreme Court, U. &

: FILED

| MICHAEL RODAK, JR., CLERK

IN THE

~~

Supreme Court of the United States

OCTOBER TERM, 1979

No. ZO-1L7Z1E

See eeeereeeeeeee

WRITERS GUILD OF AMERICA, WEST, INC., et al.,

Petitioners,

7;

AMERICAN BROADCASTING COMPANIES, INC., ef ai.,

Respondents.

APPENDIX

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD L. OLSON SETH M. HUFSTEDLER

Monroe E. Price JOHN SOBIESKI

Nancy Y. BEKAVAC DENNIS M. PEerLuss

CHARLES D. SIEGAL EVELYN BALDERMAN Hutt

MUNGER, TOLLES & BEARDSLEY, HUFSTEDLER &

RICKERSHAUSER KEMBLE

612 South Flower Street 611 West Sixth Street

Fifth Floor Suite 2220

Los Angeles, California 90017 —_ Los Angeles, California 90017

(213) 683-9100 (213) 626-0671

Attorneys for Petitioners

April 28, 1980

PANDICK PRESS WEST COAST, 1945 S. FIGUEROA, LOS ANGELES, CALIFORNIA (213) 747-4321!

5 U.S.C. § 553.

(a) This section applies, according to the provi-

sions thereof, except to the extent that there is in-

volved —

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management

or personnel or to public property, loans, grants,

benefits, or contracts.

(b) 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 pro-

pozed rule or a description of the subjects and

issues involved.

Except when notice or hearing is required by statute,

this subsection does not apply—

(A) to interpretative rules, general statements

of policy, or rules of agency organization, proce-

dure, 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.

7*

A-2

(c) After notice required by this section, the agency

Shall give interested persons an opportunity to partici-

pate in the rule making through submission of written

data, views, or arguments with or without opportunity

for oral presentation. After consideration of the rele-

vant matter presented, the agency shall incorporate in

the rules adopted a concise general statement of their

basis and purpose. When rules are required by statute

to be made on the record after opportunity for an

agency hearing, sections 556 and 557 of this title apply

instead of this subsection.

(d) The required publication or service of a

substantive rule shall be made not less than 30 days

before its effective date, except—

(1) a substantive rule which grants or recog-

nizes an exemption or relieves a restriction;

(2) interpretative rules and statements of

policy; or

(3) as otherwise provided by the agency for

good cause found and published with the rule.

(e) Each agency shail give an interested person the

right to petition for the issuance, amendment, or repeal

of a rule.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 383.

A-3

5 U.S.C. § 702.

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant Statute, is

entitled to judicial review thereof. An action in a court

of the United States seeking relief other than money

damages and stating a claim that an agency or an

officer or employee thereof acted or failed to act in an

Official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the

ground that it is against the United States or that the

United States is an indispensable party. The United

States may be named as a defendant in any such action,

and a judgment or decree may be entered against the

United States: Provided, That any mandatory or in-

junctive decree shall specify the Federal officer or

Officers (by name or by title), and their successors in

Office, personally responsible for compliance. Nothing

herein (1) affects other limitations on judicial review or

the power or duty of the court to dismiss any action or

deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if any

other statute that grants consent to suit expressly or

impliedly forbids the relief which is sought.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub.L. 94-

574, § 1, Oct. 21, 1976, 90 Stat. 2721.

A-4

United Siates Court of Appeals

FOR THE NINTH CIRCUIT

WriTeRS GUILD OF AMERICA, WEST, INC., et al.,

Plaintiffs-Appellees,

v. No. 77-1058

AMERICAN BROADCASTING Co., INC.,

Defendant-Appellant.

WRITERS GUILD OF AMERICA, WEST, INC., et al.,

Plaintiffs-Appellees,

v. No. 77-1059

NATIONAL ASSOCIATION OF BROADCASTERS,

Defendant-Appellant. OPINION

WRITERS GUILD OF AMERICA, WEST, INC., et al.,

Plaintiffs-Appellees,

v. No. 77-1060

CBS, INc.,

Defendant-Appellant.

Writers GUILD OF AMERICA, WeST, INC., et al.,

Plaintiffs-Appellees,

v. No. 77-1061

NATIONAL BROADCASTING Co., INC.

Defendant-Appellant.

TANDEM PRODUCTIONS, INC., a corporation,

Plaintiff-Appellee,

v. No. 77-1756

NATIONAL BROADCASTING Co., INC.,

a corporation,

Defendant-Appellant.

A-5

TANDEM PRODUCTIONS, INC., a corporation,

Plaintiff-Appellee,

v.

COLUMBIA BROADCASTING SYSTEM, INC., a

corporation; AMERICAN BROADCASTING No. 77-1897

ComPANIES, INC., a corporation; NATION-

AL ASSOCIATION OF BROADCASTERS, a cor-

poration,

Defendants-Appellants.

TANDEM PRODUCTIONS, INC., a corporation,

Plaintiff-Appellee,

v.

COLUMBIA BROADCASTING SYSTEM, INC., a

corporation; NATIONAL BROADCASTING

Co., INC., a corporation; AMERICAN

BROADCASTING COMPANIES, INC., a corpo-

ration; NATIONAL ASSOCIATION OF BROAD-

CASTERS; ROBERT E. Lee; James H. No. 77-2357

QUELLO; CHARLOTTE T. REID; GLEN O.

ROBINSON,

Defendants,

and

FEDERAL COMMUNICATIONS COMMISSION;

RICHARD E. Winey; BENJAMIN C. Hook;

ABBOTT WASHBURN,

Defendants-Appellants.

WriTERS GUILD OF AMERICA, WEST, INC., et all,

Plaintiffs-Appellees,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Defendants-Appellants.

| No. 77-1103

WRITERS GUILD OF AMERICA, Wiest, INc., |

Plaintiffs-Cross-Appellants,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Defendants-Cross-Appellees.

No. 77-1602

A-6

Appeal from the United States District Court

for the Central District of California

Before: SNEED and HUG, Circuit Judges, and

ENRIGHT*, District Judge.

SNEED, Circuit Judge:

Plaintiffs Writers Guild of America, West, Inc.

(Writers Guild)! and Tandem Productions, Inc. (Tan-

dem) instituted these consolidated actions against the

Federal Communications Commission (FCC) and its

Commissioners Wiley, Hookes, Lee, Quello, Reid, Rob-

inson, and Washburn, the three major television net-

works (ABC, CBS, and NBC), and the National Asso-

ciation of Broadcasters (NAB) to challenge the adop-

tion of the so-called “family viewing policy” as an

amendment to the NAB Television Code.2. The Writers

Guild plaintiffs sought declaratory and injunctive relief

against the government defendants for violations of the

First Amendment, the Administrative Procedure Act,

and section 326 of the Federal Communications Act,

and against the private defendants on both First

* Honorable William B. Enright, United States District Judge for

the Southern District of California, sitting by designation.

‘The Writers Guild plaintiffs are various directors, actors,

writers, and producers of television programs as well as the Writers

Guild of America, West, Inc., Writers Guild of America, East, Inc.,

Directors Guild of America, Inc., and Screen Actors Guild, Inc.

2 The Family Viewing Policy reads, in its entirety, as follows:

Additionally, entertainment programming inappropriate

for viewing by a general family audience should not be

broadcast during the first hour of network entertainment

programming in prime time and in the immediately preceding

hour. In the occasional case when an entertainment program

in this time period is deemed to be inappropriate for such an

audience, advisories should be used to alert viewers. Adviso-

ries should also be used when programs in later prime time

periods contain material that might be disturbing to significant

segments of the audience.

(Footnote continued on next page)

A-7

Amendment and antitrust grounds. Tandem sought

damages in addition to declaratory and injunctive relief

against the government defendants for violations of the

First Amendment and section 326 of the Federal Com-

munications Act, and against the private defendants on

First Amendment and antitrust grounds. The actions

were consolidated and tried before the district court.‘

The court, in a lengthy and closely reasoned published

opinion, concluded that: (1) threats, influence, and

pressure by the Chairman of the FCC caused the

networks and the NAB to adopt the family viewing

policy; (2) the FCC committed a per se violation of the

First Amendment by exerting improper pressure on the

networks; (3) the FCC violated the Administrative

Procedure Act (APA) by implementing public policy

by informal pressure instead of by complying with the

Act’s procedural requirements; (4) the action of the

networks and the NAB constituted “government ac-

tion” for purposes of the First Amendment both be-

cause adoption of the family viewing policy had been

caused substantially by FCC pressure and because the

networks, the NAB, and the FCC participated in an

(Footnote continued from previous page)

These advisories should be presented in audio and video

form at the beginning of the program and when deemed

appropriate at a later point in the program. Advisories should

also be used responsibly in promotional material in advance of

the program. When using an advisory, the broadcaster should —

attempt to notify publishers of television program listings.

Special care should be taken with respect to the content

and treatment of audience advisories so that they do not

disserve their intended purpose by coataining material that is

promotional, sensational or exploitative. Promotional an-

nouncements for programs that include advisories should be

scheduled on a basis consistent with the purpose of the

advisory.

3 Plaintiff Lear asserted no Sherman Act claim.

“ All issues except for the antitrust aspects of the cases were

consolidated for trial. The parties agreed to defer trial concerning

the amount of damages, if any, suffered by plaintiff Tandem.

A-8

“unprecedented joint venture” in an effort to com-

promise the independent judgments of other broadcast

licensees; and (5) the networks and the NAB violated

the First Amendment by “fail[ing] to exercise inde-

pendent program judgments and instead becom[ing]

surrogates in the enforcement of government policy”

and by agreeing to compromise the independent

programming judgments of individual broadcast licens-

ees. Writers Guild of America, West, Inc. v. FCC, 423

F. Supp. 1064 (C.D. Cal. 1976). All parties have

appealed.

The district court certified its decision in the

Writers Guild suit as a final order pursuant to Fed. R.

Civ. P. 54(b). An interlocutory appeal in the Tandem

suit was authorized by the district court pursuant to 28

U.S.C. § 1292(b). This court permitted the appeal.

The Writers Guild and Tandem suits were consolidated.

Our jurisdiction rests on 28 U.S.C. §§ 1291 and

1292(b).

The primary issues on appeal are: (1) Whether the

district court erred in concluding that the district court

was proper forum for this litigation and that neither the

doctrine of exhaustion of administrative remedies nor

the doctrine of primary jurisdiction required FCC con-

sideration of plaintiffs’ claims prior to district court

action; (2) whether the actions of the networks and the

NAB amounted to “governmental action” for purposes

of the First Amendment; (3) whether the conduct of the

FCC, the networks, and the NAB violated the First

Amendment; (4) whether the conduct of the FCC

violated the Administrative Procedure Act; (5) whether

plaintiff Tandem is entitled to recover damages from

the private defendants for the alleged violation of its

First Amendment rights; and (6) whether the district

court erred in denying plaintiffs an award for attorneys

fees. Because we conclude that this case raises issues of

A-9

major significance to the administration of the regu-

latory scheme pertaining to the broadcast media that

properly rest within the primary jurisdiction of the FCC,

we do not reach issues (2) through (5). Instead, we

vacate the judgment of the district court with instruc-

tions to hold in abeyance plaintiffs’ claims against the

private defendants pending resolution and judicial re-

view of the administrative proceedings before the FCC.

Before proceeding to the jurisdictional issue, it will

prove helpful first to summarize the conduct from which

this dispute arose, and then to present in a somewhat

stark form the legal propositions on which the district

court based its decision.

I. FACTUAL BACKGROUND — PROMULGA-

TION OF THE FAMILY VIEWING POLICY.

The impact of violent and sexually-oriented tele-

vision programming was the subject of intense public

and congressional concern throughout the two decades

preceding the adoption of the family viewing policy as

an amendment to the NAB Television Code.5 The

5 See, e.g., Hearings on Violence on Television Before the

Subcomm. on Communications of the Senate Comm. on Com-

merce, 93d Cong., 2d Sess. (1974); Hearings in Review of Policy

Matters of Federal Communications Commission and Inquiry into

Crime and Violence on Television and a Proposed Study Thereof

by the Surgeon General Before the Subcomm. on Communications

of the Senate Comm. on Commerce, 91st Cong., Ist Sess., ser. 91,

pt. 6 (1969); Hearings for the Investigation of Juvenile Delin-

quency in the United States Before the Subcomm. to Investigate

Juvenile Delinquency of the Senate Comm. on the Judiciary, 88th

Cong., 2d Sess., pt. 16 (1964); Hearings for the Investigation of

Juvenile Delinquency in the United States Before the Subcomm. to

Investigate Juvenile Delinquency of the Senate Comm. on the

Judiciary, 87th Cong., Ist & 2nd Sess., pt. 10 (1961-62 ); Hearings

for the Investigation of Juvenile Delinquency in the United States

Before the Subcomm. to Investigate Juvenile Delinquency of the

Senate Comm. on the Judiciary, 84th Cong., Ist Sess. (1955) and

83d Cong., 2d Sess. (1954). For discussions of more recent

(Footnote continued on next page)

A-10

specific events giving rise to this lawsuit, however,

commenced in June 1974 when the House Appropria-

tions Committee directed the Federal Communications

Commission “to submit a report to the Committee by

December 31, 1974, outlining the specific positive ac-

tions taken or planned by the Commission to protect

children from excessive violence and obscenity.” H. R.

Rep. No. 1139, 93d Cong., 2d Sess. 15 (1974). On

August 1, 1974, the Senate Appropriations Committee

followed suit, “urging the Commission to proceed as

vigorously and as rapidly as possible—within Con-

stitutional limitations—to determine what is its power in

the area of program violence and obscenity, particularly

as to their effect on children.” S. Rep. No. 1056, 93d

Cong., 2d Sess. 19 (1974).

After soliciting suggestions from his staff con-

cerning how best to respond to the congressional direc-

tive, the Chairman of the FCC, Richard Wiley, em-

barked on a course of what is described by the press as

“jawboning,” to have the networks adopt a system of

self-regulation that would reduce the amount of sex and

violence in television programming without the need for

any “formal” Commission action. The FCC staff had

recommended a variety of Commission responses to the

problem, including issuing notices of inquiry, notices of

proposed rulemaking and policy statements. Chairman

(Footnote continued from previous page)

congressional and public concern about televised violence see

Subcomm. on Communications of the House Comm. on Interstate

and Foreign Commerce, 95th Cong., Ist Sess., Report of Violence

on Television (Comm. Print 1977); Krattenmaker & Powe, Tele-

vised Violence: First Amendment Principles and Social Science

Theory, 64 Va. L. Rev. 1123, 1130-32 (1978); Albert, Con-

stitutional Regulation of Televised Violence, 64 Va. L. Rev. 1299,

1310-17 (1978). For an interesting discussion of even earlier

public concern about violence in the media see Krattenmaker &

Powe, supra at 1288-92 (public outcry concerning violence in

motion pictures and in comic books).

**

A-11

Wiley, however, opted for jawboning instead, in the

belief that many of the staff proposals for formal action

would pose serious First Amendment and section 326

problems. 47 U.S.C. § 326.6 A similar use of jawbon-

ing earlier had proven successful in inducing industry

self-regulation in the area of children’s television

programming. See Action for Children’s Television v.

FCC, 564 F.2d 458 (D.C. Cir. 1977) (ACT).

Chairman Wiley’s campaign ultimately involved:

(1) five meetings between himself and/or members of

the Commission staff and industry representatives at

which various proposals for dealing with the problem of

televised sex and violence were discussed; (2) three

public speeches by Chairman Wiley in which he ex-

horted the industry to undertake its own action but

indicated that unless some action were taken, the gov-

ernment might well be forced to become formally

involved with the problem; (3) several telephone con-

versations between Chairman Wiley and various net-

work executives; and (4) suggestions by Chairman

Wiley to various NAB representatives that the NAB

expedite its consideration of a proposal for a Code

amendment incorporating the family viewing policy.

For a detailed account of Chairman Wiley’s and the

FCC’s informal campaign, see Appendix A. The cam-

paign took place between October 1974 and April 1975.

In April 1975 the NAB announced the family viewing

policy.

6 This section provides:

Nothing in this Act shall be understood or construed to

give the Commission the power of censorship over the radio

communications or signals transmitted by any radio station,

and no regulation or condition shall be promulgated or fixed

by the Commission which shall interfere with the right of free

speech by means of radio communication.

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Il. THE DISTRICT COURT DECISION.

In this case plaintiffs mounted a frontal assault on

the manner in which the FCC chose to carry out its

Statutory mandate to “generally encourage the larger

and more effective use of radio in the public interest.”

47 U.S.C. § 303(g). Plaintiffs argued, inter alia, that

Chairman Wiley’s informal tactics improperly pressured

the networks and the NAB into adopting the family

viewing policy; that the FCC’s use of these tactics,

rather than formal regulation to initiate change within

the broadcast industry, violated the First Amendment

and section 326 of the Federal Communications Act;

and that the FCC in effect implemented a new “public”

policy through informal pressure, and thereby failed to

comply with the procedural requirements of the APA.

