# Petition — Black Citizens for a Fair Media v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1278%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1255 ## Text Supreme Court of the U OCTOBER TERM, 1983 BLACK CITIZENS FOR A FAIR MEDIA, et ai., Petitioners, FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DANIEL R. OHLBAUM, Counsel of Record Suite 548 1200 New Hampshire Ave., N.W. Washington, D.C. 20036 (i) QUESTIONS PRESENTED FOR REVIEW 1. Whether the Federal Communications Commission can find that renewal of television and non-commercial radio licenses is in the public interest without individualiz- ed consideration of each applicant’s programming perfor- mance, in reliance upon a presumption of operation in the public interest, supplemented by a random review of the actual performance of five percent of the licensees. 2. Whether the Commission in acting on applications for renewal of commercial radio licenses may rely for all licensees upon a presumption of operation in the public in- terest, with no sampling of any licensee’s actual perfor- mance. 3. Whether the Commission has engaged in adequate, reasoned decision-making in its elimination of renewal procedures protective of the public interest. PARTIES BELOW The petitioners here, Black Citizens for a Fair Media, Chinese for Affirmative Action, the National Council of La Raza, the National Association for the Advancement of Colored People, and Henry Geller, were petitioners below. The respondents below and here are the Federal Communications Commission and the United States of Broadcasters Association, Argonaut Broadcasting Com- pany, Bahia De San Francisco Television Company, Bu- ford Television, Inc., Enterprise Publishing Company, Forward Communications Corporation, Futura Commu- nications Corporation, GCC Communications of Hous- (ii) ton, Inc., General Electric Broadcasting Company, Inc., Group One Broadcasting Company, Guaranty Broad- casting Corporation, Infinity Communications Corpora- tion, KFAB Broadcasting Company, KRLA, Inc., KULA Broadcasting Company, Lake Broadcasting Company, Inc., Lake Huron Broadcasting Corporation, May Broad- casting Company, John H. Phipps Broadcasting Stations, Inc., Seven Hills Television Company, Spanish Interna- tional Communications Corporation, Studio Broadcasting System, Division of Highwood Service, Inc., Summit Radio Corporation, Suncoast Stereo Corporation, WFDF Corporation, Wilson Communications, Inc., and WKRG- TV, Inc. Intervening below in support of petitioners was the Office of Communication of the United Church of Christ. (iii) TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW .............00000 (i) TABLE OF AUTHORITIES ............-cecceeeveeees wa Woe (iv) PTLD nie vccccccvccsccessctcsnsauvetuciebhenes 1 PENNS eisidcocncvivaccrccssustegncveeh osassusauvat 1 STATUUGRY PROVISIONS 20.0... ccccccccccccccccscccccees 2 STATEMENT OF THE CASE ......ccccccccccccccccccvcveses 4 REASONS FOR GRANTING THE WRIT ...........-.0+0006: 10 PENG oie ccnscosavdconenevedeesetesachucceteennen 21 APPTIGIT oc cc ccccsccsvocbcscvcccsevesosecesbconvesettes la Opinion of the United States Court of Appeals for the District of Columbia Circuit ............... ovescccens la Orders of the Court of Appeals Denying Rehearing end Rohearing Bt Bane 2... 2c ccsccscccccccsccesses 60a, 6la Judgment of the Court of Appeals ..........55cecceeceeees 63a Report and Order of the Federal Communications Denying Rehesring MPPTTTITTITITITTiT Titi (iv) TABLE OF AUTHORITIES Cases: Action for Children’s Television v. FCC, PGs BOE no cdctededvcsvadecsbiadeucwnn Alianza Federal de Mercedes v. FCC, EE TE ocd cccececcctnccccecdessvsest Central Florida Enterprises v. FCC, a EG HEE Nid dc va cccdccccccdcctcssaannd Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970) cert. denied, IEDs akin cadvcvéuscescenct cccccsunsaven Leflore £ oadcasting Co. v. FCC, le ED fo oikid ob oe ve seccacs consccssuese Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., eee ee Pr ere: National Association of Regulatory Utility Commissioners v. FCC, $25 F.2d 630 (D.C. Cir. 1976), cert. denied, 425 U.S. 992 (1976) Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966) .... 2... 60 cc eee Office of Communication of United Church of Christ v. FCC, 425 F.2d $43 (D.C. Cir. 1969) 2... ccc ccc cece ene n een eeees Office of Communication of United Church of Christ v. FCC, ; 707 F.2d 1413 (D.C. Cir. 1983) ... 2.2.22 0ceeeeeeeeeees Red Lion Broadcasting Co. v. FCC, TOS UB. BET CIDTDD 0 oc icc ceciccvccccccccsvvecvnceceses (v) Page Statutes and Regulations: Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. §§ 151 ef seq.: ERE SS 8 Se ee ee 11 a tia coca edsemeebessautetesovecsowds 12 es cS ee beech seddsendesassncsqucens 14 CLA ns kind dbdeevocsacecntedecesess 12, 13, 16 ae wae dwas 14 bn ndbe bbs oo6e veces vcceeaeban 12 iv. cu senseebcbnenessesosbcencwawen 12, 15 Ss dias odckenseescocetbedecencessccecntos 12 i tics. Wh dhedbacdndecedecceeseecucheres 12 i ian Keine ceesavcteseenccovesseshs ough 14 an cn ce cddocesovcetbeveccccosesovecsesoe 12 cau das eteces dbs ecceseccccocctesnash 12 Eh SES SE SE ee 4 Communications Amendments Act of 1982, Public Law 97-259, 96 Stat. 1087 .. 0... 0. cece eee eees 13 Public Law 97-35, 95 Stat. 357 (1981) .. 2.2... ccc cee cece eee 13 ere Bos vo dconaccdceowosbourdeecgatene 4 Federal Communications Commission Regulations: er an oc cce 6b asensees covecewenmeenee 14 47 CFR O.281(aXBMGIMA) .. 2.666 cee ee eee eee e eee 14 IED Src cdccceccccccccccccvcseusccescess 14 es Fan ts ic dacnbiovectctvovedsbensensetia & ee ee cc andabintnetbscncts seetangupee 8 Children’s Television Report and Policy Statement, $0 FCC 2d 1 (1974), affirmed, Action for Children’s Television v. FOC, $64 F.2d 48 (D.C. Cir. 1977) ........... 14 Deregulation of Radio, 84 FCC 2d 968 (1981), rehearing denied, $7 FCC 2d 797 (1981), affirmed in part, | Office of Communication of United Church of ; Christ v. FCC, 707 F.2d 1413 (D.C. Cir., 1983) .......... 6, 18 # (vi) Page Further Notice of Proposed Rule Making, BC Docket No. 79-219, 48 Fed. Reg. 33,499 .............4. 19 Leflore Broadcasting Co., Inc., 65 FCC 2d $56 (1977), affirmed, Leflore Broadcasting Co., Inc. v. FCC, 636 F.2d 454 (D.C. Cir. 1980) . 2.2.2... 0.00. c eee 18 Notice of Inquiry to Formulate Policies, eI ios enue Poche chacevates¥urenacede 14 Notice in Docket No. 83-670, 48 Fed. Reg. EE GUODE ia a ae ess cece ka slwneeeeneeasaa 14 Report and Order in the Matter of Children’s Television Programming and Advertising Practices, FCC 83-609, Docket No. 19142, released Jan. 4, 1984 ............ 14 Revision of Form 303, 59 FCC 2d 750 (1976) .............045- 15 SJR Communications, Inc., 42 Pike & Fischer, i NOE vies wubnwbnenedsabchcdeciccenmes 18 FCC Report No. 17,882, BC Docket No. 79-219, March 2, 1984, Mimeo 2711 ... 2.2.0... cece cece cere eeees 19 Miscellaneous: S. Rep. No. 44, 82d Cong., Ist Sess. 7(1951) .........05c eens 16 B.F. Chamberlin, Lessons in Regulating Information Flow: The FCC's Weak Track Record in Interpreting the Public Interest Standard, GPEC .5:: Bee. TEST TED viv icnsccccdpenducdacessscedec 19 IN THE Supreme Court of the United States OCTOBER TERM, 1983 No. BLACK CITIZENS FOR A FAIR MEDIA, et ai., Petitioners, Vv. FETERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OPINIONS BELOW The opinion of the Court of Appeals (App. 1a-59a) is reported at 719 F.2d 407. The orders of the Court of Ap- peals denying rehearing and rehearing en banc (App. 60a, 61a) are unreported. The Report and Order of the Federal Communications Commission (App. 65a) is reported at 46 Fed. Reg. 26236 and 49 Pike & Fischer, Radio Reg. 2d 740. The Commission’s Memorandum Opinion and Order denying rehearing (App. 161a) is reported at 87 FCC 2d 1127, 50 Pike & Fischer, Radio Reg. 2d 704. JURISDICTION The judgment of the Court of Appeals was entered on October 7, 1983 (App. 63a). Rehearing and rehearing en é 2 banc were denied on December 12, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. §§ 1254(1), 235Q(a). STATUTE INVOLVED The pertinent portions of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 ef seq. are as follows: Section 307(c): ***Upon the expiration of any license, upon ap- plication therefor, a renewal of such license may be granted from time to time for a term of not to exceed five years in the case of television broad- casting licenses, for a term not to exceed seven years in the case of radio broadcasting