# Appendix — Writers Guild of America, West, Inc. v. American Broadcasting Cos. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2309%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 449 U.S. 824 ## Text 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. A-12 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 A-58 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 A-59 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2309%3A2. Public record. Not legal advice.