A. District Court’s Ratio Decidendi.

To encapsulate the essence of plaintiffs’ arguments

and the district court’s ratio decidendi is not easy. We

may begin by sketching briefly a holding of the Su-

preme Court in Adickes v. S. H. Kress & Co., 398 US.

144 (1970). The Court held that an action against S. H.

Kress & Co. under 42 U.S.C. § 1983 would lie if

Adickes could show that Kress had refused to serve her

“because of a state-enforced custom of segregating the

races in public restaurants.” Jd. at 162. This showing

would demonstrate a denial of equal protection under

the color of a custom of the state. A private defendant

in this manner became a participant in joint activity

with the state and was thus liable under 42 U.S.C.

§ 1983.

This analytic structure was employed by the court

below. It first enunciated the bedrock principle that the

right and duty to make independent decisions regarding

access to the television screen rests with the “hundreds

#*%

A-13

of different licensees.” 423 F. Supp. at 1134. The

principle is elaborated in the following quotation from

the district court’s opinion:

“The right and duty to make independent and final

decisions as to who shall and who shall not get

access to the media resides not with the networks

(except in their capacity as owners of local sta-

tions), not with the NAB, not with the FCC, not

with the screen writers, directors or actors, not with

Norman Lear or Tandem Productions and not with

this or any other court. The constitutionality of the

broadcasting system depends on the conclusion

that the right and duty to make these decisions

reside in hundreds of different licensees.” Jd.

The district court next concluded that government

pressure substantially caused the adoption of the family

viewing policy which deprived the individual licensees

of their right and duty to make independent decisions.

This deprivation violated the First Amendment. Gov-

ernmental action exists because of governmental pres-

sure which, as the district court saw it, functioned here

as did state-enforced custom in Adickes. Because the

government pressure was that of the FCC, an agency of

the United States, the district court then fashioned a

cause of action for damages against the private defend-

ants based on Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971). Bivens to this case

became what 42 U.S.C. § 1983 was to Adickes. The

similarity of this case to Adickes thereby appears close.

The liability of private parties for constitutional viola-

tions induced by governmental pressure, in Adickes

derived from custom and here from jawboning, follows

easily from modes of relief designed to provide a

remedy for deprivations of constitutional rights. The

finding of a violation of the APA by the FCC also

follows naturally.

ee Rn ne ae ee ae

A-14

The validity of the district court’s analysis

fundamentally depends upon whether its bedrock prin-

ciple is correct and whether its finding of causation is

sound. We are not as certain as the district court was.

For this reason, as well as for certain more specialized

reasons to be developed below, we believe that primary

jurisdiction to consider plaintiffs’ challenges rests with

the Commission. Before turning to our discussion of

primary jurisdiction we should point out that the district

court’s holdings on the liability issues presented in the

case are set forth briefly in Appendix B; this restatement

of the holdings can only provide a glimpse of the district

court’s reasoning, the full force of which only a reading

of the opinion below can provide. We shall set forth the

court’s holdings on the jurisdictional issues in the fol-

lowing paragraphs. Nevertheless, perusal of Appendix

B should, when taken with the discussion that follows,

illustrate the extent to which the district court thrust

itself into the “delicately balanced system of (broad-

cast) regulation.” Columbia Broadcasting System, Inc.

v. Democratic National Committee, 412 U.S. 94, 102

(1973) (CBS v. DNC).

B. Jurisdictional Issues.

The disposition by the district court of defendants’

jurisdictional arguments was consistent with, and in-

separable from, its holdings on liability. At the outset

the district court rejected defendants’ contentions that

under the existing broadcast regulatory scheme, plain-

tiffs’ First Amendment and APA challenges to the FCC

actions should have been pursued initially before the

agency, and thereafter on review to a court of appeals.

The court acknowledged that the statutory review

procedure set out in 47 U.S.C. §§ 402(a), 405 and 28

U.S.C. § 2342 was “fashioned. . . to take advantage of

the Commission’s expertise and to foster a unified

approach to the development of communications law,”

A-15

and is the “established, routine ... method of

challenging orders, decisions, reports, and other actions

of the Commission.” 423 F. Supp. at 1075-76. Never-

theless, the court concluded that this statutory route did

not provide the exclusive avenue of relief for plaintiffs

because: (1) the FCC actions complained of did not

occur in any “proceeding” as that term is used in 47

U.S.C. § 405; hence, plaintiffs were not obligated to file

a petition for rehearing with the Commission prior to

seeking judicial review, 423 F. Supp. at 1075-78; (2)

the FCC actions complained of did not constitute

“orders” within the meaning of 47 U.S.C. § 402(a) or

28 U.S.C. § 2342, which grants exclusive jurisdiction to

a court of appeals, because the actions did not result in

a “formal agency mandate issued at the culmination of

some regular agency proceeding,” 423 F. Supp. at 1079-

80; (3) the FCC actions complained of did amount to

“agency action” within the meaning of 5 U.S.C.

§§ 551(13), 702, and 703, for which judicial review in

the district courts was available unless the doctrine of

exhaustion of administrative remedies was applicable,

423 F. Supp. at 1085-86 & n.24; aiid (4) plaintiffs’

constitutional claims were reviewable in the district

court when the FCC actions complained of did not

amount to final orders reviewable in a court of appeals,

the doctrine of exhaustion of administrative remedies

was inapplicable, and the FCC lacked the power to

award damages for the alleged violations. Jd. at

1086-89.

The court further acknowledged that “the existence

of serious constitutional issues may be a factor encour-

aging exhaustion [of administrative remedies] in cir-

cumstances where the necessity of deciding such issues

may be obviated by an administrative grant of relief on

non-constitutional grounds,” and that “orderly adminis-

trative procedures may [not] be bypassed automati-

cally merely because the plaintiff claims that a particu-

A-16

lar administrative action is unconstitutional or otherwise

in excess of its statutory powers.” Jd. at 1082, 1083

n.21. The court nonetheless rejected defendants’ con-

tention that plaintiffs had not exhausted their adminis-

trative remedies prior to instituting these actions in the

district court. Exhaustion was unnecessary, the court

concluded, because: (1) the FCC was “palpably with-

Out jurisdiction to interfere with broadcaster decision-

making in the manner complained of,” (the bedrock

principle once more), id. at 1083; (2) the FCC was

biased and had already prejudged the issues, so that

resort to the Commission would be futile, id. at 1081-82;

(3) the FCC had imposed an immediate burden on the

exercise of important rights, id. at 1082; and (4) the

FCC lacked the power to provide plaintiffs an adequate

remedy, since it lacked the power to award damages, id.

at 1088. As shall appear below, we have strong

reservations about the validity of the first three reasons.

Finally, the court addressed defendants’ contention

that the doctrine of primary jurisdiction obligated the

court to refer plaintiffs’ claims to the FCC for an initial

determination. The court earlier had concluded that the

FCC was the “primary and exclusive forum” for in-

itiating complaints based upon alleged FCC violations

of section 326 of the Federal Communications Act

because the Act did not give rise to a private cause of

action and dismissed plaintiffs’ claim based thereon.

423 F. Supp. at 1084. As to plaintiffs’ First Amendment

and APA claims, however, the court stated that: (1)

“nothing would be served by having the FCC determine

the factual questions surrounding the adoption of the

family viewing policy,” id. at 1090, even though the

FCC possessed “recognized expertise in balancing the

delicate First Amendment considerations involved in

the television industry,” id.; (2) “the First Amendment

legal questions raised either involve no special FCC

A-17

expertise (e.g., state action and remedies) or are not in

controversy (e.g., the lack of FCC power to censor

protected material), id.; and (3) the issues involved in

the case “are simply not the kind of questions which

need ‘be considered by the Commission in the interests

of a uniform and expert administration of the regulatory

scheme,’ ” id. (quoting United States v. Western Pacific

Railroad, 352 U.S. 59, 65 (1956)). We strongly

disagree with each of these conclusions with respect to

the First Amendment and APA claims.

Ill. PRIMARY JURISDICTION.

The district court’s findings of fact and conclusions

of law on the liability issues, see Appendix B, make

clear that it believed the FCC not only acted in en

unconstitutional manner but also disregarded the

requirements of the APA as well. That is, it achieved an

improper goal in an improper manner. The court’s

conclusions strike at the very core of the pervasive issue

concerning the scope of the FCC’s power in regulating

broadcasting and put at issue a technique of governing,

viz., jawboning, that under one name or another has

long been in use in government generally.

These are serious issues; yet both pertain to matters

of great concern to the FCC and with respect to which it

has special competence. Perhaps the district court is

right and our reservations with respect to its fundamen-

tal holdings are without substance. Nonetheless, we

cannot believe that the ultimate judicial resolution of

these issues will not be aided by the FCC’s thorough

consideration of them. Then, and only then, should

courts step with even modest confidence into these

sensitive and difficult areas.

We acknowledge that were we able to accept as

correct beyond challenge the district court’s bedrock

principle we would perceive less need of deference to

the FCC’s primary jurisdiction. However, the licensees

A-18

are to a degree trustees for the benefit of the public and

subject to reasonable regulations having as a goal a

regime of law “compatible with the First Amendment

rights of the public and the licensees.” CBS v. DNC,

412 US. at 132 (1973). In the conflict of interests

within the television industry between licensees, net-

works, broadcasters, writers, actors, producers, and the

public, it must be remembered that the Commv-

nications Act makes the interests of the public para-

mount. Id. at 122. In CBS v. DNC, the Supreme Court

emphasized that the present system of broadcast regu-

lation strikes a balance between private and public

control of the broadcast spectrum.

Balancing the various First Amendment inter-

ests involved in the broadcast media and determin-

ing what best serves the public’s right to be in-

formed is a task of great delicacy and difficulty.

The process must necessarily be undertaken within

the framework of the regulatory scheme that has

evolved over the course of the past half-century.

For, during that time, Congress and its chosen

regulatory agency have established a delicately

balanced system of a — to serve the

interests of all concerned. .

The regulatory scheme evolved slowly, but

very early the licensee’s role developed in terms of

a “public trustee” charged with the duty of fairly

and impartially informing the public audience. In

this structure the Commission acts in essence as an

“overseer,” but the initial and primary responsi-

bility . . . rests with the licensee. This role of the

Government as an “overseer” and ultimate arbiter

and guardian of the public interest and the role of

the licensee as a journalistic “free agent” call for a

delicate balancing of competing interests. The

maintenance of this balance for more than 40 years

A-19

has called on both the regulators and the licensees

to walk a “tightrope” to preserve the First Amend-

ment values written into the Radio Act, and its

successor, the Communications Act.

Id. at 102, 117.

Invocation of the primary jurisdiction doctrine pro-

vides a needed opportunity to obtain an explicit and

well articulated determination by the FCC of whether

its actions under Chairman Wiley properly walked the

“tightrope.” The classic statement of the principle

underlying the primary jurisdiction doctrine was stated

by Mr. Justice Frankfurter in Far East Conference v.

United States, 342 U.S. 570, 574-75 (1952):

Uniformity and consistency in the regulation of

business entrusted to a particular agency are se-

cured, and the limited functions of review by the

judiciary are more rationally exercised, by prelimi-

nary resort for ascertaining and interpreting the

circumstances underlying legal issues to agencies

that are better equipped than courts by special-

ization by insight gained through experience, and

by more flexible procedure.

Although the doctrines of primary jurisdiction and

exhaustion of administrative remedies serve cognate

ends, Western Pacific Railroad, supra, distinguishes

them in the following manner:

“Exhaustion” applies where a claim is cognizable

in the first instance by an administrative agency

alone; judicial interference is withheld until the

administrative process has run its course. “Primary

jurisdiction,” on the other hand, applies where a

claim is originally cognizable in the courts, and

comes into play whenever enforcement of the claim

requires the resolution of issues which, under a

regulatory scheme, have been placed within the

A-20

special competence of an administrative body; in

such a case the judicial process is suspended pend-

ing referral of such issues to the administrative

body for its views. General American Tank Car

Corp. v. El Dorado Terminal Co., 308 U.S. 422,

433.

Western Pacific Railroad, supra, 352, U.S. at 63-64.

Thus, even if our reservations regarding the district

court’s refusal to find that the plaintiffs had failed to

exhaust available administrative remedies are unsound,

we are convinced that primary jurisdiction in this

proceeding belongs in the FCC.

Our conclusion, although firm and fixed, is reached

in full realization of the considerable force of the district

court’s contrary view. That view rests on assertions that

(1) the position of the FCC was already clear, (2) the

views of the FCC could be presented in this case as well

as in a formal administrative proceeding, (3) the FCC

possessed no special expertise in formulating “a theory

of governmental action under the First Amendment or

[fashioning] appropriate remedies,” 423 F. Supp. at

1091, and (4) the FCC cannot adjudicate a charge of

“serious misconduct” involving itself and its Chairman,

id.

The first of these propositions overstates the facts,

while the second ignores the ordinary constraints im-

posed as a result of being a party to litigation. The

position of the FCC in this lawsuit is clear enough and

the activities of Chairman Wiley are beyond dispute. It

is not known, however, what the Position of the FCC

would have been, or in the future will be, when

confronted by the plaintiffs’ claims in a proper adminis-

trative proceeding. Such a proceeding will make pos-

sible a range of responses by the FCC that are either

foreclosed or made tactically difficult in the setting of

this lawsuit as it developed in the trial court. Children

A-21

shortly after leaving the cradle understand the differ-

ence between being forced to defend against a charge of

naughtiness and being asked to consider whether they

thought they had been nice. In the latter posture their

response is much more likely to be open and forth-

coming. Human psychology does not change too much

between the cradle and the grave.

As to the third proposition, we simply have less

confidence in the district court’s bedrock principle ‘han

it does. Enough has already been said to indicate that

there presently exist constraints on the right of individ-

ual licensees to present on the air such matters as they

wish. Well known are the ramifications of the Fairness

Doctrine, Red Lion Broadcasting Co. v. FCC, 395 US.

367 (1969), the Commission’s rules regarding cigarette

advertising, Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir.

1968), and the Commission’s position with respect to

indecent language, FCC v. Pacifica Foundation, 438

U.S. 726 (1978). It simply is not true that the First

Amendment bars ail limitations of the power of the

individual licensee to determine what he will transmit to

the listening and viewing public. At issue in this case is

whether a family viewing hour imposed by the FCC

would contravene the First Amendment. This is a

considerably more narrow and precise issue than is the

district court’s bedrock principle and with respect to

which the FCC’s expertise and procedures could pro-

vide enormous assistance to the judiciary.

The district court’s fourth assertion on which it

_ rested its rejection of the primary jurisdiction doctrine

falls of its own weight once the district court’s findings

regarding liability are put in doubt. The FCC and its

Chairman engaged in “serious misconduct” only if the

law is as the district court found it. Weaken that

foundation and what appeared as “serious misconduct”

looks more like, at worst, jawboning of the type often

A-22

praised as effective leadership by those satisfied with its

results and condemned as unprincipled administration

by those who disapprove of those results.

Jawboning relates, of course, to the district court’s

holding that the Commission violated the APA in its use

of informal procedures in the manner described above.

The technique raises serious issues. It is not surprising

that the Commission often seeks to “chart a workable

‘middle course’ in its quest to preserve a balance

between the essential public accountability and the

desired private control of the media.” CBS v. DNC,

412 U.S. at 120. One such “middle course” has been

the tendency of the FCC to rely upon self-regulation by

the broadcast industry to promote the public interest, a

practice that has possibly had the salutary effect of

diminishing the need for formal governmental inter-

vention and regulation. See, e.g., ACT, supra. More-

over, reliance upon self-regulation no doubt has re-

lieved both the FCC and the industry of the need to

confront the dilemma of delineating the precise extent

of the agency’s formal regulatory authority in various

areas. Hence, informal discussions between the Com-

mission and members of the industry that lead to self-

regulation constitute but one aspect of the ongoing

effort by both the government and the licensees to

negotiate the regulatory “tightrope” on which they

confront one another. See CBS v. DNC, 412 US. at

117.

We acknowledge that informal procedures permit

the FCC to exercise “wide-ranging and largely uncon-

trolled administrative discretion in the review of tele-

communications programming” which can be used to

apply “sub silentio pressure” on broadcast licensees.

Bazelon, FCC Regulation of the Telecommunications

A-23

Press, 1975 Duke L. J. 213, 215.7 Regulation through

“raised eyebrow” techniques or through forceful jaw-

boning is commonplace in the administrative context,®

7 See Illinois Citizens Committee for Broadcasting v. FCC,

F.2d 397, 407-10, 425 (D.C. Cir. 1975) (Statement of Bazelon,

C.J., concerning why he voted to grant rehearing en banc); Yale

Broadcasting Co. v. FCC, 478 F.2d 594, 603 (D.C. Cir.) (State-

ment of Bazelon, C.J., concerning why he would grant rehearing en

banc, sua sponte), cert. denied, 414 U.S. 914 (1973); Brandywine-

Main Line Radio, Inc. v. FCC, 473 F.2d 16, 77 n.60 (D.C. Cir.

1972) (Bazelon, C.J., dissenting), cert. denied, 412 U.S. 922

(1973); Robinson, The FCC and the First Amendment: Observa-

tions on 40 Years of Radio and Television Regulation, 52 Minn. L.

Rev. 67, 118-27 (1967).