station licenses . . . , if the Commission finds that public interest, convenience and necessity would be served thereby . . . . In order to expedite action on applications for renewal of broadcasting sta- tion licenses and in order to avoid needless ex- pense to applicants for such renewals, the Com- mission shall not require any such applicant to file any information which previously has been furnished to the Commission or which is not di- rectly material to the considerations that affect the granting or denial of such application, but the “ommission may require any new or addi- tional facts it deems necesary to make its find- [47 U.S.C. § 307(c) (redesignated from § 307(d) by Public Law 97-259, approved Sept. 13, 1982, 96 Stat. 1087, 1093).] Section 308: (a) The Commission may grant construction permits and station licenses, or modificatiéns or renewals thereof, only upon written application therefor received by it: .. . (b) All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; the owner- ship and location of the proposed station and of the stations, if any, with which it is proposed to communicate; the frequencies and the power de- sired to be used; the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used; and such other information as it may require. The Commission, at any time after the filing of such original application and during the term of any such license, may require from an applicant or licensee further written statements of fact to enable it to determine whether such original application should be granted or denied or such license revoked. Such application and/or such statement of fact shall t2 signed by the applicant and/or licensee. [47 U.S.C. § 308(a), (b).] Section 30%(a): (a) Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which Section 308 ap- plies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon 3 ie 4 examination of such application and upon con- sideration of such other matters as the Commis- sion may officially notice, shall find that public interest, convenience and necessity would be served by the granting thereof, it shall grant such application. [47 U.S.C. § 30%a).] STATEMENT OF THE CASE This petition seeks review of a judgment’ affirming orders of the Federal Communications Commission (here- inafter the “Commission”) which amended the license renewal application forms submitted every seven years by radio stations and every five years by television broadcast stations, to eliminate all questions providing information on the applicant’s past record of program service to the public and its programming proposals for the next license term. The proceeding was instituted by the Commission by Notice of Proposed Rule Making released July 11, 1980 (J. App. 47),? which postulated that since “most licensees meet or exceed” the Commission’s programming guide- lines, and very few renewal applications had been desig- nated for hearing for failure to meet the guidelines, the then-current approach of obtaining program information 'The Court uf Appeals had jurisdiction pursuant to Section 402(a) of the Communications Act of 1934, as amended, 47 U.S.C. § 402(a), and 28 U.S.C. § 2342. *References to “J. App.” are to the Joint Appendix prepared below. A summary of the Notice is at 45 Fed. Reg. 47,444. References to “App.” are to the Appendix hereto. 5 at renewal time’ might be “a largely unnecessary paper- work and administrative burden on the licensee and the Commission.” The Commission proposed that review of individual licensee performance was best eliminated in favor of primary reliance upon a “hard look” at a random sampling of full renewal applications together with com- plaints from the public, to bring sub-par licensee perfor- mance to the Commission’s attention. (J. App. 48-49.) Following the receipt of public comment upon the pro- posed changes, the Commission released a Report and Order on May 11, 1981 adopting essentially all of its pro- posals (App. 65a). While asserting that it was not making any “changes in our technical, programming, or other substantive requirements that licensees serve the public in- ‘The Commission summed up its existing non-entertainment pro- gramming information requirements as follows (J. App. 55): “The Commission requires licensees to submit proposals for the amounts of informational programming proposed for the upcoming license term and a tabulation of the other nonsports programming. Commercial radio licensees submit this information in Questions 14, 15 and 16 of FCC Form 303-R. Television licensees submit the particulars concerning their presentation of this programming on FCC Form 303-A which is filed annually with the Commission. 6 terest,” the Commission made a “dramatic shift in our renewal procedures for broadcast licensees.” (App. 65a.) The agency abandoned its long-standing practice of ob- taining program service information from every licensee at renewal time in favor of a new postcard-size renewal ap- plication, to be used by all commercial and noncommer- cial licensees, except for “[a]t least five percent of all com- mercial TV and non-commercial licensees [who] will be se- lected at random to complete audit forms which are simi- lar to the applications they currently file for renewal of license.” (App. 66a.)* The new so-called “simplified renewal application” form (App. 122a) inquires only as to the following matters: (1) the applicant’s name, address and call let- ters; (2) whether required equal employment and ownership reports are on file with the Com- mission; ‘In a separate “radio deregulation” proceeding decided February 24, - (3) whether the applicant is in compliance with the law respecting alien ownership interests; (4) whether the applicant has been the subject of adverse findings by any court or administra- tive body concerning certain illegal conduct, e.g., monopoly, fraud, or any felony; and (5) whether the applicant has the required in- formation in its public file maintained at the sta- tion. A second feature of the new renewal process is to be a sampling of licensees for on-site inspections by Field Operations Bureau technical personnel to monitor com- pliance with technical requirements and insure that the licensees’ public files contain the required information. (App. 66a.) It was further stated that the Commission’s then Broadcast Bureau (now Mass Media Bureau) might conduct on-site inspections of licensees who submit “pro- blem applications.” (App. 66a.)° The Commission explained that “the renewal process re- mains costly and time consuming for both licensees and | the Commission. Broadcasters must reduce their records to the form demanded by the application. Once the ap- plication reaches the Commission, it must be checked in, routed to the various reviewing offices, reviewed and ul- timately stored.” (App. 69a-70a.) The Commission stated that “[uJnder the rules and policies adopted herein, the in- formation necessary to conduct an in-depth review of a licensee’s performance will be available at the station in the public inspection file. Interested citizens need only visit that file to avail themselves of the information necessary to support a complaint or petition to deny, should one be SNo such inspections have been made. appropriate.” (App. 81a.) The Commission then stated that (App. 84a): In the absence of any indications to the con- trary, the information supplied by the SRA [simplified renewal application] is thereby suffi- cient to make the statutory finding that grant of the subject renewal application would serve the public interest. However, the presumption of service in the public interest may be rebutted by SRA responses which indicate violations of Statutory requirements, or Commission regula- tions. It would also be rebutted by substantial complaints or petitions to deny alleging vio- lations of statute, the Commission’s rules or policies. Moreover, in order to insure the con- tinued viability of this presumption, we will in- stitute random long form audits of television and noncommercial radio licensees. The audit pro- cedure will provide independent assurance of the conclusions which support the presumption. (Footnotes omitted).’ *Under the new policies, commercial radio stations keep publicly available an annual issues/programs list (see note 4, supra). Commer- cial television stations keep composite week program logs, annual listings of community problems and needs and illustrative responsive programming, and current proposals for non-entertainment program- ming. (47 CFR § 73.3526.) Non-commercial station public file re- quirements are set forth in 47 CFR § 73.3527. ’The Commission stated that since it had eliminated its program percentage guidelines, commercial guidelines, etc., for radio licensees in the radio deregulation proceeding (see note 4, supra), a “long form audit” as to radio licensees “would serve no purpose.” (App. 85a.) The term “audit” is misleading as used by the Commission, since it means only the submission by a small percentage of licensees of substantial renewal information. Internal Revenue Service audits, in contrast, involve checking the accuracy of a sampling of full returns filed by all taxpayers. | has . 9 A petition for reconsideration was denied (App. 161la). The Commission rejected requests that it obtain program- ming information at renewal time from all licensees, that it include a “yes-no” question on the television renewal form as to whether the applicant has met the standards in the Commission’s processing guidelines, and that it require television licensees to tabulate the non-entertainment pro- gramming composite week data from their program logs and place this tabulation in the public file. (App. 162a- 163a.) Tabulation of the log entries was found to be an un- warranted burden on licensees. (App. 163a.)* The Court of Appeals, one judge dissenting, upheld the Commission, concluding that “the new license renewal system is adequate to permit the Commission to make the determination that a license renewal is in the public in- terest.” (App. 19a.) The court noted that “[t]he Commis- sion does not dispute that it is required affirmatively to find that a license renewal is in the public interest, and it agrees that ‘[a] broadcaster seeking renewal must run on his record, and the focus of that record is whether his pro- gramming has served the public interest.’ Brief for FCC at 14; see Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1007 (D.C. Cir. 1966).” (App. 8a.) The majority was of the view, however, that since there was nothing in the Communications Act specifically man- dating inclusion of programming-related questions in the renewal application, the Commission is “free under the Communications Act to alter the license renewal applica- *A typical log for one day can run over 20 pages. The composite week for which logs are kept is composed of seven days of the dif- ferent weeks chosen by the Commission. The task of tabulating this raw data for every station in the community is now the task of the in- terested citizen. 10 tion as it sees fit — provided that the Commission still has sufficient information to make the required ‘public in- terest’ determination.” (App. 12a.) It concluded that the Commission did have “sufficient information,” largely because the agency could properly rely upon “the input of the public” to raise programming questions as to licensee performance. The court also held that in view of the incen- tive given broadcasters to operate in the public interest by “the tools which the Commission uses to discover and punish violators,”® “the Commission has before it a presumption of service in the public interest.” (App. 18a, 17a.) The court also held that the Commission had com- plied with reasoned decision-making requirements of the Communications Act and the Administrative Procedure Act. A petition for rehearing, with a suggestion for rehearing en banc, was denied, three judges dissenting, on December 12, 1983 (App. 61a). REASONS FOR GRANTING THE WRIT This case presents a question of major importance in the administration of the broadcast licensing scheme of the Communications Act of 1934: whether the Federal Com- munications Commission can make the required finding that a broadcaster’s license renewal is in the public interest without a review of the licensee’s actual performance, substituting for such review a general presumption of ade- quate public service in the absence of public complaint, ac- *The tools referred to are citizen complaints, the long-form “audit” used for five percent of television and non-commercial licensees, and on-site technical inspections by the Field Operations Bureau, in addi- tion to available fines and license revocations. companied, with respect to television and non-commercial radio, by a random 5 percent sampling of full renewal ap- plications. In “a dramatic shift” in its renewal procedures for broadcast licensees, the Commission has discarded a long history of requiring all broadcast licensees to furnish in- formation concerning their performance at renewal time. From now on, the Commission will be acting on the vast majority of license renewals with no information from the licensee on such material elements of his performance as the time devoted to news and public affairs, programs of particular interest to children, local programming, and the time devoted to commercials. Only 5% of all commercial television licensees and non-commercial radio and televi- sion licensees will file so-called “long form audit” renewal applications similar to the renewal applications previously submitted by all broadcast licensees. All commercial radio stations, and 95% of the television licensees (commercial and non-commercial) and non-commercial radio licensees will be relieved of this requirement. This is indeed a dramatic shift and one which potentially affects the broad- cast service received by every household in America. It is, furthermore, a shift in procedure which is at odds with the entire Congressional scheme for regulating the use of the radio spectrum for broadcast purposes. Congress, if it had so chosen, might have created a broadcasting regulatory scheme relying upon random checks of compliance with substantive public interest stan- dards and a presumption of service in the public interest in the absence of complaint from the public. Such a scheme would indeed have little use for substantial renewal ap- plications to be submitted by every licensee. As the Com- munications Act of 1934 makes amply clear, however, 12 Congress took a quite different course. In order “to main- tain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time,” 47 U.S.C. § 301, Congress devis- ed a scheme of individual broadcast licenses which may be granted, voluntarily modified, transferred, and renewed only upon a finding that the public interest would be serv- ed, a finding made in each case upon the basis of a formal written application. The application process is the cor- nerstone of the regulatory scheme. Thus, a written application is required for: a construc- tion permit, which precedes regular licensing (47 U.S.C. $§ 308(a), 309(a), 319(a)); a license to operate for a limited term, which is granted upon completion of construction in accord with the terms of the construction permit (47 U.S.C. §§ 307(a), 308(a), 30%(a), 319%(c)); a modification of license (47 U.S.C. §§ 308(a), 309%(a)); an assignment of license (47 U.S.C. § 310(d)); and, most pertinent here, every renewal of license (47 U.S.C. §§ 307(c), 308(a), 30%a)). The application for renewal of a broadcast license is re- quired to set forth “such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station; * * * the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used; and such other information as it may require.” 47 U.S.C. § 308(b). A renewal may be granted only “if the Commission finds that public interest, convenience, and necessity would be served thereby,” 47 U.S.C. § 307(c). Section 30%(a) provides: 13 “Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which Section 308 ap- plies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon examination of such application and upon con- sideration of such other matters as the Commis- sion may officially notice, shall find that public interest, convenience and necessity would be served by the granting thereof, it shall grant such application.” The obvious purport of the statute, therefore, is that every broadcast licensee must demonstrate in the renewal application, with respect to major elements of its perfor- mance reasonably reportable in application form, that a grant of another license term is justified. Furthermore, the governing public interest standard un- questionably focuses largely upon a licensee’s service to its community. “Licenses to broadcast do not confer owner- ship of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47 U.S.C. § 307(d).