8 See, e.g., United Steelworkers v. Weber, 99 S. Ct. 2721,

2737-38 & n.2 (1979) (Rehnquist, J., dissenting) (affirmative

action plan adopted under pressure from Office of Federal Contract

Compliance Programs); ACT, supra, 564 F.2d at 473 n.27 (FCC

jawboning to induce self-regulation in children’s programming

area); Hercules, Inc. v. FPC, 552 F.2d 74, 77-78 (3d Cir. 1977)

(FPC jawboning to establish pipeline curtailment priorities in

accordance with FPC policy when FPC lacked power to impose

own curtailment plans without prior notice and hearing ); Consoli-

dated Edison Co. v. FPC, 512 F.2d 1332, 1341 (D.C. Cir. 1975)

(“Regulation through ‘raised eyebrow’ techniques seems inherent

in the structure of most administrative agencies, combining as they

do both policy-making and adjudicative functions.”); Consumers

Union of U.S., Inc. v. Kissinger, 506 F.2d 136, 143 (D.C. Cir.

1974), cert. denied, 421 U.S. 1004 (1975) (Executive Department

efforts to reduce steel imports via “voluntary imports restraints.”’)

(“[N ]Jothing in the process leading up to the voluntary under-

takings or the process of consultation under them differentiates

what the Executive has done here from what all Presidents, and to

a lesser extent all high executive officers, do when they admonish

an industry with an express or implicit warning that action, within

either their existing powers or enlarged powers to be sought, will be

taken if a desired course is not followed voluntarily.”) See also

AFL-CIO v. Kahn, No. 79-1564 (D.C. Cir. June 22, 1979), cert.

denied, 99 S. Ct. 3107 (1979) (“Voluntary” wage-price program

not “mandatory” economic control within meaning of § 3(b) of

Council on Wage and Price Stability Act. )

A-24

and in some instances may fairly be characterized, as it

was by the district court in this case, as official action by

the agency.9

While we agree that the use of these techniques by

the FCC presents serious issues involving the Con-

stitution, the Communications Act, and the APA,1° we

nevertheless believe that the district court should not

have thrust itself so hastily into the delicately balanced

System of broadcast regulation. Because the “line

between permissible regulatory activity and impermis-

sible ‘raised eyebrow’ harassment of vulnerable licens-

ees” is so exceedingly vague, Bazelon, supra, 1975 Duke

L. J. at 217, it is important that judicial attempts to

control these techniques be sensitive to “the particular

regulatory context in which it occurs, the interests

affected by it, and the potential for abuse.” Consoli-

dated Edison Co. v. FPC, 512 F.2d 1332, 1341 (D.C.

Cir. 1975) (footnote omitted). The development of

standards governing the agency’s use of informal meth-

ods to influence broadcast industry policy is an issue

“that should be dealt with in the first instance by those

especially familiar with the customs and practices of the

industry.” Ricci v. Chicago Mercantile Exchange, 409

US. 289, 305 (1973). See also CBS v. DNC, supra, 412

U.S. at 102-03. Deferral to the FCC is, we believe,

®“The Commission approved of his activities before the fact,

permitted him to engage in activities which they knew would be

perceived as regulatory moves by the agency, were regularly kept

abreast of the developments, and provided input into the “

423 F. Supp. at 1122. See id. at 1077 n.13, 1120-23, 1130. But see

Illinois Citizens Committee for Broadcasting, supra, 515 F.2d at

402 (speech by FCC Chairman Burch not “agency action.”)

‘© Courts are becoming increasingly more sensitive both to the

innuendo inherent in the relationship between regulators and

regulatees as well as to the need to formulate appropriate limits on

ex parte contacts between an agency and those whom it is

to regulate. See generally Home Box Office, Inc. v. FCC, 567 F.2d

9, 51-59 (D.C. Cir. 1977); ACT supra, 564 F.2d at 468-78; Moss v.

Civil Aeronautics Board, 430 F.2d 891, 897-902 (D.C. Cir. 1970).

°F

A-25

essential to further the purposes of the delicately bal-

anced system of broadcast regulation. See L. Jaffe,

Judicial Control of Administrative Action, 158-59

(1965); Note, Jurisdiction to Review Federal Adminis-

trative Action: District Court or Court of Appeals, 88

Harv. L. Rev. 980, 984 (1975). Hence, primary

jurisdiction over plaintiffs’ challenges to the official

agency action complained of in this case as a violation

of the APA rests with the FCC.

In conclusion, we think it appropriate to note our

support for the following views expressed by the District

of Columbia Circuit Court in ACT, another case in

which FCC jawboning activities were involved:

The Commission, as the expert agency entrusted by

Congress with the administration and regulation of

the crucial, dynamic communications field, requires

and deserves some latitude in carrying out its

substantial responsibilities. It may not be the sole

guardian of the public’s interest in broad-

casting—licensees, the courts and the general pub-

lic in varying ways share responsibility with it for

defining and advancing that interest—but, in the

formulation of broadcast policy, the Commission

nevertheless must continue to play a leading role.

If our relationship with the Commission and

other federal agencies is to remain a partnership,

we may not succumb to the temptation of casting

ourselves in the unsuited role of primus inter pares.

564 F.2d at 482.

Accordingly, we vacate the judgment of the district

court and remand with instructions to refer plaintiffs’

claims against the government defendants to the FCC,

and to hold in abeyance plaintiffs’ claims against the

private defendants pending resolution and judicial re-

view of the administrative proceedings before the FCC.

Vacated and Remanded.

A-26

APPENDIX A

The following paragraphs provide a reasonably

complete chronological account of the major events, as

established by the district court, 423 F. Supp. at 1092-

1128, that occurred prior to the formal adoption by the

NAB of the family viewing policy. :

Chairman Wiley’s initiative began October 10,

1974, when he delivered a speech to the Illinois Broad-

casters Association in which he focused on “the question

of violence and obscenity on television—particularly as

to the effect of such presentations on our children.11 He

reminded the broadcasters of their “public account-

ability” and “special” responsibilities as licensees, stat-

ing that “[i]f self-regulation does not work, govern-

mental action to protect the public may be re-

quired—whether you like it or whether I like it.” He

emphasized that the issue of sex and violence on

television was on the “front-burner of a rather ‘well-

heated’ Chairman’s desk at the FCC,” and called for

broadcasters to employ “intelligent scheduling, appro-

priate warnings, and perhaps, even some kind of

industry-administered rating program. ...” Chair-

man Wiley referred to an earlier speech that he had

given in Atlanta in which he had advocated fewer

commercials during children’s television programming,

Earlier, in August 1974, Lawrence Secrest, Legal and

Administrative Assistant to Chairman Wiley, delivered a written

proposal to the NAB’s general counsel, requesting the NAB to

strengthen its position on televised violence by reinstating language

that earlier had appeared in the NAB Television Code. The NAB

Television Code Review Board considered the proposal at its

October 1-2, 1974 meeting, and rejected it. Although the topic of

televised violence was discussed at the meeting, the district court

characterized this meeting as “part of the continuing dialogue

about the question of television programming,” rather than as part

of Chairman Wiley’s initiative to the networks and the NAB. 423

F. Supp. at 1096.

Wak

A-27

applauded the industry amendments to the Television

Code that had occurred after that speech, and stated

that he was “optimistic that the combined effect of

government encouragement and enlightened self-

regulation will bring about constructive change in this

very important aspect of public service.”

On November 7, 1974, Chairman Wiley made the

first of several personal lobbying efforts when he and

members of his staff met with the Washington vice

presidents of ABC, CBS, and NBC. He emphasized the

need for action to reduce violent and sex-related

programming on television, and proposed, inter alia,

that each network issue a policy statement setting forth

its position on televised violence and obscenity, that the

stated policies include a provision for cautionary warn-

ings to be televised whenever a program posed a

problem, and that programs for which warnings were

needed be scheduled for viewing later in the evening.

A second meeting occurred on November 22, 1974,

when Chairman Wiley and FCC staff members met for

two hours in the Chairman’s office with the presidents of

the networks and other network executives. Chairman

Wiley directed attention to the existence of a serious

problem concerning “ ‘undue violence’ and ‘fairly ex-

plicit’ sexual material” on television. He again stressed

the importance of confining shows that might prove

harmful to children to the later evening hours and the

desirability of providing warnings before showing

particularly sensitive material. He reemphasized the

need for some action in this area, indicating that the

Commission was reluctant for legal and policy reasons

to promulgate specific programming rules. He sug-

gested that the networks issue a joint policy statement

on the subject of televised sex and violence, and that the

NAB express a new position in its Television Code.

Arthur Taylor, the President of CBS, made it clear that

A-28

he thought an industry-wide solution was necessary to

deal with the problem. Chairman Wiley endorsed an

industry-wide approach and commented that industry-

wide compliance might be encouraged by including in

license renewal forms new questions on stations’ policies

regarding the scheduling of programs containing sex or

violence, or by issuing a general policy statement similar

to the one issued in the children’s television program-

ming/advertising area, outlining what was expected of

licensees regarding sex and violence, particularly when

significant numbers of children were in the audience.

The meeting concluded with the understanding that

each network would send the FCC a statement of its

current standards, that the FCC staff would meet with

network officials in charge of broadcast standards, and

that the participants in the November 22 meeting would

meet again at a later date.

On November 29, 1974, former FCC Commission-

er Nicholas Johnson, in his capacity as chairman of the

National Citizen’s Committee for Broadcasting, wrote

to Chairman Wiley asking that the Commission “afford

the National Citizens Committee for Broadcasting or

other representatives of the public the right to observe

any further negotiations between the Commission and

the television networks with respect to so-called ‘sex and

violence’ in programming.” Wiley refused, stating that

he did not believe “any useful purpose could be served

by opening these meetings to outside groups such as

your own.”

On December 10 and 11, 1974, members of the

FCC staff met separately with executives responsible for

program standards at each of the networks. In these

sessions the FCC sought to clarify its position, to

achieve an understanding of how the networks would

apply a new scheduling policy to specific programs, and

to learn more about the programming practices of the

A-29

networks. On December 17, 1974, the same FCC staff

members met with Chairman Wiley to review the

current status of the discussions with the networks. The

consensus of the group was that the networks had the

idea that ary further move by the Commission would

appear heavy-handed, that the networks knew of the

approaching December 31 deadline for the FCC’s

report to Congress, and that no “reminder” of the

urgency of the situation was necessary. In view of the

ongoing industry effort to deal with the problems, Wiley

requested and received a postponement of the deadline

for submitting the FCC report to Congress from Decem-

ber 31, 1974 to February 15, 1975.

On December 30, 1974, Arthur Taylor, president of

CBS, sent a letter to Wayne Kearl, chairman of the

NAB Television Code Review Board, in which CBS

proposed that the NAB Code be amended to reflect the

principle that “[p]rogramming in the first hour of the

network prime-time schedule should be suitable for

family viewing.” On the same day, the CBS proposal

was released publicly and NBC issued a press release

Stating that its current schedule “reflects the policy of

opening its prime time programming with series suitable

for family viewing . . . NBC intends to continue this

policy, whether or not the NAB Code is amended to

include a provision along these lines.” On January 2 or

3 NBC issued another press release, dated January 5,

1975, in which it announced that it “plan[ned] to

devote the first hour of its prime time network schedule

to programmu: ¢ suitable for general family viewing.”

On January 7, 1975, the NAB Television Code

Review Board met in a special session requested by

CBS, to consider the CBS proposal for a “family

viewing hour.” The Board took no formal action on

the proposal but instead passed a resolution directing

the Program Standards Committee to “review and to

A-30

make recommendations affecting (1) principles relating

to the scheduling of programs in early evening prime-

time periods and (2) the use of suitable advisory

legends as to the nature of program content.” The

group “agreed” that the resolution “[did] not commit

the Program Standards Committee to recommend any

specific action.” The Committee was obligated only to

present a report to the Television Code Review Board

during the NAB convention in April 1975.

On January 8, 1975, ABC announced that “the first

hour of each night of its prime time network entertain-

ment schedule will be devoted to programming suitable

for general family audiences starting with the new

television season in the fall of 1975.” ABC’s announce-

ment also contained the following statement:

We wish to emphasize the necessity to preserve the

basic rights of freedom of expression under the

Constitution and under the Communications Act.

Government action in the area of program content

must be both cautious and carefully limited lest we

do permanent damage to the principles of free

expression which are so fundamental to our society.

All Americans recognize, we are sure, that these are

sensitive and fragile concepts. Accordingly, ABC

strongly supports the concept of self-regulation.

On January 9, 1975, Chairman Wiley and the FCC

staff met again with the participants in the November

22 meeting. The President of the NAB and the Senior

Executive Vice President for Governmental Relations of

the NAB attended the meeting as well, by invitation of

Chairman Wiley. He sought to facilitate an expeditious

adoption of the family viewing policy, to clarify various

aspects of the policy, and to encourage extension of the

policy to the first two hours of prime time programming.

He also inquired whether it would be possible to secure

A-31

NAB Board approval of the proposal prior to the April

convention, given that the FCC had to report to Con-

gress in mid-February.

On January 15, 1975, the NAB Television Board of

Directors met and passed a resolution which provided

in part that:

The Television Board of Directors of the NAB

commends the three television networks for their

individual actions with respect to programming in

the initial hour of network prime time. At the

same time, mindful of the keen interest in the

subject, the Board recommends that the Television

Code Review Board direct its Program Standards

Committee to expedite as much as possible its

review and recommendations affecting (1) prin-

ciples relating to the scheduling of programs in

early evening prime time periods, and (2) the use

of suitable advisory legends as to the nature of

program content... .

The Board requests the Television Code Review

Board to meet on or before February 15, 1975, to

consider these recommendations.

The Program Standards Committee of the Code Review

Board subsequently met on January 28, 1975, to consid-

er what role the NAB should assume concerning the

family viewing policy, and passed the following resolu-

tion:

Because constructive proposals were proffered as to

the approach to be taken by the Television Code

Review Board in response to the NAB Television

Board of Directors’ resolution, the Program Stan-

dards Committee recommends that the same be

presented to the full Television Code Review Board

for its review and resolution.

A-32

The Television Code Review Board met on Feb-

ruary 4, 1975, and adopted the following statement as a

proposed amendment to the NAB Television Code:

Additionally, entertainment programming

inappropriate for viewing by a general family

audience should not be broadcast during the first

hour of network entertainment programming in

prime time and in the immediately preceding hour.

In the occasional case when an entertainment

program in this time period is deemed to be

inappropriate for such an audience, advisories

should be used to alert viewers. Advisories should

also be used when programs in later prime time

periods contain material that might be disturbing

to significant segments of the audience.

These advisories should be presented in the

audio and video form at the beginning of the

program and when deemed appropriate at a later

point in the program. Advisories should also be

used responsibly in the promotion material in

advance of the program. When using an advisory,

the broadcaster should attempt to notify publishers

of television program listings.

On February 10, 1975, Chairman Wiley addressed

the National Association of Television Program Execu-

tives and emphasized that “the question of what is

appropriate for family viewing necessarily must be

judged in highly subjective terms” and that “the lack of

an acceptable objective standard is one of the best

reasons why—the Constitution aside—I feel that self-

regulation is to be preferred over the adoption of

inflexible governmental rules.” Wiley spoke out again

on February 13, 1975 in a speech before the Radio and

Television Commission of the Southern Baptist Con-

vention:

A-33

A number of interested citizens and some members

of Congress contend that the problem of violence

on television is so serious as to warrant some

remedial action by the Federal Communications

Commission. While I understand and share such

concern, I cannot agree that specific governmental

regulation in this highly sensitive First Amendment

area would be desirable at the present time. In-

stead, my view has been that the FCC—in the

discharge of its public interest responsibilities and

consistent with its authority under the Commu-

nications Act—can play a constructive role at this

point by focusing increased industry attention on

the issue and by encouraging the consideration of

self-regulatory reforms... .

Recent events make it appear that our initiative has

been successful and that the broadcast industry

intends to regulate itself in order to obviate the

need or demand for governmental action in this

area.

On February 19, 1975, the FCC submitted its

Report to Congress. See Report on the Broadcast of

Violent, Indecent, and Obscene Material, 51 FCC.2d 418

(1975). The Report recounted the longstanding public

and congressional concern with the effects of television

on young people, mentioned the growing number of

complaints about violent and sexually-oriented pro-

grams filed with the Commission, and noted the receipt

of various petitions to deny broadcast license renewals

as well as petitions for rulemaking in the area of

televised violence. Jd. at 418-19. The FCC Report

reiterated the theme emphasized by Chairman Wiley

throughout the previous five months, i.e., that industry

self-regulation was preferable to formal governmental

action is this area.

A-34

With respect to the . . . question of what is appre-

priate for viewing by children, the Commission is of

the view that industry self-regulation is preferable

to the adoption of rigid governmental standards.

We believe that this is the case for two principal

reasons: (1) the adoption of rules might involve

the government too deeply in programming con-

tent, raising serious constitutional questions, and

(2) judgments concerning the suitability of particu-

lar types of programs for children are highly

subjective. As a practical matter, it would be

difficult to construct rules which would take imto

account all of the subjective considerations in-

volved in making such judgments. We are con-

cerned that an attempt at drafting such rules could

lead to extreme results which would be unaccept-

able table to the American public.

Id. at 419.

Regulatory action to limit violent and

sexually-oriented programming which is neither

obscene nor indecent is less desirable than effective

self-regulation, since government-imposed limita-

tions raise sensitive First Amendment problems. In

addition, any rule making in these areas would

require finding an appropriate balance between the

need to protect children from harmful material and

the adult audience’s interest in diverse program-

ming. Government rules could create the risk of

improper governmental interference in sensitive,

subjective decisions about programming, could

tend to freeze present standards and could also

discourage creative developments in the medium.

Id. at 420.

The Report then outlined the actions taken by

Chairman Wiley in his attempt to “serve as a catalyst

for the achievement of meaningful self-regulation.” Jd.

A-35

After noting the publication of network policy state-

ments concerning program guidelines and the adoption

of the proposed amendment to the NAB Television

Code, the Report concluded that:

This new commitment suggests that the broadcast

industry is prepared to regulate itself in a fashion

that will obviate any need for governmental action

in this sensitive area... .

[ W Je believe the new guidelines represent a major

accomplishment for industry self-regulation, and

we are optimistic that these principles will be

applied in a responsible manner which will be

acceptable to the American people.

Id. at 422, 424.

On March 24, 1975, Chairman Wiley and members

of his staff met with the President of the Association of

Independeat Television Stations (INTV) to discuss the

application of the family viewing policy to independent

stations.’ One of the primary topics of concern to the

independent stations was the fact that many stations

had long-term contractual obligations to broadcast

programs which probably could not meet the Code

Review Board’s proposed requirements.

On April 8, 1975, the NAB Television Board of

Directors formally adopted the family viewing policy as

an amendment to the Television Code. 13

12 The Commission had indicated in its Report to Congress

that it intended to discuss the family viewing policy with INTV

representatives. 51 FCC.2d at 422 n.11.

'3The Board also approved an amendment designed to

. minimize the contract problems of the independent stations, as well

as a general clause which cautioned against the exploitative use of

program warnings.

A-36

APPENDIX B

In its discussion of the liability issues presented in

the case, the district court reached the following con-

clusions which also rest on the bedrock principle al-

ready referred to.

1. Individual broadcast licensees have both

the right and the duty to exercise independent

judgment about. what constitutes programming in

the public interest. Jd. at 1072.

2. The FCC improperly interfered with the

broadcasters’ right/obligation to engage in inde-

pendent decisionmaking. Jd. at 1072-73.

3. The FCC violated the First Amendment by

threatening the possibility of regulatory action

should the broadcast industry not adopt the family

viewing policy. Jd. at 1073, 1094, 1142, 1146-51,

1161.

a. The FCC may offer suggestions when

it believes that it has information or ideas

which broadcasters may wish to consider in

making their independent determination con-

cerning what programming is in the public

interest. Jd. at 1150.

b. The FCC has no right, however, to

accompany its suggestions with vague or ex-

plicit threats of regulatory action should

broadcasters consider and reject the Commis-

sion’s suggestions. Jd. at 1146, 1150, 1161.

c. The FCC has no right to demand or

secure commitments from broadcasters that its

suggestions be accepted. Jd. at 1150.

d. The FCC has no right to launch

orchestrated campaigns to pressure broad-

casters to do what they do not wish to do. Jd.

A-37

e. When the FCC makes recommenda-

tions in areas where the power to regulate

formally is questionable, the FCC must avoid

any appearance or suggestion of pressure. Id.

f. FCC suggestions not accompanied by

clear and unequivocal denials of an intent to

regulate give the appearance of threats. The

Commission and its representatives must avoid

the appearance of impropriety. Jd. at 1157.

g- The meetings between Chairman

Wiley and the industry representatives were

“extraordinary, unnecessary to achieve an

objective of merely making suggestions, sure

to generate undue pressure and to create an

appearance of impropriety, and strongly in-

dicative of an FCC intent to compromise

broadcaster decisionmaking.” Id.

h. Although the FCC may be able to

develop constitutional regulations which deal

with the questions of violence or of program-

ming for children in the early evening hours,

the Commission has no authority to use the

licensing process to control the depiction of

violence or the presentation of adult material

on television unless it first enacts valid regu-

lations giving fair notice to licensees. Jd. at

1073, 1149-50, 1155, 1161.

4. The FCC violated the APA by using

informal pressure to negotiate new public policy

without providing public notice and without

affording any opportunity for interested parties to

be heard. Jd. at 1151-53, 1157, 1162.

a. The FCC here circumvented APA

requirements by negotiating public policy be-

hind closed doors. Jd. at 1152.

A-38

b. Because the FCC acted in the exercise

of its quasi-legislative powers while jawbon-

ing, it was obligated to comply with the

requirements of 5 U.S.C. § 553. Jd. at 1151.

c. Official FCC endorsements of and

recommendations for change in industry pol-

icy must be made in compliance with APA

procedures. Jd. at 1157.

5. Broadcasters are free to adopt a policy such

as the family viewing policy even if the source of

the idea is governmental, and even if governmental

Officials have encouraged the policy, provided that

their adoption of the policy is based on their own

independent judgment that the policy promotes the

public interest. Jd. at 1072, 1130-40.

6. Broadcasters are not free, however, to

program on any basis other than their own inde-

pendent judgment about what constitutes good

programming. Nor may they interfere with the

independent decisionmaking of other broadcasters

by seeking to impose a policy on another broadcast

licensee. Jd. at 1072, 1131, 1143. Broadcasters

who fail to exercise independent program judg-

ments and who become surrogates in the enforce-

ment of government policy violate the First

Amendment. Jd. at 1073, 1140-43.

7. The actions of the networks and the NAB

constituted “governmental action” for purposes of

the First Amendment both because adoption of the

family viewing policy had been caused substan-

tially by FCC pressure and because the networks,

the NAB, and the FCC participated in an

“unprecedented joint venture” to compromise

tiie independent judgments of other broadcast li-

ce,sees. Jd. at 1094, 1140-46.

A-39

8. The networks and the NAB violated the

First Amendment by “‘fail[ing] to exercise inde-

pendent program judgments and instead be-

com|[ing] surrogates in the enforcement of govern-

ment policy” and by agreeing to compromise the

independent programming judgments of individual

licensees. Jd. at 1073, 1140-46, 1154-55, 1161.

a. The adoption of the family viewing

policy by each of the networks violated the

First Amendment. Jd. at 1143-46, 1161.

b. The adoption of the family viewing

policy by the NAB violated the First Amend-

ment. Id.

c. NAB attempts to enforce the family

viewing policy in any way would violate the

First Amendment. Id.

d. Networks are required to program

independently and may not, without violating

the First Amendment, enter into agreements

with the NAB which condition their member-

ship on adherence to the family viewing policy

or enter into any other agreements which

delegate their programming authority over

family viewing matters to the NAB. The

networks’ delegation of that authority in this

case violated the First Amendment. Jd. at

1154, 1161.

e. The private defendants are liable for

any financial damage which Tandem suffered

as a result of the adoption of the family

viewing policy. Jd. at 1157-58, 1162.

A-40

WRITERS GUILD OF AMERICA, WEST, INC.,

a corporation, et al., Plaintiffs,

Vv.

FEDERAL COMMUNICATIONS COMMISSION,

et al., Defendants.

TANDEM PRODUCTIONS, INC.,

a corporation, Plaintiff,

V.

COLUMBIA BROADCASTING SYSTEM, INC.,

a corporation, et al., Defendants.

Nos. CV 75-3641-F, CV 75-3710-F.

United States District Court,

C. D. California.

Nov. 4, 1976.

7

A-41

MEMORANDUM OPINION

FERGUSON, District Judge.

INTRODUCTION

More than half a century ago, Secretary of Com-

merce Herbert Hoover warned that, “We cannot allow

any single person or group to place themselves in a

position where they can censor the material which shall

be broadcast to the public, nor do I believe that the

government should ever be placed in a position of

censoring this material.”’ The plaintiffs in this case

have exposed a joint agreement on the part of the three

major television networks, the Federal Communications

Commission (“FCC”), and the National Association of

Broadcasters (““NAB”’) to permit one group—the NAB

Television Code Review Board—to act as a national

board of censors for American television. The plaintiffs

have evidenced a successful attempt by the FCC to

pressure the networks and the NAB into adopting a

programming policy they did not wish to adopt. The

plaintiffs have proven that the FCC formulated and

imposed new industry policy without giving the public

its right to notice and its right to be heard.

The policy involved is well known. It has been

called the “family hour,” the “family viewing policy,”

the “9:00 rule,” even the “prime time censorship rule.”

Specifically, the policy is that “Entertainment program-

ming inappropriate for viewing by a general family

audience should not be broadcast during the first hour

of network entertainment programming in prime time

and in the immediately preceding hour. In the occa-

sional case when an entertainment program is deemed

1 Hearings on H.R. 7357 Before the House Committee on the

Merchant Marine and Fisheries, 68th Cong., Ist Sess. 8 (1924).

A-42

to be inappropriate for such an audience, advisories

should be used to alert viewers.” NAB, The Television

Code 2-3 (18 ed. June, 1975).

Two different lawsuits have been filed to contest

the means by which this policy was promoted by the

FCC and adopted by the networks and the NAB. The

defendants are the same in both cases: (1) The Federal

Communications Commission and Commissioners

Wiley, Hookes, Lee, Quello, Reid, Robinson and Wash-

burn [the “government defendants”]; (2) American

Broadcasting Companies, Inc. (“ABC”), CBS, Inc.

(“CBS”), National Broadcasting Company, Inc.

(“NBC”), and the National Association of Broad-

casters [the “private defendants” ]. The plaintiffs in CV

75-3641-F include the Writers Guild of America, West,

Inc., Writers Guild of America, East, Inc., Directors

Guild of America, Inc., Screen Actors Guild, Inc.,

Concept Plus II Productions, Four D Productions, Dan-

ny Arnold, Allan Burns, Samuel Denoff, Larry Gelbart,

Susan Harris, Norman Lear, William Persby, Paul Witt,

and Edwin Weinberger (hereinafter “Writers Guild”’).

The plaintiff in CV 73-3710-F is Tandem Productions,

Inc. (“Tandem”). Most of the plaintiffs are creators,

writers, and producers for television programming. The

shows in which they are involved inciude. “All In The

Family,” “Phyllis,” “The Mary Tyler Moore Show,”

“Barney Miller,” “M*A*S*H,” and “Fay.”

The Writers Guild plaintiffs charge the government

defendants with violations of the First Amendment,

section 326 of the Federal Communications Act of 1934,

and of the Administrative Procedure Act (“APA”). All

of the Writers Guild plaintiffs allege that the private

defendants have violated the First Amendment; all but

Lear charge the defendants with a violation of the

Sherman Antitrust Act. Tandem, the producer of “All

In The Family,” charges the defendants with the

A-43

same violations except that it does not include an

Administrative Procedure Act count. All plaintiffs seek

declaratory relief, injunctive relief, and attorneys’ fees.

Tandem asks for damages as well.

Much of the energy associated with this case has

been generated because the plaintiffs and defendants

disagree about the wisdom of the family viewing policy.

In the last analysis, however, this is not the family hour

case. The desirability or undesirability of the family

viewing policy is not the issue. Rather the question is

who should have the right to decide what shall and shall

not be broadcast and how and on what basis should

these decisions be made. This court will not evaluate

the family viewing policy except to say that individual

broadcast licensees have the right and the duty to

exercise independent judgment in deciding whether or

not to follow that policy. This court has nc authority to

declare an end to the family hour. At the same time,

however, neither the FCC nor the NAB has the right to

compromise the independent judgments of individual

station owner licensees. The court will formulate

remedies designed to let those with the right and the

duty to make programming decisions make them with-

out improper interference from government or other

broadcasters. If the family hour continues, it should

continue because broadcasters in their independent

judgment decide that it is desirable policy, not because

of government pressure or NAB regulation. If govern-

ment intervenes in the future to control entertainment

programming on television, it shall do so not in closed-

door negotiating sessions but in conformity with legisla-

tively mandated administrative procedures. If the

government has any power to regulate such program-

ming, it must be exercised by formal regulation sup-

ported by an appropriate administrative record, not by

informal pressure accompanied by self-serving and un-

convincing denials of responsibility. In short, the family

A-44

hour may or may not be desirable. Censorship by

government or privately created review boards cannot

be tolerated.

The legal and factual issues raised by this case and

discussed in this opinion are numerous and complicated.

Section I of this opinion deals in (etail with motions to

dismiss which were made by the defendants several

months ago. The court denied those motions—at that

time only briefly describing its reasons. Section IA

rejects the private defendants’ contention that 47 U.S.C.

§ 405 dictates that the plaintiffs are required to file a

petition for rehearing with the FCC before securing

relief and the private defendants’ alternative contention

that 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 confer

exclusive jurisdiction over the subject matter of this

lawsuit to the court of appeals. Section IB rejects the

defendants’ contention that the doctrine of exhaustion

of remedies is applicable to this case. Section IC

discusses the defendants’ contention that the FCC has

exclusive jurisdiction over the plaintiffs’ claims. The

contention is accepted with respect to section 326 claims

in part ICI and rejected with respect to the APA claims

and First Amendment claims in parts IC2 and IC3.

Section ID rejects the defendants’ contention that the

doctrine of primary jurisdiction has any role to play in

this case.

Section II of the opinion contains the factual

findings of the court entered after considering the weeks

of trial testimony, hundreds of exhibits, and thousands

of pages of deposition testimony. It has not been

possible to discuss all of the evidence in the record

which supports those conclusions. Still less has it been

possible to discuss all of the contrary evidence and each

of the defendants’ comments with respect to the many

items of evidence. Section II, however, does attempt to

present the highlights and most significant evidence

#*

A-45

which has led the court to conclude that the Commis-

sion exerted improper pressure, that the networks im-

properly considered that pressure in making program-

ming judgments, and that the defendants combined in

an effort to compromise the independent judgments of

broadcast licensees through the medium of the NAB.

Accordingly, it first outlines the parties’ general posi-

tions concerning the facts and the court’s general con-

clusions; it then proceeds to enumerate, chronologically,

the court’s specific findings. It concludes with a dis-

cussion of three separate factual issues which do not

lend themselves to chronological consideration.

Section III of the opinion discusses the legal liabi-

lity issues. Section IIIA considers the liability of the

private defendants. Section IIIA explains why broad-

casters are free to adopt (or reject) the family viewing

policy without violating the First Amendment. Section

IIIA2 explains why broadcasters are free to adopt (or

reject) programming policies even in circumstances

where the source of the suggestion is governmental.

Section IIIA3 explains that broadcasters who fail to

exercise independent program judgments and instead

become surrogates in the enforcement of government

policy violate the First Amendment. Section IIIA4

explains why the defendants’ agreement to compromise

the independent programming judgments of individual

licensees violates the First Amendment.

Section IIIB discusses the liability of the govern-

ment defendants. Section IIIBi explains that the gov-

ernment defendants are free to present programming

suggestions, but are not free to issue threats in order to

“persuade” broadcasters. Such threats, it is explained,

involve per se violations of the First Amendment.

Moreover, the section holds that the FCC cannot use the

licensing process (in the absence of issuing valid regu-

lations) to regulate “offensive” material. Section IIB2

A-46

considers the requirements of the Administrative Proce-

dure Act and indicates that the Commission, by using

informal pressures which circumvented the public de-

bate and scrutiny concomitant with rulemaking, vio-

lated its duties under the Act.

Section IV of the opinion deals with remedial

issues. Section IVA discusses requested declaratory

relief in connection with the networks’ adoption of the

family viewing policy in violation of the First Amend-

ment; Tandem’s request for a court order directing CBS

to move “All In The Family” back into the family

viewing period is rejected. Section IVB explains the

extent to which similar declaratory relief is to be

directed against the NAB, while section IVC discusses

the necessity for a declaration forbidding the FCC from

enforcing the family viewing policy. In section IVD the

court rejects plaintiffs request for a declaration that any

programming suggestions emanating from the FCC

would violate the APA and the First Amendment, but

indicates that if the FCC attempts to force changes in

industry policy, it must comply with APA procedures.

Section IVE explains that damages may be awarded

against the private defendants, but, as a result of the

sovereign immunity doctrine, not against the govern-

ment defendants. Finally, section IVF discusses plain-

tiffs’ request for attorneys’ fees and concludes that

despite a strong balance of equities in their favor,

judicial authority to make such awards has been limit-

ed, and no such relief can be granted.

I. JURISDICTIONAL ISSUES

[l, 2] First, the defendants advance a series of

arguments calculated to support the conclusion that the

district court is an improper forum for this litigation.

Two alternative forums are suggested, i.e., the FCC and

the court of appeals. When one considers the nature of

the issues tendered by the plaintiffs’ complaints, the

**

A-47

insubstantiality of the defendants’ suggestions becomes

apparent. The plaintiffs’ complaints require the trier of

fact to determine the character and extent of the

involvement of the FCC (and/or government officials

employed by the FCC) in the adoption of the family

viewing policy by the networks and the NAB. The

plaintiffs contend that the FCC and government offi-

cials employed by the FCC pressured broadcasters into

adopting the family viewing policy; the FCC stren-

uously disagrees. Elementary principles of fairness

require that this factual dispute should be decided by a

trier of fact other than the FCC. Amos Treat & Co. v.

SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962).

Basic principles of judicial administration counsel that

disputed factual questions are not decided by courts of

appeal. United Gas Pipe Line Co. v. FPC, 86

U.S.App.D.C. 314, 181 F.2d 796, cert. denied, 340 US.

827, 71 S.Ct. 63, 95 L.Ed. 607 (1950). Thus it is

appropriate to approach the defendants’ suggestion that

the law requires one of these two forums with a measure

of skepticism. Closer scrutiny of the defendants’ argu-

ments reveals that the jurisdictional scheme created by

the Congress is consistent with one’s common sense

expectations.

[3] Federal district courts have original jurisdiction

of civil actions arising under any Act of Congress

regulating commerce (28 U.S.C. § 1337) and original

jurisdiction of civil actions arising under the Con-

stitution and laws of the United States if the prescribed

$10,000 jurisdictional amount requirement? is satisfied

(28 U.S.C. § 1331). These sections are clearly broad

2None of the defendants have questioned that more than

$10,000 is at stake here, nor could they realistically do so.

Tandem’s complaint, for example, alleges that it has suffered

damages of $10,000,000. See also section II ¥ 37.

A-48

enough to encompass the claims of the plaintiffs. The

question presented, however, is whether or not Congress

has in more specific statutory enactments created ex-

ceptions which apply to this case.

A. Exclusive Jurisdiction Under 47 U.S.C.

§§ 405, 402(a), and 28 U.S.C. § 2342.

The private defendants contend that Congress has

created a statutory scheme which dictates that all

complaints concerning the Commission’s performance

should be brought first to the Commission and then, if

disagreement should persist, to the appropriate court of

appeals.4

The basic sections are 47 U.S.C. § 405, 47 U.S.C.

§ 402(a), and 28 U.S.C. § 2342. Section 4055 provides

in part that after an action has been taken “in any

3 Moreover, the most recent view in the Ninth Circuit is that

the Administrative Procedure Act is a source of subject matter

jurisdiction. See Hazelwood Hospital v. Weinberger, 542 F.2d 757

(9th Cir. 1976); Wirin v. Eide, 543 F.2d 703 (9th Cir. 1976). See

also Rothman v. Hospital Service, 510 F.2d 956 (9th Cir. 1975);

Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970); Washington v.

Udall, 417 F.2d 1310 (9th Cir. 1969). But see Nguyen Da Yen v.

Kissinger, 528 F.2d 1194 (9th Cir. 1975).

4The contention that the totality of the Federal Commu-

nications Act is designed to create exclusive jurisdiction is consid-

ered in section IC. This section considers the narrower question of

whether these three statutory provisions are as all embracing as the

defendants contend.

5 “After an order, decision, report, or action has been made or

taken in any proceeding by the Commission, or by any designated

authority within the Commission pursuant to a delegation under

section 155(d)(1) of this title, any party thereto, or any other

person aggrieved or whose interests are adversely affected thereby,

may petition for rehearing only to the authority making or taking

the order, decision, report, or action; and it shall be lawful for such

authority, whether it be the Commission or other authority desig-

nated under section 155(d)(1) of this title, in its discretion, to

grant such a rehearing if sufficient reason therefor be made to

appear. A pétition for rehearing must be filed within thirty days

from the date upon which public notice is given of the order,

(Footnote continued on next page)

A-46

proceeding” by the Commission, any person who was

not a party to the proceedings (or any person who relies

on a question of fact or law which the Commission has

not had an opportunity to consider) must file a petition

for rehearing with the Commission before seeking judi-

cial review. Moreover the section provides that the

petition for rehearing must be filed within thirty days of

the date that public notice is given of the action in

question.

Subject to exceptions not relevant here, 47 U.S.C.

§ 402(a)§ provides that proceedings to challenge orders

of the Commission shall be brought under the Adminis-

trative Orders Review Act.” Section two of that act, 28

U.S.C. § 23428 grants exclusive jurisdiction to the court

of appeals to determine the validity of all final orders of

the Commission made reviewable under section 402(a).

(Footnote continued from previous page)

decision, report, or action complained of. No such application

shall excuse any person from complying with or obeying any order,

decision, report, or action of the Commission, or operate in any

manner to stay or postpone the enforcement thereof, without the

special order of the Commission. The filing of a petition for

rehearing shall not be a condition precedent to judicial review of

any such order, decision, report, or action, except where the party

seeking such review (1) was not a party to the proceedings

resulting in such order, decision, report, or action, or (2) relies on

questions of fact or law upon which the Commission, or designated

authority within the Commission, has been afforded no opportunity

to pass... .”

6 “Any proceeding to enjoin, set aside, annul, or suspend any

order of the Commission under this chapter (except those appeal-

able under subsection (b) of this section) shall be brought as

provided by and in the manner prescribed in chapter 19A of

Title 5.”

7 § 402(a) provides that the procedure to be followed is that

set out in Public Law 901, 5 U.S.C. § 1031, et seg. Those sections

referred to were superseded by the Administrative Orders Review

Act, 28 U.S.C. §§ 2341-51.

8 “The court of appeals has exclusive jurisdiction to enjoin, set

aside, suspend (in whole or in part), or to determine the validity of

. . . all final orders of the Federal Communications “ommission

made reviewable by section 402(a) of title 47. . ..”

A-50

Thus from the private defendants’ perspective the

district court is an obviously improper forum. The route

established by congressional direction is first to the FCC

and then to the court of appeal. This route, fashioned

as it is to take advantage of the Commission’s expertise

and to foster a unified approach to the development of

communications law is proffered as the established,

routine, and exclusive method of challenging

orders, decisions, reports, and other actions of the

Commission.9 _

Established and routine it is. Exclusive it is

not.'' The very terms of the statutes reveal that the

petition for rehearing requirement is confined to chal-

lenges of actions taken in “proceedings” of the Commis-

sions and that the exclusive jurisdiction of the court of

appeals is reserved only for the review of “final orders”

of the Commission.

Thus two threshold jurisdictional questions are

presented: (1) Did the government actions criticized in

the plaintiffs’ complaint take place in “proceedings”

within the meaning of 47 U.S.C. § 405? (2) Are the

government actions in question “orders” with the mean-

ing of 47 U.S.C. § 402(a) or 28 U.S.C. § 2342?

1. Proceedings.

At least, it must be recognized that the activities

chaiienged by the plaintiffs cannot be characterized as

the typical proceedings contemplated by statute. The

statute contemplates an action of the Commission in the

form of a written pronouncement accompanied by

public notice. See 47 C.F.R. §§ 1.4(b), 1.104(b),

® Challenges of FCC actions which are not themselves orders

produce orders which become reviewable in the court of appeals.

Fortunately FCC ventures of the character involved here

1 But see section IC1.

7.

A-51

1.106(f); Microwave Communications, Inc. v. FCC, 169

U.S.App.D.C. 154, 515 F.2d 385 (1974). Such

pronouncements serve to generate the kind of record

with which a court of appeal is equipped to deal. Here

however, the plaintiffs do not complain of any formal

action of the Commission.

Indeed an important issue presented by the plain-

tiffs’ allegations is whether or not the Commission has

acted at all. The Commission, itself, takes the position

that it has not taken any action other than a Report to

Congress which recommended that no Commission

action be taken. Instead the Commission suggests that

the plaintiffs are questioning the informal expressions of

view and public speeches of one member of a Commis-

sion which cannot act without a quorum. See WIBC,

Inc. v. FCC, 104 U.S.App.D.C. 126, 259 F.2d 941, cert.

denied, 358 U.S. 920, 79 S.Ct. 290, 3 L.Ed.2d 239

(1958).

[4] Needless to say, the Commission has not issued

a public notice of actions which it denies ever taking.

The plaintiffs, of course, do not accept the Commission’s

position. They charge continuing, pervasive, extra-legal

involvement of the government in broadcaster affairs in

actions taken behind closed doors without any regular

agency proceeding. Although the plaintiffs and the

Commission do not agree as to whether or not the

Commission has acted, they are in accord on the

proposition that no “proceedings” within the meaning

of section 405 have taken place.

The private defendants, however, maintain that if

plaintiffs have been adversely affected by any Commis-

sion action, they are required to seek rehearing as a

condition precedent to judicial review. There is no case

authority to support this sweeping construction of sec-

tion 405, a construction which would appear to read the

A-52

term “proceeding” out of the statute.12 The defend-

ants’ reliance on Citizens Communications Center v.

FCC, 145 U.S.App.D.C. 32, 447 F.2d 1201 (1971) and

12 This does not require rejection of the assumption that if the

FCC actions complained of had taken place in proceedings within

the meaning of section 405, the exclusive statutory mechanisms for

reviewing Commission actions would have to be followed (at least

with respect to the plaintiffs’ claim against the Commission.

Compare section IC). If the plaintiffs in such a situation did not

afford the Commission an opportunity to pass on any of their

claims before going to the court of appeals or had raised some of

them afresh on review in the court of appeals after going to the

Commission, the court of appeals would ordinarily refuse to

entertain them. See e.g., Democratic National Committee v. FCC,

148 U.S.App.D.C. 383, 460 F.2d 891, 911, cert. denied, 409 U.S.

843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972); Hansen v. FCC, 134

U.S.App.D.C. 100, 413 F.2d 374, 376 (1969); cf Unemployment

Compensation Commission v. Aragan, 329 U.S. 143, 155, 67 S.Ct.

245, 91 L.Ed. 136 (1946).

These well established principles go to the question of what

kinds of questions can be raised in the appellate courts on review of

Commission actions. They have nothing to do with the question of

what constitutes proceedings under section 405 and speak only to

the question of what principles apply if proceedings have taken

place. Also apparently inapplicable at first glance is the plaintiffs’

suggestion that section 405 merely incorporates the general prin-

ciples of the doctrine of exhaustion of remedies and that resort to

the Commission would not be required here even if the actions of

the Commission had been taken in proceedings within the meaning

of the section. To be sure, appellate courts on review of FCC

orders have recognized their discretion to excuse a party’s failure to

raise a point in the Commission proceedings. Washington Utilities

and Transportation Commission v. FCC, 513 F.2d 1142, 1168 n.36

(9th Cir. ), cert. denied sub nom. Nat’l Ass’n of Regulatory Commr’s

v. FCC, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975); Great

Falls Community TV Cable Co. v. FCC, 416 F.2d 238, 239 ( 9th Cir.

1969). But such cases speak to the proper relationship between the

appellate courts and the Commission, not to the relationship

between the district courts and the Commission. It is not necessary

to decide here whether or in what circumstances the Commission

could ever be called to account for an action taken in an FCC

proceeding by means of an original action in the district court

(other than pursuant to the special provisions of 28 U.S.C. § 2347)

since the plaintiffs do not seek to review actions taken in proceed-

ings. See generally 5 U.S.C. § 703; L. Jaffe, Judicial Review of

Administrative Agencies 425-26 (1965).

7%

A-53

Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390,

478 F.2d 594, cert. denied, 414 U.S. 914, 94 S.Ct. 211,

38 L.Ed.2d 152 (1973), is misplaced.

Neither case defined, or needed to define “proceed-

ings,” because petitions for reconsideration had already

been filed. In both cases, the Commission (far from

denying its actions) had, without affording an opportu-

nity for public input, formally issued an authoritative

statement of policy which arguably set new industry

guidelines. Because the Commission has not attempted

formal regulations’? in this case, any definition of

“proceedings” which might have been produced in

Citizens Center or Yale could not be decisive here.

In Citizens Communications Center, the plaintiff

brought an action in the United States District Court for

the District of Columbia in which it asked for an

injunction which would have restrained the Commission

from promulgating a policy or rule changing the ground

rules applicable to comparative broadcast license re-

newal proceedings unless it first complied with the

requirements of section four of the APA, 5 U.S.C.

§ 553.14 The district court dismissed the suit for lack of

jurisdiction. Subsequent to the dismissal, as the plaintiff

had feared, the Commission issued a policy statement

without resort to the procedures outlined in section four.

See Policy Statement on Comparative Hearings In-

volving Regular Renewal Applicants, 22 F.C.C.2d 424

(1970).

13 Again the Commission’s only formal action here has been to

issue a report which refused to engage in negotiation. The

plaintiffs do not indict the Commission’s professed decision to do

nothing, i. e., to take no formal action. They complain of the

Commission’s informal action.

% The section requires public notice and opportunity for

public input before the Commission imposes new industry policy

and further requires the Commission to produce a concise state-

ment of the basis and purpose of the new policy.

A-54

The Center attacked this Policy Statement on two

fronts. It first filed an appeal from the district court’s

decision. Second, it filed a petition for rehearing with

the Commission and subsequently filed an appeal inter

alia from the Commission’s memorandum opinion and

order denying reconsideration of its Policy Statement.

The Center’s two appeals were consolidated (and those

two appeals in turn were consolidated with those of

other parties). On appeal, the Commission argued that

the issues presented by the Policy Statement were not

yet ripe for adjudication. The court rejected this

contention, noting in part that the “Policy Statement

has been administratively considered and reconsidered

by the Commission. The issues before us are ‘purely

legal.’” 447 F.2d at 1205.

The private defendants attach significance to this

brief comment. They lift it from its context and suggest

it demonstrates the necessity for filing petitions for

reconsideration of all FCC actions. Such a rule of law

might be appropriate if it were confined to formal FCC

actions. If a party were to complain of an official

pronouncement of the Commission, even absent adher-

ence to the procedural requirements for rulemaking, a

requirement of a reconsideration petition could further

orderly adjudication. '5

[5] But such a rule, had it been announced, would

have little bearing on the question of whether section

405 applies to actions of the Commission which have

not only been unaccompanied by public notice but

which the Commission has denied taking. In fact,

18 On the other hand, the desire for orderly adjudication can

be accomplished by reliance on the doctrine of exhaustion of

remedies, leaving the district courts free to afford necessary relief

when exceptions to that doctrine are involved. It may be that

section 405 merely codifies the exhaustion doctrine with its attend-

ant exceptions. But see note 12, supra.

A-55

however, the court in Citizens Center did not speak to

the question of whether or not section 405 usurps the

jurisdiction of the district court to afford immediate

injunctive relief when the FCC has improperly but

formerly acted without complying with the procedural

requirements of section four of the APA. Indeed the

court did not even address the question of whether or

not injunctive relief was appropriately refused by the

district court in the circumstance there presented, one in

which it was conceded that no FCC action of any kind

had yet taken place. The Center’s appeal from the

dismissal in federal court was simply declared to be

moot by the court of appeals. Here the plaintiffs allege

that the FCC informally regulated without agency

proceedings and without public notice. Neither the

court of appeals’ position in Citizens Center nor the

district court’s holding requires that a petition for

reconsideration be filed.

Similarly unconvincing is the private defendants’

reliance on Yale Broadcasting Co. v. FCC, supra, 478

F.2d 594. There the Commission, acting sua sponte,

issued a Public Notice which discussed the responsi-

bility of licensees to review the lyrics of records before

their broadcast. The notice was prompted by a number

of complaints which had been sent to the Commission

concerning the playing of records containing lyrics

which allegedly “permitted” the use of illegal drugs.

See 28 F.C.C.2d 409 (1971). Numerous parties filed

petitions for reconsideration, and the Commission dis-

posed of those petitions in a memorandum opinion and

order which sought to clarify and modify the Public

Notice. See 31 F.C.C.2d 377 (1971). The parties’

appeal questioned the propriety of both Commission

actions. See 478 F.2d at 595 n.1.

The private defendants regard Yale Broadcasting

as “analogous to the present controversy.” But quite

unlike this case the plaintiffs in Yale sought to attack an

A-56

FCC written pronouncement publicly identified as such

and publicly noticed. As in Citizens Communications

Center, the issues were “purely legal.” 447 F.2d at

1205. Here again the very existence of FCC action

gives rise to a serious factual question and no public

notice has been issued. See Microwave Commu-

nications, Inc. v. FCC, supra, 515 F.2d 385. The court

of appeals in Yale did not address the question of

whether or not the Public Notice was an action taken in

a “proceeding” within the meaning of section 405.

Since petitions for reconsideration had been filed any-

way, there was no occasion to decide whether they were

required. Even if it had adopted an expansive inter-

pretation of that term, such an interpretation would

lend no support to the defendants’ attempt to read the

word “proceeding” out of section 405. No proceeding

within the meaning of section 405 is involved here, and

thus no petition for reconsideration is required by that

section.

2. Orders.

[6] This lawsuit is not within the exclusive jurisdic-

tion of the court of appeals. The actions complained of

are not “orders” of the Commission within the meaning

of 47 U.S.C. § 402(a) or 28 U.S.C. § 2342. Prelimi-

narily, it should be recognized that the term “order” in

the Administrative Orders Review Act is not the equiva-

lent of that term in the Administrative Procedure Act.