™ The statute mandates the issuance of licenses if the ‘public convenience, interest, or necessity will be served thereby.’ 47 U.S.C. § 307(a). In applying this standard, the Com- mission for 40 years has been choosing licensees based in part on their program proposals.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 394 (1969). '°Congress in 1981 extended broadcast radio licenses to seven years and television licenses to five years. Public Law 97-35, 95 Stat. 357, 736. The applicable subsection, 307(d), was redesignated as 307(c) by the Communications Amendments Act of 1982, Public Law 97-259, 96 Stat. 1087, 1093. 14 The proposition that a licensee’s program service is an essential component of the public interest is not at issue in this case. The Commission here stated that “[w]je have not adopted any changes in our technical, programming, or other substantive requirements that licensees serve the public interest. Only procedural requirements have been altered.” (App. 67a.) And the Court of Appeals specifical- ly noted the Commission’s agreement that a “broadcaster seeking renewal must run on his record, and the focus of that record is whether his programming has served the public interest.” (App. 8a.) Thus, the Communications Act imposes upon broadcast licensees the duty to render a reasonable amount of local and informational programming.'' The Commission has processing guidelines for commercial television stations (other than certain UHF stations),'? and it requires licensees to direct some programs to the needs and interests of children. Children’s Television Report and Policy Statement, 50 FCC 2d 1, 6, 8 (1974), aff'd Action Sor Children’s Television v. FCC, 564 F.2d 458 (D.C. Cir. 1977); Report and Order in the Matter of Children’s Television Programming and Advertising Practices, FCC 83-609, Docket No. 19142, released January 4, 1984, '' See Sections 307(b), 315(a), 47 U.S.C. §§ 307(b), 315(a); Notice of Inquiry to Formulate Policies, 27 FCC 2d $80, 581 (1971). See also in- Jra, p. 18. '2These guidelines contain standards on commercial matter and percentages of time between 6 a.m. and midnight devoted to local pro- gramming (5%); informational (news plus public affairs) programm- ing (5%); and total non-entertainment programming (10%), as well as on substantial variations between prior program representations and actual performance. See 47 CFR 0.281(aX(7); (aX8\iiMA); (aX 10Mii). The guidelines are now the subject of a notice of proposed rulemaking 83-670, 48 Fed. Reg. 37,239 (Aug. 17, 1983). 15 The Commission’s new “postcard renewal” scheme abandons the application renewal process mandated by Congress, and relies, for the great majority of television and non-commercial licensees, upon the public to present information which will show that a renewal is not in the public interest. Yet, data on a licensee’s performance is conceded to be relevant, it is readily assembled by the licensee, whose own performance it reflects, and the Com- mission has previously given the assurance that it is the minimum necessary for the Commission to perform its un- changing duty. Thus, the Commission, in amending its broadcast renewal forms in 1976, stated (in comments ap- plicable to both radio and television forms) that the revis- ed forms were designed to better focus the Commission’s attention “on those program categories which are par- ticularly relevant to our public interest determination, /.e., news, public affairs, all other programming exclusive of entertainment and sports, and commercial matter,” and “to elicit only that information needed by the Commission to discharge its statutory responsibilities.” Revision of Form 303, 59 FCC 2d 750, 769, 751 (1976). The burden put upon the licensee by Congress to submit information justifying renewal has now been converted by the Com- mission into a burden on the public to bring forth infor- mation supporting a denial of renewal. There is nothing in the legislative history of the Com- munications Act, or in its interpretation by any court, to justify the Commission’s “dramatic shift.” Thus, National Association of Regulatory Utility Commissioners v. FCC, $25 F.2d 630, 645 (D.C. Cir. 1976), cert. denied, 425 U.S. 992 (1976), which was strongly relied upon by the Court of Appeals to give the Commission practically unfettered dis- cretion as to what information it will require from renewal applicants (App. 9a-l1}a), held no more than that 47 U.S.C. § 308 does not require Commission consideration 16° of the financial qualifications of Specialized Mobile Radio Systems'? where financial fitness is properly found to be “irrelevant to its regulatory scheme.” This decision has no application to concededly material and significant public interest considerations. The lower court’s reliance (App. 10a) upon the 1952 . amendment to then Section 307(d) of the Act (now § 307(c)) to delete a provision which required that action on renewal applications “be limited to and governed by the same considerations and practice which affect the granting of original applications,” is similarly misplaced. This change was designed to remove an unrealistic requirement, and nothing in the legislative history suggests that it was thought to authorize the Commission to refuse to inquire into each applicant’s program performance at renewal time. '¢ “[I}t has been basic to the understanding of the renewal process by both Congress and the Commission that a li- censee runs on his past record . . .” Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 735 (D.C. Cir. 1976), and “in a renewal proceeding past performance is [the Com- 'SSMRSs were a new category of private mobile operators providing service to third parties on a commercial basis in the land mobile radio services '*To the contrary, the Senate committee report states that some matters, such as financial ability to construct a station or ability to operate it, might no longer be relevant at renewal time, but that “ijt should be emphasized that while the recommended amendment does eliminate the necessity for the type of involved and searching examina- tion which the Commission must make in granting an original license, it does not in any way impair the Commission's right and duty to con- sider, in the case of a station which has been in operation and is apply- ing for renewal, the overall performance of that station against the broad standard of public interest, convenience and necessity.” S. Rep. No. 44, 82d Cong., Ist Sess., p.. 7 (1951). 17 mission’s] best criterion.” Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1007 (D.C. Cir. 1966). The Commission has now simply refused to obtain from the licensee the information on his past record necessary to make the required public interest find- ing,'* in almost total reliance upon its own presumption that, in the absence of a complaint from a member of the public, a licensee has a broadcast record warranting renewal. The real question in this case is whether the Commission is to be permitted through regulatory Aara kiri to disable itself from administering the Congressionally mandated public interest standard of the Communications Act. We submit that the question is one of major significance, and that the decision below warrants review by this Court. II. Whatever might be said for the Commission’s sampling process for télevision, in renewing commercial radio li- censes the Commission is now acting on over 8000 renewals with no programming information from even a 'SThe Court of Appeals concluded (App. 13a) that the Commission would have enough information from several sources “to make the re- quired determination that a licensee is in compliance with the substan- tive policies of the Commission — policies that are still concerned with programming and are not affected by the decision in question.” The court’s only suppport for this conclusion was a reference to the input of the public, “in many ways the most citical informa- . + » -” (App. 13a.) Then, in apparent recognition that public input on the renewals of thousands of broadcast stations cannot possibly in- sure the adequate presentation to the Commission of programming in- formation the court declared (App. 14a) that “the new renewal system does not rely entirely on the public,” without indicating at any point what other source there might be of programming information now eliminated from the renewal form. , 18 sample of them, since no commercial radio licensees need file the so-called “audit” long form renewal application. While commercial radio has been “deregulated” (see note 4, supra), these radio licensees are still subject to the public interest requirement of providing non-entertain- ment programming responsive to community issues. De- regulation of Radio, 84 FCC 2d 968, 978-79 (1981), aff'd in part Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983), which established that the amount of essential public service pro- gramming, however defined, is relevant to the public in- terest judgment at renewal. (707 F.2d at 1433.) Therefore, even if the sampling technique adopted for television could be sustained as in compliance with the Communica- tions Act, the absence of even a sampling process for com- mercial radio leaves the Commission’s radio renewals devoid of any conceivable legitimizing rationale. This point has added significance in that there is no assurance that the Commission will continue to sample 5 percent of television renewal applications, if its radio pro- cedure is sustained. Rather, what is sanctioned today in radio can well become the standard tomorrow for televi- sion. '* Finally, even if the statute could be construed to give the Commission the authority it claims, the Commission has failed to articulate a reasoned basis fcr thrusting upon the public the primary burden of presenting information on programming at renewal time. The Commission conceded- ly must have “sufficient information” (App. 12a) before it ‘See, note 12, supra. y | 1S to make the public interest judgment as to each renewal applicant, in order to ferret out those who render inade- quate service.'? But the only information the Com- mission has is that the public has not complained. There is simply no basis for the Commission to infer — to assume — that such lack of complaint means that the licensee is meeting its minimal public service obligations. As the dis- sent in the Court of Appeals stated (App. 56a-57a), Reliance on public participation to ensure that most violators of the programming obligation are caught is only valid if it can be shown that the public complains about most violators. The Commission has not even attempted to make such a showing. And it is unlikely that it could do so. The high cost of participation, in time and money, exerts a strong constraining pressure on the public. '* Moreover, the Commission not only initially eliminated all logs in radio, but upon remand,'® has still decided to ''E.g., Leflore Broadcasting Co., Inc., 65 FCC 2d $56, 567 (1977), aff'd on other grounds, Leflore Broadcasting Co., Inc. v. FCC, 636 F.2d 454, 462-63 (D.C. Cir. 1980) (non-entertainment programming not adequate); S/R Communications, Inc., 42 Pike & Fischer, Radio Reg. 2d 920, 921 (1978) (non-entertainment programming not ade- quate). '*In the period between fiscal years 1969 and 1981, the Commission reported that there were 560 petitions to deny or substantial formal objections to renewal applications — less than 50 a year. Report of Broadcast Bureau prepared in connection with Central Florida Enter- prises v. FCC, 683 F.2d 503 (D.C. Cir. 1982). In a recent study of the Commision’s license renewal process it was found that in 1981 “[flew petitions to deny were being filed, and fewer still focused on program- ming grounds.” B.F. Chamberlin, Lessons in Regulating Information Flow: The FCC's Weak Track Record In Interpreting the Public In- terest Standard, 6 N.C.L. Rev. 1057, 1095 (1982) (interview with Deputy Chief of the Broadcast Bureau.) '*See note 4, supra. Despite its reliance on public participation, the eee (App. 17a). 20 not require the logging of all public service program- ming.?° It is difficult to see how the agency can justify, and the court below approve, calling upon the public to monitor station performance while at the same time depriving the public of the practical means to do so. See Office of Communication of United Church of Christ v. FCC, supra, 707 F.2d at 1441-42, characterizing such ac- tion as “almost beyond belief.” And, it is plainly not reasonable to put upon the public the burden of tabulating weekly composites from raw tele- vision station logs, rather than leave this task to the licensee who seeks the privilege of using the public spec- trum and who needs in any event to know how it has per- formed. All the Commission had to say about this was that the burden on licensees of compiling the data was “unwarranted.” (App. 163a.) This is not reasoned decision-making where existing public protections are being removed. See Motor Vehicle Manufacturers Assn. v. State Farm Mutual Automobile Ins. Co., __. U.S. ___, 103 S. Ct. 2856 (1983). Rather, the above actions constitute “danger signals” that the agency has “. . . not genuinely engaged in reasoned deci- sion-making.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971). What is involved is a “curious neutrality-in- favor-of-the-licensee” in the critical renewal process. Of- 2°Instead, the Commission only requires licensees to give five or more examples of public service programming on a quarterly instead of an annual basis. See FCC Report No. 17882, BC Docket 79-219, March 2, 1984, Mimeo 2711. Such a list is thus simply illustrative, and could amount to an hour or so of the year’s programming, thus leav- ing the public and any comparative challenger adrift as to the amount of public service programming. 21 fice of Communication of United Church of Christ v. FCC, 425 F.2d 543, 547 (D.C. Cir. 1969). CONCLUSION The decision below is inconsistent with the Communica- tions Act on a question involving the radio and television service received by the entire listening and viewing public of the United States. The Commission has forgotten that “[i}t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). It is respectfully submitted that the petition for a writ of cer- tiorari should be granted. DANIEL R. OHLBAUM, Counsel of Record Suite 548 1200 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 872-3614 HENRY GELLER Suite 900 1776 K Street, N.W. Washington, D.C. 20006 WILHELMINA REUBEN COOKE Citizens Communications Center c/o Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 Counsel for Petitioners March, 1984 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 81-1710 BLACK CITIZENS FOR A FAIR MEDIA, et al., PETITIONERS Vv. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS AMERICAN BROADCASTING COMPANIES, INC., NATIONAL ASSOCIATION OF BROADCASTERS, NATIONAL RADIO BROADCASTERS ASSOCIATION, OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST, CBS, INc., ARGONAUT BROADCASTING COMPANY, et al., INTERVENORS No. 81-2277 HENRY GELLER, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS NATIONAL ASSOCIATION OF BROADCASTERS, INTERVENOR 2a Petitions for Review of an Order of the Federal Communications Commission Argued May 24, 1982 Decided October 7, 1983 Jeffrey H. Olson, with whom Karen Peltz Strauss was on the brief, for petitioners in 81-1710. Henry Geller and Ira Barron were on the brief, for pe- titioner in 81-2277. Gregory M. Christopher, Counsel, Federal Communica- tions Commission, with whom Stephen A. Sharp, General Counsel, Daniel M. Armstrong, Associate General Coun- sel, Federal Communications Commission, Barry Gross- man and Stephen F. Ross, Attorneys, Department of Justice, were: on the brief, for respondents. Marion L. Jetton and Margaret G. Halpern, Attorneys, Department of Justice, also entered appearances for respondent, USA. Stephen A. Weiswasser, with whom J. Roger Wollen- berg and Susan Low Bloch for CBS, Inc., and James A. McKenna, Jr., Carl R. Ramey and Douglas S. Land for ABC, Inc., et al., and Erwin G. Krasnow and Barry D. Umansky for National Association of Broadcasters and Thomas Schattenfield for National Radio Broadcasters Association, were on the brief, for intervenors, CBS, Inc., et al., in 81-1710 and 81-2277. Donna A. Demac was on the statement in lieu of brief for intervenor, Office of Communication of the United Church of Christ in 81-1710. Robert H. Bohn, Jr., and Honora Kaplan were on the brief, for amicus curiae, Action for Children’s Television urging remand in 81-1710. 