Section two of the APA defines “order” to include “the

whole or a part of a final disposition, whether affirma-

tive, negative, injunctive, or declaratory in form, of an

agency in a matter other than rule making but including

licensing . . ..” 5 U.S.C. § 551(6) (emphasis added).

If the term “order” as used in the Administrative

Procedure Act were grafted onto the term “order” in the

Administrative Orders Review Act, the court of appeals

would not have exclusive jurisdiction to consider agency

7%

A-57

rules and regulations. In order to avoid this unwelcome

result the courts in interpreting the Review Act have

given the term “order” a more flexible meaning. For

example, the District of Columbia Court of Appeais in

Gage v. United States Atomic Energy Commission, 156

U.S.App.D.C. 231, 479 F.2d 1214, 1218 (1973), dealt

with the problem by stating that the language of the

Review Act “make[s] no distinction between orders

which promulgate rules and orders in adjudicative

proceedings.” Accordingly, the courts have considered

petitions to review FCC orders promulgating rules and

regulations to fall within the scope of 47 U.S.C.

§ 402(a). See, e. g., United States v. Storer Broad-

casting, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081

(1956); Columbia Broadcasting System, Inc. v. United

States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563

(1941); Mt. Mansfield Television, Inc. v. FCC, 442 F.2d

470 (2d Cir. 1971); California Citizens Band Associ-

ation v. United States, 375 F.2d 43 (9th Cir.), cert.

denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112

(1967).

[7] Nonetheless, although the term “order” in the

Administrative Orders Review Act has been interpreted

in a manner broader than that used in the Adminis-

trative Procedure Act, it never has been interpreted to

include all agency actions. At the very least the term

“order” implies a formal agency mandate issued at the

culmination of some regular agency proceeding. An

examination of the related statutes confirms that view.

For example, 47 U.S.C. § 408 provides that “all

orders of the Commission, other than orders for the

payment of money, shall take effect within such reason-

able time, not less than thirty days after service of the

order ....” (emphasis added). 28 U.S.C. § 2344

requires that upon “the entry of a final order reviewable

under this chapter, the agency shall promptly give

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notice thereof by service or publication in accordance

with its rules.” Moreover the same section indicates

that the petition to review filed in the court of appeals

“shall contain a concise statement of. . . the nature of

the proceedings as to which review is sought... ..”

(emphasis added). See also 47 U.S.C. § 405. Clearly

the statutory scheme envisions a written order entered

on the FCC docket with appropriate notice to the

parties. Cf. FPC v. Metropolitan Edison Co., 304 US.

375, 58 S.Ct. 963, 82 L.Ed. 1408 (1938). Indeed 47

U.S.C. § 154(j) specifically requires that, “Every. . .

Official act of the Commission shall be entered of record,

and its proceedings shall be public upon the request of

any party interested.” Here the plaintiffs complain of

informal actions of the Commission not entered of

record, not served upon the parties, and taken wholly

outside agency proceedings. Nothing in the language of

the relevant statutes even remotely suggests that these

activities are “final orders” of the Commission within

the meaning of section 2342.

Nor does the case law suggest a different result.

The leading case is United Gas Pipe Line v. FPC, supra,

86 U.S.App.D.C. 314, 181 F.2d 796. There the court of

appeals was asked to review an order of the Federal

Power Commission. Recognizing the fact that 15

U.S.C. §717r(b) granted a party aggrieved by an

“order” of the Federal Power Commission the right to

seek review in the court of appeals, and without denying

the possibility that the petitioner was an aggrieved

party, the court of appeals denied review. The court

stated that review in the court of appeals presupposed

the need for “a record fully encompassing the issues.”

:81 F.2d at 799. In the absence of such record,

appellate courts were recognized to have “no intelligible

basis for decision” and were without “authority to

directly review the Commission’s action.” Jd. And

although the United requirement of an actual hearing

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has been questioned by many courts (see, e. g.,

Deutsche Lufthansa Aktiengesellschaft v. CAB, 156

U.S.App.D.C. 191, 479 F.2d 912, 915-16 (1973)), the

requirement of the need of a record for review has

survived. Indeed, “It is the availability of a record for

review and not the holding of a quasi judicial hearing

which is now jurisdictional touchstone.” Jd. at 916.

Thus in cases where the record is unchallenged, where

the issues are legal and not factual, and where notice

has been provided to the parties the court of appeals

has held that it has jurisdiction despite the absence of

an administrative hearing. Id. at 915-16. Here, how-

ever, there is no “record”; there are material issues of

fact; no notice has been given. None of the indicia of

appellate jurisdiction is present.

[8] Even if section 2342 were somehow deemed to

confer jurisdiction upon the court of appeals as to the

alleged actions of the FCC, that jurisdiction would not

embrace the entirety of this action. The First Amend-

ment claims of the plaintiffs do not necessitate a demon-

stration of FCC action. A demonstration of FCC action

would be one way of meeting the First Amendment

state action requirement, it is not the only way. For

example, the plaintiffs contend that Chairman Wiley,

acting under color of his office, improperly interfered

with programming decisions of the broadcasters. These

allegations are sufficient to meet the state action require-

ment whether or not his actions were approved by other

Commissioners and whether or not his actions might be

deemed “agency action” for purposes of the Adminis-

trative Procedure Act or final orders of an adminis-

trative agency for purposes of the Administrative Orders

Review Act.

[9] Moreover nothing in section 2342 could con-

ceivably be deemed to cede jurisdiction to the court of

appeals over the plaintiffs’ action against the private

A-60

defendants. Since the statute is specifically and ex-

clusively designed to establish a review procedure for

agency orders, there is no method by which the plain-

tiffs could join the private parties as defendants in a

review proceeding before the court of appeals. To be

sure, there is a procedure by which interested parties

may intervene (28 U.S.C. § 2348), but the court of

appeals under section 2342 has no power to hear a case

by private plaintiffs against private defendants and no

authority under 28 U.S.C. § 2349(a) to do anything

more than enter a “judgment determining the validity

of, and enjoining, setting aside, or suspending, in whole

or in part, the order of the agency.” Jd. The initial

power to adjudicate such disputes between private

litigants and to enter appropriate relief is reserved to the

district courts. 16

B. Exhaustion of Remedies.

The defendants contend that even if 47 U.S.C.

§ 405 and 28 U.S.C. § 2342 are not applicable to the

circumstances of this case, the general doctrine of

exhaustion of remedies should be applied to force the

plaintiffs to file their complaints with the Commission.

Specifically they point: (1) to procedures which permit

the Commission on the motion of a party to “‘issue a

declaratory order to terminate a controversy or remove

uncertainty” (5 U.S.C. § 554(c): 47 C.F.R. § 1.2); (2)

to procedures which permit persons to petition for

“issuance, amendment or repeal of a rule or regulation”

(47 C.F.R. § 1.401); (3) to procedures which permit

16 Of course, attacks on Commission orders often are vehicles

for attacks on broadcaster activity. See, e. g. Columbia Broad-

casting System, Inc. v. Democratic National Committee, 412 U.S.

94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), but an indirect attack

could not afford complete relief. For example, Tandem’s claim for

damages could not be considered by the Commission or the court

of appeals. See section IC3.

A-61

persons to file informal requests for Commission action

(47 C.F.R. § 1.41). Thus the defendants invoke “the

long-settled rule of judicial administration that no one is

entitled to judicial relief for a supposed or threatened

injury until the prescribed administrative remedy has

been exhausted.” Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed.

638 (1938); McKart v. United States, 395 U.S. 185,

193-94, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); FCC v.

Schreiber, 381 U.S. 279, 296-97, 85 S.Ct. 1459, 14

L.Ed.2d 383 (1965).

The FCC, for example, states that “in total dis-

regard of principles of exhaustion of remedies, plain-

tiffs, to date, have never attempted to bring their

complaint to the attention of the Commission in the

normal administrative mode, prior to instituting this

suit.” Essentially the argument boils down to this: The

plaintiffs, who allege that the Commission and its staff

sought through extra-legal channels to impose an un-

constitutional scheme of censorship in direct defiance of

established procedures, statutory commands, and con-

stitutional limitations, must continue to suffer irrepa-

rable injury while going through the ritualistic exercise

of asking the Commission to admit guilt which it

strenuously denies.

[10] Ironically, the Commission’s papers on file

with this court (the very papers which argue for exhaus-

tion of remedies ) demonstrate that it has predetermined

the issues adversely to the plaintiffs. It forcefully argues

in its papers that there has been no agency action of any

kind and no violation of section 326 or of the First

Amendment by the Commission or any of its members.

Exhaustion of remedies is not required when the admin-

istrative agency involved is biased (Gibson v. Berryhill,

411 U.S. 564, 575 n. 14, 93 S.Ct. 1689, 36 L.Ed.2d 488

(1973): Steele v. Louisville & Nashville R. R. Co., 323

A-62

U.S. 192, 206, 65 S.Ct. 226, 89 L.Ed. 173 (1944);

Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d

755, 768-69 (1972); Amos Treat & Co. v. SEC, supra,

306 F.2d at 266-67);'7 or where exhaustion would be

futile. Houghton v. Shafer, 392 U.S. 639, 640, 88 S.Ct.

2119, 20 L.Ed.2d 1319 (1968); Natural Resources

Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312,

510 F2d 692, 703 (1974); Wolff v. Selective Service

Local Board No. 16, 372 F.2d 817, 825 (2d Cir. 1967);

Western International Hotels v. Tahoe Regional Plan-

ning Agency, 387 F.Supp. 429, 433-34 (D.Nev.1975).18

17 The defendants’ reliance on SEC v. R. A. Holman & Co.,

116 U.S.App.D.C. 279, 323 F.2d 284, cert. denied, 375 U.S. 943, 84

S.Ct. 350, 11 L.Ed.2d 274 (1963) is misplaced. As the court

pointed out in Fitzgerald, supra, 467 F.2d at 768 n.64, the

distinguishing characteristic of the Holman case is that the alllega-

tions of participation were contested. Moreover the Holman court

was concerned with the prospect that staying an administmative

process while a court “engaged in an extended inquiry imw the

claimed disqualification of members of the administrative body

could lead to a breakdown in the administrative process. . ..” 323

F.2d at 287. Concern over the problems of delaying administrative

hearings also controlled the court’s decision in Davis v. Secretary,

Department of Health, Education & Welfare, 262 F.Supp. 124

(D.Md.), aff'd, 386 F.2d 429 (4th Cir. 1967). Here the FOC has

announced that it intends at the moment to take no further artion

in this area but will rely on “self regulation.” Moreover, the

- involvement of Chairman Wiley is uncontested. Cf. Berkshire

Employees Association v. NLRB, 121 F.2d 235, 238-39 (3d Cir.

1941). Here the Commission and its members themselves ae on

trial. As in Amos “[T]he asserted infirmity is fundamental.” 306

F.2d at 265. Here as in Amos the court must be concerned that a

“hearing of such importance and vast potential consequences must

be attended, not only with every element of fairness but with the

very appearance of complete fairness.” Jd. at 267. Such a hearing

could not be afforded by the Commission.

18 The optimism about the willingness of the Commission to

change its mind displayed in Morrisseau v. Mt. Mansfield Tele-

vision, Inc., 380 F.Supp. 512 (D.Vt. 1974) is explainable and

distinguishable. Since that case was based on a Communications

Act claim, the question of whether or not the plaintiff had adequate

remedies with the Commission was irrelevant. Adequate e not,

(Footnote continued on next page)

7%

A-63

The private defendants suggest, however, that the

apparent futility of the remedy before the FCC is belied

by the availability of the court of appeal review proce-

dure. The suggestion of the private defendants 1s

twofold: first, that the court of appeals could force the

FCC to give the plaintiffs’ claim appropriate consid-

eration; second, that even if remedies with the FCC

were inadequate, the court of appeals would afford

adequate consideration to the plaintiffs’ claims. The

parties’ first point overlooks the underlying cause of the

remedy’s inadequacy. The inadequacy results not from

any venality on the part of the Commission but rather

because the Commission is understandably biased. Vig-

orous advocates inevitably are. The court of appeals

cannot be expected to transform admittedly interested

parties into impartial observers. 19

[11] The parties’ second point puts the cart

before the horse. Wherever this lawsuit should start,

and whatever its outcome in the initial forum, it can

(Footnote continued from previous page)

they were all he had. Jd. at 515. See discussion in section ICI,

infra. Moreover, in Morrisseau, the Commissioners themselves

were not on trial. Notions about the power of the Secretary of

Transportation to make judgments rather than assessments about

the adequacy of remedies were also at work in D. C. Federation of

Civic Associations v. Volpe, 148 U.S.App.D.C. 207, 459 F.2d 1231,

cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972).

Thus these cases are relevant only to the defendants’ attack on the

Communications Act claims. See section IC1, infra.

19 Hortonville Joint School District No. 1 v. Hortonville Educa-

tion Association, ___. U.S. —._.,, 96 S.Ct. 2308, 49 L.Ed.2d 1

(1976) is not to the contrary: (1) this is not a case involving the

special problem of a public employer dealing with employees; (2)

the personal stah:: in the decision present here was not present

there; (3) the nature of the involvement of the Commission and

the Chairman here is of an entirely different dimension; (4) the key

question involved here is one of fact and not policy; (5) the

showing required to show bias or futility for purposes of exhaustion

of remedies is not necessarily coextensive with the showing r-

quired for a due process violation.

A-64

proceed at least to the court of appeals. Compare 28

U.S.C. § 2342 with 28 U.S.C. § 1291. The question is

what kind of record the court of appeals will review.

For the reasons stated previously, a record with findings

of fact entered by the FCC would be fatally defective.

The effectiveness of any remedy in the court of appeals

presupposes that material issues of fact first be present-

ed to an impartial trier of fact.20

[12] Finally, even if the problems of bias and

futility were not involved, exhaustion would not be

required because that doctrine is inapplicable when an

agency has taken an action beyond its jurisdiction and

thereby imposed an immediate burden on the exercise

of important rights. As Professor Davis observes, ‘“‘No

court requires exhaustion when exhaustion will involve

irreparable injury and when the agency is palpably

without jurisdiction.” 3 K. Davis, Administrative Law

Treatise § 20.01, at 56 (1958). See, e.g., Leedom v.

Kyne., 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210

(1958); Skinner & Eddy Corp. v. United States, 249

J.S. 557, 39 S.Ct. 375, 63 L.Ed. 772 (1919); Dragna v.

Landon, 209 F.2d 26 (9th Cir. 1953); Ashland Oil Co. v.

Federal Energy Administration, 389 F.Supp. 1119

(N.D.Cal. 1975); A. E. Staley Manufacturing Co. v.

United States, 310 F.Supp. 485 (D.Minn. 1970).

20 Indeed 28 U.S.C. § 2347 provides that the court of appeals

can entertain petitions to review agency orders only “when the

agency has held a hearing” or “when . . . no genuine issue of

material fact is presented. . ..” Moreover, in a case such as this,

the court of appeals would be required to “transfer the proceedings

to a district court for the district in which the petitioner resides or

has its principal office for a hearing and determination as if the

proceeding were originally initiated in the district court. . ..” Id.

This court finds it difficult to accept the idea that any principle of

law, let alone the doctrine of exhaustion of remedies, requires the

plaintiffs to go to the FCC and the court of appeals so that they

finally can be told that they must return to the forum they selected

in the first place.

A-65

This does not mean, of course, that orderly admin-

istrative procedures may be bypassed automatically

merely because the plaintiff claims that a particular

administrative action is unconstitutional or otherwise in

excess of its statutory powers. See, e.g., Boire v.

Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11

L.Ed.2d 849 (1964); Aircraft & Diesel Equipment Corp.

v. Hirsch, 331 U.S 752, 67 S.Ct. 1493, 91 L.Ed. 1796

(1947); Myers v. Bethlehem Shipbuilding Corp., supra,

203 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Boire v. Miami

Herald Publishing Co., 343 F.2d 17 (Sth Cir.), cert.

denied, 382 U.S. 824, 86 S.Ct. 56, 15 L.Ed.2d 70

(1965 ).21

[13] The case law though marked by over-

generalization can be reconciled as Davis observes by

the application of three factors: “[E]xtent of injury

from pursuit of administrative remedy, degree of appar-

ent clarity or doubt about administrative jurisdiction,

and involvement of specialized administrative under-

standing in the question of jurisdiction.” 3 K. Davis,

supra, § 20.03 at 69. In fact, the Ninth Circuit Court of

Appeals has specifically adopted Professor Davis’

21 In fact, the existence of serious constitutional issues may be

a factor encouraging exhaustion in circumstances where the neces-

sity of deciding such issues may be obviated by an administrative

grant of relief on non-constitutional grounds. See, e.g., Aircraft &

Diesel Equipment Corp. v. Hirsch, supra, 331 U.S. at 772, 67 S.Ct.

1493; Montana Chapter of Association of Civilian Technicians, Inc.

v. Young, 514 F.2d 1165, 1167 68 (9th Cir. 1975); Sohm v. Fowler,

124 U.S.App.D.C. 382, 365 F.2d at 915, 918 (1966). But the cases

recognizing this principle also recognize that “the presence of

constitutional questions, coupled with a sufficient showing of

inadequacy of prescribed administrative relief and of threatened or

impending irreparable injury flowing from delay incident to follow-

ing the prescribed procedure, has been held sufficient to dispense

with exhausting the administrative process before instituting judi-

cial intervention.” Aircraft & Diesel Corp. v. Hirsch, supra, 331

U.S. at 773, 67 S.Ct. at 1503.