3a Before: WRIGHT and Bork, Circuit Judges, and JAMESON,* Senior District Judge for the Dis- trict of Montana. Opinion for the Court filed by Circuit Judge Bork. Dissenting opinion filed by Circuit Judge WRIGHT. Bork, Circuit Judge: Petitioners, Black Citizens for a Fair Media, et al.,’ challenge the Federal Communications Commission’s decision to adopt a simplified renewal ap- plication for radio and television broadcast licensees. This decision, made after a full rulemaking procedure, effec- tively eliminates from the license renewal application certain information which the Commission had previously required licensees to submit. Petitioners claim that this action is contrary to the substantive requirements of the Communications Act and that, in making the decision, the FCC failed to comply with the reasoned decision- making requirements of the Administrative Procedure Act and the Communications Act. We hold to the con- trary and affirm the action of the Commission. I. This case is a companion to Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983), and National Black Media Coalition v. FCC, 706 F.2d 1224 (D.C. Cir. 1983). All three cases involve challenges to the effort of the Federal Communica- tions Commission (“FCC” or “Commission”) to reduce the regulatory burden on television and radio licensees. In July 1980, the Commission filed a Notice of Pro- posed Rulemaking “to determine whether the public in- * Sitting by designation pursuant to 28 U.S.C. § 294(d). 1 Petitioners also include Henry Geller, Chinese for Affirm- ative Action, National Council of La Raza, and the NAACP. 4a terest would be served by a revamping of [the] broad- cast renewal application procedures.” Revision of Applica- ‘tions for Renewal of License of Commercial and Noncom- mercial AM, FM, and Television Licensees, FCC No. 80- 327 (July 11, 1980), at 1. (“Notice”) .* This Notice, which resulted in the decision now being challenged, proposed a new procedure for renewing broadcast licenses. In the past, licensees were required to file extensive applica- tions * containing, for example, such information as pro- posed non-entertainment and children’s programming, the number of public service announcements which were broadcast, and the degree of compliance with FCC re- quirements for ascertainment of community needs and interests. After reviewing the mechanics of this system, the FCC stated that its.experience has shown that most licensees meet or exceed our operating guidelines .... [WJe have found that the best vehicle for bringing violations to our atten- tion has been public participation in our processes through petitions to deny, informal objections, and compiaints. Notice at 2. The FCC concluded that the application might place an unnecessary administrative and paper- work burden on both licensees and the Commission. The Notice therefore proposed a new application sys- tem that would consist of five different review compo- nents. First, all licensees applying for renewal would * A summary of this Notice may be found at 45 Fed. Reg. 47,444 (1980). _ Ae the Conmmiasion noted, the commercial Selovieien supe Sa submit ~ postcard-sized. simplified renewal application containi. g answers to five questions.‘ The second component is a long form audit—essentially the old renewal form—which would be sent to at least 5% of all television and non-commercial radio stations. (The FCC represents that, in fact, it has been selecting 10% of the eligible licensees for the long-form audit since the new procedures went into effect. Brief for FCC at 9 n.3.) Third, the FCC would continue to re- quire licensees to make publicly available information as to how the licensees ascertained the problems and needs of their communities and the manner in which the licensee’s programming addressed these problems and needs. Television stations would also have to include pro- gramming logs and programming “promises” in their public files.© The FCC stated its belief that this public file would make sufficient information available to per- mit the public to test any concerns regarding a licensee’s fulfillment of the public service requirement*—an im- 6a Fourth, the FCC’s Field Operations Bureau would con- duct random audits of licensees to inspect technical op- erations and to insure that all required information was being made available to the public. Fifth, the Broadcast Bureau would conduct on-site inspections into charges of licensee misconduct. The Bureau would also have the power to conduct audits of licensees who submit problem applications. Other licensees might be audited on a ran- dom basis. On May 11, 1981, after receiving numerous comments from various broadcast groups and “public interest” me- dia groups, the FCC issued its report and order substan- tially adopting the proposals as put forward in the No- tice. Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommer- cial AM, FM, and Television Licensees, 49 Rad. Reg. 2d (P & F) 740 (1981) (“Decision”). In promulgating the new system, the FCC stressed that the rulemaking “pro- ceeding was never intended to change our current sub- stantive requirements for the broadcast industry, and it does not alter the substance of licensee obligations to serve the public interest.” Id. at 748. Reconsideration of 7a § 112, 96 Stat. 1087, 1098 (to be codified at 47 U.S.C. § 307(c)). Petitioners say the FCC is unable to make that affirmative determination without the inclusion of program-related questions in the renewal form. Second, petitioners argue that even if the FCC has the discretion to alter the renewal procedures in the proposed man- ner, the Commission failed to comply with the reasoned decision-making requirements of the Communications Act and Administrative Procedure Act. We address these points in order. A. In determining the mandate of the Communications Act, 47 U.S.C. § 151 et seg. (1976 & Supp. V 1981), this court must focus on the language of the Act itself, with due deference to the Commission’s interpretation of its own organic law. Subject to the review we discuss below, the FCC is entitled to reconsider and revise its views as to the public interest and the means needed to protect that interest, though it must give a sufficient explanation of that change. See Central Florida Enterprises, Inc. Vv. FCC, 598 F.2d 37, 49 (D.C. Cir. 1978). The language interest standard is “a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy.” FCC v. Potte- ville Broadcasting Co., 309 U.S. 184, 188 (1940). For years in the case of television broadcasting licenses, for a term of not to exceed seven years in the case of radio broadcasting station licenses, and for a term of not to exceed ten years in the case of other licenses, if the Commission finds that public interest, con- venience, and necessity would be served thereby. 47 U.S.C. 307(d) (1976), as amended by the Communica- tions Amendments Act of 1982, Pub. L. No. 97-259, § 112, 96 Stat. 1087, 1093 (to be codified at 47 U.S.C. § 307(c)). Petitioners also refer to section 309(a) which requires the Commission to determine for each application filed with it whether the public interest, convenience and necessity will be served by the granting of such application. 47 U.S.C. § 309(a) (1976). Petitioners then argue that, although the “public in- terest, convenience and necessity” is not defined in the statute, the term “public interest” has historically been defined in terms of nonenter- tainment programming... . [A] licensee’s past non- entertainment programming performance is the essen- tial criterion upon which the affirmative public in- terest determination must be made at renewal time. Brief for Petitioners Black Citizens for a Fair Media, et al, (“BCFM”) at 22-23. In sum, petitioners’ position is that the simplified renewal application violates the FCC’s statutory mandate because it eliminates all questions con- cerning nonentertainment programming. The Commission does not dispute that it is required affirmatively to find that a license renewal is in the public interest, and it agrees that “[a] broadcaster seeking re- newal must run on his record, and the focus of that record is whether his programming has served the public interest.” Brief for FCC at 14; see Office of Communica- tion of the United Church of Christ v. FCC, 359 F.2d 994, 1007 (D.C. Cir. 1966) (United Church I). All that Mhatpee em Rega ter iyson wher ved aplaece ners ereafis: tions relating to certain entertainment programming 9a is in dispute is whether the FCC is required to include programming-related questions in its renewal application. An examination of the statute and case law clearly shows that such questions are not statutorily required and that the FCC has the discretion to determine whether to include them. First, it is obvious from reading the rele- vant statutory sections—sections 307(c), 308(b), and 809(a) of Title 47—that Congress did not prescribe spe- cific inquiry into programming. Indeed section 308(b) explicitly addresses the issue of applications and lists certain subjects about which the Commission may in- that * Section 308(b) provides: All applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe as to the citi- zenship, character, technical, and other qualifications of the applicant to operate the station; the ownership and location of the proposed station and of the stations, if any, with which it is proposed to com- municate; the frequencies and the power desired to be used ; the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used; and such other infor- mation as it may requite. The Commission, at any time after the filing of such original application and during the term of any such license, may require from an appli- cant or licensee further written statements of fact to enable it to determine whether such original should be granted or denied or such license Such application and/or such statement of fact shall be signed by the applicant and/or licensee. 47 U.S.C. §308(b) (1976). 10a [Section 308(b)] leaves it within the discretion of the Commission to decide which facts relating to such factors it wishes to have set forth in applications. National Association of Regulatory Utility Commissioners v. FCC, 525 F:2d 630, 645 (D.C. Cir.), cert. denied, 425 U.S. 992 (1976). Petitioners contend, in effect, that an empowering statute that explicitly grants the Commission broad authority must be read implicitly to impose a highly specific duty. Without more, this is a dubious proposition. A review of the legislative history of the Communica- tions Act and past actions of the FCC reinforces our read- ing of the statutory text. Prior to 1952, the Communi- cations Act limited the FCC’s discretion to grant renewal by requiring the FCC to employ the same practices and considerations it would employ if it were granting an initial license. In 1952, however, Congress eliminated this requirement and inserted the more general “public interest, convenience, and necessity” standard. Communi- cations Act Amendments, 1952, ch. 879, $6(a), 66 Stat. 711, 714-715. The House Report clearly shows that Con- gress wanted to reduce the regulatory burden on licensees and grant the FCC discretion to tailor the renewal form as it saw fit. See H.R. Rep. No. 1750, 82d Cong., 2d Sess., reprinted in 1952 U.S. Code Cong. & Ad. News 2234.** In the past, the Commission has frequently added and subtracted questions as it deemed appropriate. For example, it was not until the 1960’s and 1970’s that ques- tions concerning ascertainment of community needs and % The Report notes: Considerable dissatisfaction was expressed . . . with the burdensome requirements which applicants for renewal sometimes have been compelled to meet in the way of furnishing detailed information. H.R. Rep. No. 1750, supra, at 8, reprinted in 1952 U.S. Code Cong. & Ad. News at 2242. children’s programming were added to the form." Cer- tainly, if the FCC can add specific questions, it can delete them when circumstances warrant. Moreover, the Commission frequently decides to monitor and enforce certain aspects of a licensee’s performance— e.g., compliance with the fairness doctrine—on an ad hoc basis rather than at the time for license renewal. See National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095, 1115-16 (D.C. Cir. 1977), cert. denied, 436 U.S. 926 (1978) (Communications Act does not re- quire FCC to review fairness doctrine compliance at re- newal time; decision to review on ad hoc basis is reason- able exercise of discretion). Thus, the legislative history of the Communications Act and past FCC actions make clear that the FCC is in no way required to retain certain questions, whether program-related or not, in the renewal application.” Finally, case law strongly supports the broad exercise of FCC discretion both to define the public interest and to determine what procedures best assure protection of that interest. As the Supreme Court has pointed out: Necessarily, therefore, the subordinate questions of procedure in.ascertaining the public interest, when the Commission’s licensing authority is invoked... were explicitly and by implication left to the Com- mission’s own devising, so long, of course, as it observes the basic requirements designed for the pro- tection of private as well as public interest. FCC v. Pottsville Broadcasting Co., 309 U.S. at 188. % See Commission En Banc Programming Inquiry, 44 F.C.C. 2308, 2316 (1960); Formulation of Rules and Policies Relating to the Renewal of Broadcast Lictems, 48 F.C.C.2d ( : % The statute does require the inclusion of certain tech- nical information such as the nature of licensee ownership, although it does not prescribe specific questions. 47 U.S.C. § 308(b) (1976). 12a Moreover, the Supreme Court recently found that this discretion is particularly broad in the area of program- ming. In FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981), the Court upheld a decision by the FCC not to review entertainment format changes in the context of a license renewal application, noting that “the Commis- sion’s judgment regarding how the public interest is best served is entitled to substantial judicial deference.” Id. at 596. See also National Tour Brokers Association v. ICC, 671 F.2d 528, 531-32 (D.C. Cir. 1982) (upholding revised ICC licensing procedure involving “public interest” de- termination; prior ICC interpretation of statute does not forever bind agency).“ There can be little question that the FCC is free under the Communications Act to alter the license renewal application as it sees fit—provided that the Commission still has sufficient information to make the required “public interest” determination. This latter issue is the crux of petitioners’ complaint. Petitioners contend that even if the FCC has discretion to alter the application, the changes that the Commission has adopted so completely eliminate important informa- tion as to make meaningful enforcement of the public in- terest standard impossible. Although the FCC has deleted from the application many questions which previously supplied substantial information, we believe that it was not arbitrary or capricious for the Commission to con- clude, in the exercise of its discretion, that it still has sufficient information to make the “public interest” de- termination. 18 National Tour Brokers is in many ways analogous to this case. In the former, the National Tour Brokers Association challenged the ICC’s simplification of its licensing procedures for passenger tour brokers. The court upheld the agency’s 13a The Commission does not propose to rely solely on the postcard application to make the “public interest” finding. The postcard renewal form is one of several sources of information (direct and indirect) on the basis of which the Commission will make its renewal decision. This in- formation, taken together, does permit the FCC to make the required determination that a licensee is in compli- ance with the substantive policies of the Commission— policies that are still concerned with programming and are not affected by the decision in question.“ A brief review of the renewal system illustrates this point. First, the Commission has the renewal form itself which provides (1) information concerning a licensee’s equal opportunity program, (2) a description of a li- censee’s other media interests, (3) a certification of com- pliance with the alien ownership requirements of the act, (4) disclosures about a licensee’s character, and (5) a certification that the licensee has placed all required documents in its public file. Second, the FCC will have the input of the public. This is in many ways the most critical information, as the Commission has “found that the best vehicle for bringing violations to [its] attention has been public participation in [its] processes through petitions to deny, informal ob- jections, and complaints.” Notice at 2. Under the new renewal system public input provides information in two ways. As the Notice pointed out, the public brings viola- tions to the attention of the FCC. Thus, public silence supports an inference that a licensee has been complying with FCC policies.