A-66

formulation commending it as one that “is as complete

and workable as can be stated.” Lone Star Cement

Corp. v. FTC, 339 F.2d 505, 510 (1964).

[14] First, as to the extent of injury, the actions

complained of place a continuing and irreparable bur-

den on First Amendment rights. As the plaintiffs put it,

““Today’s censorship is not caused by tomorrow’s toler-

ance.” There is no reason to believe that swift agency

relief is likely. Even more important there is no doubt

that the Commission is palpably without jurisdiction to

interfere with broadcaster decisionmaking in the man-

ner complained of. The FCC does not even purport to

possess the right to do what the plaintiffs contend they

have done. The FCC simply insists that it has not

interfered with broadcaster decisionmaking. Resolving

the conflict requires impartial adjudication, not special-

ized understanding. In short, each of the operative

factors points to one conclusion: exhaustion is not

necessary.

The defendants point to the fact that the Commis-

sion has in a myriad of cases considered constitutional

questions about broadcaster conduct and Commission

conduct. To the extent that agreement is directed to the

judicially created doctrine of exhaustion, it is irrelevant.

_ The point is not that the Commission under the exhaus-

tion doctrine cannot hear constitutional questions. The

point is that in the absence of an exciusive statutory

mechanism the courts have equity power to enjoin ultra

vires Commission actions that threaten irreparable in-

jury. To the extent that argument is directed to the

proposition that remedies with the Commission are

exclusive, it is discussed in section IC1, infra.

[15] The private defendants further imply that

even if exhaustion of remedies with respect to the

plaintiffs’ claims against the government defendants

were not required, exhaustion of remedies should be

**

A-67

imposed as to the plaintiffs’ claims against the broad-

casters. Assuming arguendo that the doctrine of exhaus-

tion applies to the plaintiffs’ constitutional claims

against the private defendants, there is no adequate

remedy to exhaust. The plaintiffs’ primary claims

against the broadcasters depend upon the same factual

premises as their claims against the FCC. To the extent

that the plaintiffs’ remedies against the FCC are in-

adequate, they are equally inadequate against the

broadcasters.

As the Supreme Court emphasized in McKart v.

United States, supra, 395 U.S. at 193, 89 S.Ct. at 1662,

the doctrine of exhaustion of remedies is “like most

judicial doctrines subject to numerous exceptions.” It

comes “into effect only if the remedy. . . is adequate to

protect the asserted claim.” L. Jaffe, Judicial Control of

Administrative Agencies 426 (1965). Here, since the

remedy is inadequate, the doctrine does not come into

effect.

C. Exclusive Jurisdiction: Revisited.

The defendants ( government and private ) take the

argument one step further. Running through their

briefs is the notion that whether or not the traditional

exceptions to the doctrine of exhaustion of remedies

apply (i.e., independent of whether or not there is an

adequate remedy), the plaintiffs are statutorily required

to exhaust remedies with the FCC. Essentially the

position is that even if section 47 U.S.C. § 405, 47

U'S.C. § 402(a) and 28 U.S.C. § 2342 have not by their

terms evidenced a congressional intention to make the

FCC the exclusive fact finder for any matter involving

the television industry, the comprehensive character of

the statutory scheme and the case law interpreting that

scheme has. Thus the argument goes not to timing, but

A-68

to power. In this connection it is necessary to dis-

tinguish between the three causes of action now at

issue. 22

1. Section 326 Claim.

The plaintiffs attempt to state a private cause of

action against the Commission and its commissioners

under section 326 of the Federal Communications Act

of 1934. Courts which have treated private claims

against broadcasters founded upon the Commu-

nications Act have uniformly concluded that the Act

does not give rise to a private cause of action in the

federal courts. Daly v. Columbia Broadcasting System,

Inc., 309 F.2d 83, 86 (7th Cir. 1962); Massachusetts

Universalist Convention v. Hildreth & Rogers Co., 183

F.2d 497, 500 (Ist Cir. 1950); McIntire v. Wm. Penn

Broadcasting Co., 151 F.2d 597, 600 (3d Cir. 1945);

Post v. Payton, 323 F.Supp. 799 (E.D.N.Y. 1971);

Ackerman v. Columbia Broadcasting System, Inc., 301

F.Supp. 628, 631 (S.D.N.Y. 1969); Gordon v. National

Broadcasting Co., 287 F.Supp. 452, 455 (S.D.N.Y.

1968 ).23

[16] The parties have not cited any case in which

a plaintiff has attempted to state a section 326 private

cause of action, but the cases which have disputed the

existence of a private cause of action under various

22 Most of the plaintiffs assert an antitrust cause of action

against the private defendants. The issues presented by that

portion of the plaintiffs’ complaint are not at issue in this stage of

the proceedings.

23 In an early case, Weiss v. Los Angeles Broadcasting Co., 163

F.2d 313 (9th Cir. 1947), cert. denied, 333 U.S. 876, 68 S.Ct. 895,

92 L.Ed. 1152 (1948), the Ninth Circuit seemed to assume that a

private cause of action could lie under the Act even though the

facts of the particular case did not involve a violation. Since the

court found no cause of action on the facts presented its assump-

tions did not amount to a holding and have since been undermined

by the later cases.

#3

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sections of the Act have not based their analysis on the

specific sections but on an analysis of the Act as a

whole. Thus the Supreme Court stated in Scripps-

Howard Radio v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 882,

86 L.Ed. 1229 (1942), “The Communications Act of

1934 did not create new private rights. The purpose of

the Act was to protect the public interest in commu-

nications.” In this area, the Commission is the “‘pri-

mary and exclusive forum” (Ackerman v. Columbia

Broadcasting System, Inc., supra, 301 F.Supp. at 631) to

initiate complaints based upon the Act. The point,

therefore, is not that the plaintiffs must exhaust adminis-

trative remedies before coming to this court. The point

is that the Act countenances no private cause of action

whether or not administrative remedies have been

exhausted. Daly v. Columbia Broadcasting, supra, 309

F.2d at 86; Morrisseau v. Mt. Mansfield Television, Inc.

supra, 380 F.Supp. at 515.

[17, 18] This does not mean, however, that

abuses of the Commission are immune from scrutiny.

As discussed supra, (see section IA), the court of

appeals has the power to scrutinize final orders of the

Commission. As discussed infra, the Administrative

Procedure Act®4 and the First Amendment give rise to

private causes of action against the Commission in the

federal courts.

24The APA permits courts to consider not only procedural

violation: but substantive violations not otherwise reviewable. The

action, however, is created by the APA, not by the Commu-

nications Act. Thus section 326 violations by the Commission in

“proceedings” are reviewable in the court of appeals or subject to a

rehearing petition. Actions taken outside proceedings are review-

able in the district court unless the exhaustion doctrine is deemed to

apply. See section IC2, infra.

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2. Administrative Procedure Act Claim.

Section 10(a) of the APA, 5 U.S.C. § 702, provides

that “A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof.” The Commission

insists that judicial review is confined to the court of

appeals and supports that view by reference to section

10(b) of the Act, 5 U.S.C. § 703, “The form of

proceeding for judicial review is the special statutory

review proceeding relevant to the subject matter in a

court specified by statute ....” Conveniently the

Commission does not refer to the qualifying language of

the section which reads, “or, in the absence or in-

adequacy thereof, any applicable form of legal action,

including actions for declaratory judgments or writs of

prohibitory or mandatory injunction or habeas corpus,

in the court of competent jurisdiction.” (emphasis

added). As discussed in section IA, the Administrative

Orders Review Act and 47 U.S.C. § 402(a) confer

exclusive jurisdiction upon the court of appeals to

review final orders of the Commission. The Commis-

sion apparently is arguing that if Commission activities

do not amount to a final order, they cannot be consid-

ered agency action. Indeed the Commission at one

point specifically contends that, “If the family hour were

to be considered a rule or other final agency action under

the APA, then exclusive judicial review would lie in the

Court of Appeals.” (emphasis added and capitals

deleted). This construction of the Administrative

Procedure Act is at odds with its language, its legislative

history and the case law interpreting it.

[19] Section two of the APA, 5 U.S.C. § 551(13),

defines agency action in sweeping terms. It includes

“the whole or a part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or

ww

A-71

failure to act.” Indeed both the House and Senate

committees in recommending the bill observed that the

definition of agency action was specifically designed “‘to

assure the complete coverage of every form of agency

power, proceeding, action, or inaction.” S.Rep.No.

752, 79th Cong., Ist Sess. 12 (1945); H.Rep.No.1980,

79th Cong., 2d Sess. 21 (1946), U.S.Code Cong.Serv.

1946, p 1195. To accept the Commission’s suggestion

that only “final orders” are reviewable in the courts

would directly fly in the face of the purpose of the APA

stated again by both the House and Senate committees

responsible for the legislation; i.e., the act is “designed

to afford a remedy for every legal wrong.”

S.Rep.No.752, 79th Cong., Ist Sess. 7 (1945);

H.Rep.No.1980, 79th Cong., 2d Sess. 17 (1946).

Thus the Supreme Court stated in Abbott Labora-

tories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507,

1511, 18 L.Ed.2d 681 (1967) that

The Administrative Procedure Act provides specif-

ically not only for review of “‘[a]gency action made

reviewable by statute” but also for review of “‘final

agency action for which there is no other adequate

remedy in a court,” 5 U.S.C. § 704. The legislative

material elucidating that seminal act manifests a

congressional intention that it cover a broad spec-

trum of administrative actions, and this Court has

echoed that theme by noting that the Adminis-

trative Procedure Act’s “generous review provi-

sions” must be given a “hospitable” interpretation.

Even more specifically in Bucks County Cable TV,

Inc. v. United States, 229 F.Supp. 1325, 1333 (E.D.Pa.

1969), rev'd on other grounds, 427 F.2d 438 (3d Cir.),

cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 61

(1970) the court ruled:

[T]he Administrative Procedure Act supplements

the special statutory review procedures for final

orders of the various agencies. Its review provi-

A-72

sions utilize traditional equity actions for agency

action not amounting to a final order, but which

nonetheless directly affects plaintiffs rights.

See also Utah Fuel Co. v National Bituminous Coal

Commission, 306 U.S. 56, 59-60, 59 S.Ct. 409, 83 L.Ed.

483 (1939); Deering Milliken, Inc. v Johnston, 295 F.2d

856, 865 (4th Cir. 1961); Jefferson Standard Broad-

casting Co. v. FCC, 297 F.Supp. 784, 787-89

(W.D.N.C.1969); 3 K. Davis, supra, § 23.03 at 304; L.

Jaffee, Judicial Control of Administrative Action 358-59

(1965).

The Commission, of course, is correct when it

asserts that the actions of a single commissioner do not

amount to agency action within the meaning of the

APA. The Commission’s contentions in that regard are

discussed in section II 935. But to the extent the

Commission attempts to suggest that the term “agency

action” is synonymous with final orders, its position is

rejected.25

3. First Amendment Claims.

The defendants’ position that the FCC has ex-

clusive jurisdiction to entertain the plaintiffs’ con-

stitutional claims presents an entirely different order of

question. Although the parties are in dispute as to

whether or not the First Amendment gives rise to a

private cause of action for damages and whether or not

the First Amendment affords a basis for declaratory or

injunctive relief under the circumstances of this case, no

one doubts that in an appropriate case that the First

Amendment will support a private cause of action for

25 The government defendants do not raise the question of

whether the APA provides subject matter jurisdiction over individ-

ual commissioners sued in their official capacity. They could not

appropriately do so. See Crowther v. Seaborg, 312 F.Supp. 1205

(D.Col. 1970).

A-73

declaratory and injunctive relief. ““The inherent federal

judicial power to enjoin threatened or continued viola-

tion of constitutional rights is beyond question.”

Ackerman v. Columbia Broadcasting System, Inc., supra,

301 F.Supp. at 633, citing Pell v. Hood, 327 U.S. 678,

684, 66 S.Ct. 773, 90 L.Ed 939 (1946). Most courts

presented with constitutional claims against broad-

casters have been willing to consider them on the merits

without reference to the doctrine of exhaustion of

remedies. See Massachusetts Universalist Convention v.

Hildreth & Rogers Co., supra, 183 F.2d at 501; McIntire

v. Wm. Penn Broadcasting Co., supra, 151 F.2d at 601;

Post v. Payton, supra, 323 F.Supp. at 803-04; Ackerman

v. Columbia Broadcasting System, Inc., supra, 301

F.Supp. at 633-34. But see Maguire v. Post Newsweek

Stations, 24 P&F Radio Reg.2d 2094 (D.C. Cir. 1972).

[20] The question of whether or not the courts

should resort to the exhaustion doctrine (or the doctrine

of primary jurisdiction discussed in section ID infra)

when considering a plaintiff's constitutional claim is

ordinarily academic. Since most courts have ruled that

broadcaster action is not per se the equivalent of

government action for First Amendment purposes,?6

the question of whether or not the plaintiffs have

exhausted claims dependent on this very theory has

ordinarily been bereft of practical significance. See,

e.g., Massachusetts Universalist Convention v. Hildreth

& Rogers Co., supra, 183 F.2d at 501; McIntire v. Wm.

Penn Broadcasting Co., supra, 151 F.2d at 601; Post v.

Payton, supra, 323 F.Supp. at 803. Nonetheless most

courts which have proceeded to decide the con-

stitutional merits without invoking the exhaustion doc-

trine have so proceeded while simultaneously referring

Communications Act claims to the Commission. Since

26 As is discussed in section III, the question has been left open

by the Supreme Court. It has not been ruled on by the Ninth

. Circuit, and there is no need to decide the question in this case.

A-74

these courts do not require exhaustion as even a prelimi-

nary step to judicial consideration of their claim a

fortiori they do not believe that the FCC possesses

exclusive jurisdiction to decide such claims. They

obviously assume that the Communications Act did not

sub silentio divest the courts of their traditional power to

decide constitutional issues. But the defendants appar-

ently believe that those cases which have assumed

jurisdiction over constitutional claims and decided them

on the merits have gone too far. They suggest that the

proper approach was followed by the court in Maguire

v. Post Newsweek Stations, supra, 24 P&F Racio Reg.2d

2094 and imply that that case holds that exhaustion of

remedies must be pursued with respect to constitutional

claims involving the broadcasting industry whether or

not those remedies are adequate.

In Maguire, a group of parents brought an action in

the district court seeking declaratory and injunctive

relief against broadcasting of the television program

“Wild, Wild West” before 9:00 p.m. The parents

sought to assert the Fifth Amendment rights of their

children to be free from mental harm thought to be

caused by exposure to the violence depicted in the

program. The district court dismissed the suit inter alia

for failure to exhaust administrative remedies, and the

District of Columbia Court of Appeals affirmed in a

brief per curiam opinion that was not officially reported.

The opinion noted that the Commission had regular

procedures for examining viewer complaints about tele-

vision programming and that a petition for rulemaking

on the subject of television violence was then before the

Commission. Accordingly, the court required exhaus-

tion of administrative remedies. But Maguire in no wise

can be said to stand for the proposition that “‘if there is

any power or authority to consider the issues raised in

the complaint, it resides with the FCC.” Rather it

stands for what it says: “[T]he mere existence of a

*%

A-75

putatively valid statutory or constitutional claim [does

not justify] bypassing orderly administrative proce-

dures.” 24 P&F Radio Reg.2d at 2095. Here the

plaintiffs’ position does not depend upon the notion that

the mere existence of a constitutional claim justifies

bypassing remedies with the FCC. Rather they insist

that the Communications Act does not divest the courts

of the power to hear First Amendment claims and that

the remedies which the defendant would have them

exhaust are palpably inadequate in the circumstances of

this case. Thus it is unnecessary to decide here whether

the approach taken in Maguire is appropriate. It is

sufficient to observe that Maguire did not consider a

case in which administrative remedies were obviously

inadequate.

The private defendants’ reliance upon Allen B.

Dumont Laboratories v. Carroll, 184 F.2d 153 (3d Cir.

1950), cert. denied, 340 U.S. 929, 71 S.Ct. 490, 95 L.Ed.

670 (1951), is even less well taken. That case ruled that

an attempt by the State of Pennsylvania through its

State Board of Censors to regulate movies shown on

Pennsylvania television was invalid because the field of

television regulation had been preempted by Congress

and was no longer open to the states. Moreover the

district court ruled as an alternative basis for decision

that the regulation was unconstitutional on commerce

grounds. 86 F.Supp. 813, 816 (E.D.Pa.1949). All of

this was done without referring anything to the FCC. If

the defendants’ position was correct, the Dumont courts

should have declared an absence of judicial jurisdiction

and referred the case to the FCC. Instead Dumont can

be appropriately cited in support of the contention that

the courts retain the power to free broadcasters from

illegal restraints upon their freedom to decide what

shall and shall not be broadcast.

A-76

This does not mean that the FCC could be sued in

the district courts with respect to orders which an

aggrieved party claims are in violation of the First

Amendment. As discussed previously, the power of

review of the Commission’s final orders is confined to

the. court of appeals.27 Since an agency action not

amounting to a final order is already reviewable (in

appropriate circumstances) in the district courts under

the Administrative Procedure Act (see section IC2), it

would hardly make sense to hold that a First Amend-

ment cause of action has somehow been barred. Nor

does the holding that broadcasters or other individuals

may be sued in district courts for First Amendment

violations open a pandora’s box. If Maguire is correct,

the doctrine of exhaustion of remedies will apply in

most cases. Even if Maguire were wrong, First Amend-

ment defenses?® would keep the floodgates closed just

as easily as any sweeping new theory asserting lack of

power in the federal judiciary.

Nor is the question merely one of judicial versus

administrative power. If the defendants were correct in

their assumption that the FCC possessed exclusive

power to deal with questions affecting the broadcasting

industry, there would be no way for plaintiffs injured by

violations of their First Amendment rights to receive

27 Although the question is not presented here, presumably a

district court action against an FCC official for participating in an

unconstitutional order made in formal proceedings of the Commis-

sion would flounder not on jurisdictional grounds or on state action

grounds but rather on the ground of official immunity.

28 If broadcaster action is not considered to be the equivalent

of state action, the First Amendment defense would be no state

action. If it were considered to be state action, the First Amend-

ment defense would be that the action was not an abridgement of

freedom of speech. See section IIIAI. Either defense could be

raised on a motion to dismiss for failure to state a claim and could

be handled _ust as expeditiously as a motion to dismiss for lack of

subject matter jurisdiction.

A-77

compensation for their losses, inasmuch as that agency

has no power to award damages for losses. The

defendants respond by contending that there is no such

thing as a First Amendment cause of action for dam-

ages, and, therefore, maintain that Tandem’s claim for

damages is without any legal foundation. Since the

argument also is related to the question of whether or

not the FCC has exclusive jurisdiction, it will be treated

here.29

The starting point, of course, is Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388, 91

S.Ct. 1999, 29 L.Ed.2d 619 (1971). There the Supreme

Court held that the Fourth Amendment would support

a private cause of action for damages. The defendants

rely upon the handful of cases which have attempted to

confine Bivens to its Fourth Amendment context. See,

e. g., Archuleta v. Callaway, 385 F.Supp. 384, 388

(D.Colo.1974); Moore v. Schlesinger, 384 F.Supp. 165

(D.Colo.1974); Smothers v. Columbia Broadcasting

System, Inc., 351 F.Supp. 622, 625-26 (C.D.Cal.1972)

(dictum); Davidson v. Kane, 337 F.Supp. 922, 924

(E.D.Va.1972).

In Bivens, the primary issue of concern to the Court

was whether or not the Fourth Amendment created

personal federal rights independent of those created by

state law. The Court concluded that “[T]he Fourth

Amendment operates as a limitation upon the exercise

of federal power regardless of whether the State in

whose jurisdiction that power is exercised would prohi-

bit or penalize the identical act if engaged in by a

private citizen.” 403 U.S. at 392, 91 S.Ct. at 2002.

28The question treated here is whether or not the First

Amendment ever gives rise to a cause of action for damages.

Section IVE examines the question of whether Tandem’s showing

entitles it to compensation for whatever injuries it has suffered. No

proceedings have yet been held to determine the amount of

Tandem’s damages.

A-78

Having determined that the Fourth Amendment creates

personal federal rights, it was not difficult to conclude

that the remedy of damages was available. As the

Court put it, “That damages may be obtained for

injuries consequent upon a violation of the Fourth

Amendment by federal officials should hardly seem a

surprising proposition. Historically, damages have been

regarded as the ordinary remedy for an invasion of

personal interests in liberty.” Jd. at 395, 91 S.Ct. at

2004.

[21] Similarly there can be no doubt that the First

Amendment creates personal federal rights. As the

Supreme Court stated in Schneider v. Irvington, 308

U.S. 147, 161, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939),

“This court has characterized the freedom of speech

and that of the press as fundamental personal rights and

liberties. The phrase is not an empty one and was not

lightly used.” Since damages are the ordinary remedy

for the invasion of personal interests in liberty and since

the First Amendment creates personal interests in liber-

ty, it follows that the First Amendment creates a private

cause of action for damages. Indeed most cases which

have treated the question have recognized that in light

of Bivens there is “no principled basis for limiting the

availability of damages to cases involving interests

protected by the fourth amendment.” Not<, “Damage

Remedies Against Municipalities for Constitutional Vio-

lations,” 89 Harv.L.Rev. 922, 934 (1976); Paton v. La

Prade, 524 F.2d 862 (3d Cir. 1975); States Murine

Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974);

United States ex rel. Moore v. Koelzer, 457 F.2d 892

(3d Cir. 1972); Bethea v. Reid, 445. F.2d 1163 (3d Cir.

1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30

L.Ed.2d 749 (1972); Patmore v. Carlson, 392 F.Supp.

737 (E.D.111.1975); Revis v. Laird, 391 F.Supp. 1133

(E.D.Cal.1975); Gardels v. Murphy, 377 F.Supp. 1389

(N.D.I11.1974); Butler v. United States, 365 F.Supp.

**

A-79

1035 (D.Hawaii 1973); Scheunemann v. United States,

358 F.Supp. 875 (N.D.III.1973). See Hostrap v. Board

of Junior College District No. 515, 523 F.2d 569 (7th

Cir. 1975).

The defendants insist, however, that in this case,

unlike Bivens, there are “special factors counseling

hesitation.” 403 U.S. at 396, 91 S.Ct. 1999. Specific-

ally they argue that in the cases extending Bivens the

federal employees “interfered, almost physically, with

the plaintiff in a direct and personal manner.” Aside

from the fact that this imaginative distinction cannot

begin to account for the facts of all the cases (see, e. g.,

Paton v. La Prade, supra, 524 F.2d 862) (FBI mail

surveillance gives rise to First Amendment claim),

United States ex rel. Moore v. Koelzer, supra, 457 F.2d

892 (use of false testimony and falsification of docu-

ment offered in evidence against plaintiff in prior crimi-

nal prosecution), there is nothing in the cases or in

policy to suggest that such a distinction has ever been

thought to be or should have been thought to be

dispositive. Instead the cases here properly understood

Bivens to amount to nothing less than a “sweeping

approbation of constitutionally-based causes of ac-

tion.” Brault v. Town of Milton, 527 F.2d 730, 734 (2d

Cir.), vacated on other grounds, id. at 736 (1975) (en

banc).

The preceding, of course, does not establish that

the plaintiffs are entitled to collect damages in this case.

Rather it serves to illustrate that the proper forum for

deciding whether or not damages should be awarded is

the district court. The FCC has no power to award

damages and this court cannot assume that the Con-

gress has by subtle implication denied aggrieved plain-

tiffs the right to collect damages for First Amendment

violations. If the use of the damage remedy would

threaten defendants with crushing liability, the appro-

i

A-80

priate response would be to intelligently limit the

remedy (see, e. g., Gertz v. Robert Welch, Inc., 418 U.S.

323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), not to

abrogate it altogether.

[22] Therefore the court conv.udes that the FCC is

the exclusive forum for alleged violations of the Federal

Communications Act. It is not the exclusive forum for

alleged violations of the APA or the First Amendment.

D. Primary Jurisdiciion.

Alternatively the defendants invoke the doctrine of

primary jurisdiction. That doctrine, like the doctrine of

exhaustion of remedies, “ ‘is concerned with promoting

proper relationships between the courts and adminis-

trative agencies charged with particular regulatory

duties.””” Nader v. Allegheny Airlines, Inc., 426 U.S.

290, 96 S.Ct. 1978, 48 L.Ed.2d 643, 1987 (1976),

quoting United States v. Western Pacific R.R. Co., 352

U.S. 58, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956).

[23] The doctrine of primary jurisdiction, how-

ever, is to be distinguished from the doctrine of exhaus-

tion of remedies. If a plaintiff's claim should have been

initially tendered to an administrative agency, the doc-

trine of exhaustion of remedies applies. If, on the other

hand, a plaintiffs claim is cognizable in the courts as an

original matter, but raises issues the resolution of which

requires the special expertise of an administrative

agency, the doctrine of primary jurisdiction applies. In

the latter case, the judicial process is suspended pending

referral of the issues to the administrative body for its

views. United States v. Western Pacific R.R. Co., supra,

352 U.S. at 64, 77 S.Ct. 161; General American Tank

Car Corp. v. El Dorado Terminal Co., 308 U.S. 422,

433, 60 S.Ct. 325, 84 L.Ed. 361 (1940).

A-81 :

The classic summary of the doctrine of primary

jurisdiction is contained in Far East Conference v.

United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494,

96 L.Ed. 576 (1952):

[I]n cases raising issues of fact not within the

conventional experience of judges or cases requiring

the exercise of administrative discretion, agencies

created by Congress for regulating the subject

matter should not be passed over. This is so even

though the facts after they have been appraised by

specialized competence serve as a premise for legal

consequences to be judicially defined. Uniformity

and consistency in the regulation of business en-

trusted to a particular agency are secured, and the

limited functions of review by the judiciary are

more rationally exercised, by preliminary resort for

ascertaining and interpreting the circumstances un-

derlying legal issues to agencies that are better

equipped than courts by specialization, by insight

gained through experience, and by more flexible

procedure. (emphasis added ).

[24] Essentially, then, the doctrine is designed to

secure uniformity of decisionmaking with respect to

regulated industries ( Texas & Pacific Ry. Co. v Abiline

Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553

(1907)) and to exploit the expertise of administrative

agencies in factual areas ordinarily not considered by

the courts. Nader v. Allegheny Airlines, Inc., supra, 96

S.Ct. at 1987; United States v. Radio Corporation of

America, 358 U.S. 334, 346, 52, 79 S.Ct. 457, 3 L.Ed.2d

354 (1959); United States v. Western Pacific R.R. Co.,

supra, 352 U.S. at 64, 77 S.Ct. 161.

[25] The defendants insist that the FCC’s recog-

nized expertise in balancing the delicate First Amend-

ment considerations involved in the television industry

(see, e.g., CBS v Democratic National Committee,

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supra, 412 U.S. at 102, 93 S.Ct. 2080) mandates an

initial determination by the Commission. This argu-

ment ignores the nature of the factual questions in-

volved and the position already taken by the Commis-

sion. As discussed previously, nothing would be served

by having the FCC determine the factual questions

surrounding the adoption of the family viewing policy.

The degree of FCC involvement, the extent to which it

‘permeates the family viewing policy with state action

sufficient to involve the First Amendment, and the

remedies appropriate if a violation has occurred, are all

topics peculiarly unsuited to impartial FCC scrutiny;

indeed, the FCC possesses no special expertise in dis-

cerning state action or in fashioning remedies. On the

other hand, the competence of the federal courts to

define constitutional rights and to fashion remedies for

their protection is a basic premise of common law

jurisprudence. See Bivens v. Six Unknown Federal

Narcotics Agents, supra, 403 U.S. at 395-96, 408-09, 91

S.Ct. 1999 (Harlan, J., concurring); Note, “Damage

Remedies Against Municipalities for Constitutional Vio-

lations,” 89 Harv.L.Rev. 922, 933-34 n.64 (1976). In

fact, the defendants are conspicuously silent on the

matter of which factual questions the FCC should

preliminarily decide. Moreover the First Amendment

legal questions raised either involve no special FCC

expertise (e.g., state and remedies) or are not in

controversy (e.g., the lack of FCC power to censor

protected material). They are simply not the kind of

questions which need “be considered by the Commis-

sion in the interests of a uniform and expert adminis-

tration of the regulatory scheme .. ..” United States v.

Western Pacific R.R. Co., supra, 352 U.S. at 65, 77 S.Ct.

at 166.

[26, 27] Moreover, as discussed previously, the

Commission’s beliefs as to the merits of the plaintiffs’

claims are not shrouded in secret. The courts have long

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made clear that resort to the doctrine of primary

jurisdiction is unwarranted when the agency has “made

its position clear on the issue sought to be referred to the

agency,” ( Agar Food Products Co. v. Chicago River and

Indian R.R. Co., 358 F.Supp. 1312, 1313 (N.D.IIL.

1973)) or “has clarified the factors underlying it”

( United States v. Western Pacific R.R. Co., supra, 352

U.S. at 69, 77 S.Ct. at 168). Moreover the FCC is a

party to the action and, therefore, is available to present

its views. Cf. Rosado v. Wyman, 397 U.S. 397, 407, 90

S.Ct. 1207, 25 L.Ed.2d 442 (1970). The private

defendants cite a number of cases involving the Com-

mission in which the courts are said to have “honored

the FCC’s primary jurisdiction over all forms of inter-

state communication, deferring to the agency’s expertise

prior to initiating the judicial process.” See Ambassa-

dor, Inc. v. United States, 325 U.S. 317, 324, 65 S.Ct.

1151, 1155, 89 L.Ed. 1637 (1945); MCL Commu-

nications Corp. v. Atlantic Telephone & Telegraph Co.,

496 F.2d 214, 219-20 (3d Cir. 1974); Maguire v. Post

Newsweek Stations, supra, 24 P&F Radio Reg.2d at

2095; Daly v. Columbia Broadcasting System, Inc.,

supra, 309 F.2d at 85-86; Massachusetts Universalist

Convention v. Hildreth & Rogers Co., supra, 183 F.2d at

500; Ackerman v. Columbia Broadcasting System, Inc.,

supra, 301 F.Supp. at 631; Gordon v. National

Broadcasting Co., supra, 287 F.Supp. at 455. To the

extent that they support the defendants’ position at all,

four of those cases (Daly, Hildreth, Ackerman, and

Gordon) merely hold that the Federal Communications

Act creates no private cause of action and that the

Commission is charged with the responsibility of enforc-

ing the Act’s provisions. One of them (MC/) holds that

a district court erred in failing to apply the primary

jurisdiction doctrine in circumstances where a pending

proceeding before the Commission would clarify the

scope of a prior Commission ruling’s application to a

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telephone company. Another (Ambassador) recog-

nized the Commission’s expertise in assessing the rea-

sonableness of telephone rate regulations. The defend-

ants’ strongest case (Maguire, discussed supra) simply

applied the doctrine of exhaustion of remedies to plain-

tiffs’ due process claims in circumstances where the

Commission’s “established procedure for consideration

of viewer complaints about television programming”

(24 P&F Radio Reg.2d at 2095) were thought to

provide an appropriate forum to consider “all of their

Statutory and constitutional arguments ....” Jd.30

Each and every one of the cases relied upon by the

defendants have three things in common: (1) they did

not require the Commission to adjudicate facts sur-

rounding a charge of serious misconduct involving the

Commission’s chairman and the Commission itself; (2)

they did not call upon the Commission to formulate a

theory of governmental action under the First Amend-

ment or to fashion appropriate remedies thereto; (3)

they were not matters upon which the Commission had

already clearly spoken.3' In short, although the Com-

mission’s expertise with respect to First Amendment

issues intertwined with the Communications Act is

unquestioned (e.g., fairness questions and equal time

questions), the cases cited by the defendants, in the

final analysis (to the extent that they deal with the

30 The McGuire case has also been followed in an unreported

district court decision also based on a plaintiff's complaint of

excessively violent programming by broadcasters. Polite Society,

Inc. v. WLS, Inc., No. 74-Civ. 3777 (N.D.III. 1975).

31 Of course, even if the Commission has clearly spoken on

claims arising under the Federal Communications Act, there is no

private cause of action.

**

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primary jurisdiction doctrine at all )32 merely hold that

questions within the special expertise of the Commission

should be referred thereto. In fact, Hildreth, Ackerman,

and Gordon all seem to assume that the doctrine of

primary jurisdiction has no role to play with respect to

constitutional claims against broadcasters even when

those claims are intertwined with Communications Act

issues routinely a part of the Commission’s work. If the

doctrine of primary jurisdiction had no role to play

there, it surely has no role to play here.

A mechanical application of cases applying the

primary jurisdiction doctrine to the special and unique

facts of this case would depart from the counsel that,

“No fixed formula exists for applying the doctrine of

primary jurisdiction. In every case the question is

whether the reasons for the existence of the doctrine are

present and whether the purposes it serves will be aided

by its application in the particular litigation.” United

States v. Western Pacific R.R. Co., supra, 352 U.S. at

64, 77 S.Ct. at 165. Here the reasons for the existence of

the doctrine are not present and no useful purpose

would be served by referring the case { or issues unspec-

ified by the defendants) to the Commission.

32 Several of the cases holding that Communications Act

claims should be referred to the Commission assume or declare the

existence of federal jurisdiction but find no cause of action. Under

the doctrine of primary jurisdiction a court proceeds on the

assumption that a cause of action exists, but refers questions to the

relevant administrative agency.

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Il. FACTUAL FINDINGS

The parties, of course, characterize the factual

circumstances leading up to the adoption of the family

viewing policy quite differently. None of the defendants

are prepared to accept the plaintiffs’ position that

Chairman Wiley and the Commission staff, acting on

behalf of the Commis

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