“ Such an inference is of course not in 14 Petitioners concede that the great majority of broad- casters “are responsible and will follow the policies, with or without these supplementary procedures.” Brief for Petitioner Henry Geller at 11. Thus, the question is whether the renewal system will ferret out the few broadcasters who do not comply with the substantive policies. 4% From ail indications, the public has not been reticent about registering complaints. During the 12-month period l4a any way conclusive; but it is a factor which the FCC may weigh in making a “public interest” determination. Petitioners contend that this reliance on the public con- stitutes an impermissible shift of the FCC’s statutory duty onto the public. This argument, however, overstates the FCC’s reliance on public participation. Contrary to assertions by petitioners, the new renewal system does not rely entirely on the public. Rather, information pro- vided by the public is but one factor, albeit an important factor, in the overall renewal scheme. Moreover, the de- gree of reliance is not unreasonable because, as the Com- mission notes, the public is quite aware of licensees’ pro- gramming. Brief for FCC at 22. Such reliance on the public is especially warranted in an era of limited re- sources when the FCC must allocate its budget over a wide range of regulated activities. Cf. United Church I, 859 F.2d at 1004-05 (recognizing importance of public participation in renewal process, given limited staff and resources). The public’s responsibility in the prior system was also substantial. Indeed, it was the FCC’s recogni- tion of the importance of the public’s role that led, in part, to the promulgation of the new system. Finally, petitioners argue that, even if the FCC’s reli- ance on the public is permissible, the Commission has made it impossible for the public to play an active role in the renewal procedure. In this regard, petitioners point to FCC actions which petitioners claim have severely limited the information licensees must provide to the public.** In order to determine the validity of this claim, through October 1981, approximately 3000 programming- related complaints were sent to the FCC, not including or- ganized write-in campaigns. Brief for FCC at 22 n.25. 4 It should be noted that the Decision is premised, in part, on the Commission’s belief that sufficient information is available in the public file. 1Sa we examine separately the public file requirements of television and radio licensees."” Television licensees must place a substantial amount of information in their public file. For example, a licensee must include documentation concerning ascertainment of community problems as well as an annual list of no more than ten significant problems or needs of the community served, along with examples of programs which meet these problems or needs. 47 C.F.R. § 73.3526(a) (9) (1982). In addition, television licensees must maintain program logs for the composite week and keep on file current “promises” concerning presentation of nonentertainment programming; if a licensee changes its general plans for such programming, it must then file an update noting the changes and the new programming promises.** Id. § 73.3526(a) (8). Finally, television licensees must also maintain raw program logs (a written record of every- thing a licensee broadcasts), id. § 73.8526(a) (10), and make these logs available for public inspection in ac- cordance with certain procedures, 47 C.F.R. § 73.1850 (1982).” This information is sufficient to permit the pub- 17 Licensees must certify on the renewal application that all required information has been placed in the public file. If a licensee so stated but in fact failed to provide such infor- mation, it would commit a serious violation and would be subject to FCC sanctions. defined a “substantial deviation,” the occurrence of which requires an update, as a 15% decrease in any one of the three nonentertainment categories or as a 20% decrease overall. Id, at 1129 n.5. tion as to a licensee’s The petitioners would prefer composite week logs which tabulate into programming categories a licensee’s petitioners spe- 16a lic to review a station’s programming performance.” In contrast, radio licensees need file only an annual issues/programs list** and an explanation of the meth- odology used to compile the list.“ Petitioners argue that a yearly tabulation of composite week logs in which percent- age figures for news, public affairs, and “others” (exclusive of entertainment and sports) are listed. The FCC eliminated Form 308-A because in its view the burden on the licensee of completing the form was unwar- ranted, Reconsideration Decision at 1128. However, the cita- tion accompanying this statement refers to a paragraph of the Decision which discusses the burden on the Commission. Decision at 754-55. Either of these burden reductions is an advantage the Commission is entitled to weigh in its decision; under the new system, the Commission need not review the logs and the licensee is not required to prepare them (although it may do so). The assessment of this benefit and the im- portance of tabulated logs we leave to the Commission. There until 1978. Renewal of Broadcast Licenses, 48 F.C.C.2d 1, 70 (1978). * Petitioner BCFM also complains that the FCC’s decision Re. 17a this list is too insubstantial to permit meaningful review by the public of a station’s programming and urge the inclusion of program logs. In a companion case dealing with the FCC’s general deregulation of radio, we re- manded the Commission’s decision to do away with the logging requirement. Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1418 (D.C. Cir. 1988) (United Church III). On remand, the Com- mission will decide what logging requirement, if any, is appropriate in the deregulated environment. Given the Commission’s wide latitude in the practical implementa- tion of Congress’ will, we do not find that the renewal procedure mechanism adds any new factors to the cal- culus already required by United Church III. The new renewal procedure will function acceptably given what- ever logging requirement the Commission (subject to judicial review) eventually adopts in response to our re- mand. Accordingly, we neither invalidate the new re- newal system on this basis nor provide any additional condition that any logging requirement must meet. Finally, the Commission has before it a presumption of service in the public interest. Decision at 748. Peti- tioners attack this presumption as being contrary to sec- tion 309(c) of the Communications Act and such cases as United Church I, 359 F.2d at 1008, and Office of Com- munication of the United Church of Christ v. FCC, 425 F.2d 548, 545 (D.C. Cir. 1969) (United Church. II), which hold that a licensee must affirmatively demonstrate that renewal will serve the public interest. This attack is misplaced. Neither the statute nor the legislative his- 18a provides strong incentives for operation in the public interest.* Those incentives are generated largely by the tools which the Commission uses to discover and punish vio- lators. Investigation of citizen complaints is one im- portant tool. In addition, the long form audit and on- site inspections by the Field Operations Bureau and Broadcast Bureau are designed not only to provide the Commission with concrete information on the specifica licensees audited but also tw deter licensees from non- compliance with the substantive requirements. The Com- mission can also prevent potential violations by punishing those discovered with fines and license revocations. The severity of such sanctions, see, e.g., WADECO, Inc. v. FCC, 628 F.2d 122 (D.C. Cir. 1980), and the willingness of the FCC to impose them make more reliable a pre- sumption that a licensee will adhere to the substantive requirements of the Commission and the Act. Petitioners respond to this contention by arguing that only a small percentage of licensees are subject to the random audit and spot checks and that consequently the deterrent effect of such devices is minimal. All licensees will be affected by the knowledge some unknown number will be examined and, if appropriate, visited with severe sanctions. Moreover, the determination concerning de- grees of deterrence is precisely the type of judgment which is best left to the Commission. Nor is the fact that the FCC may not be able to identify all noncomply- ing licensees a reason to overturn the decision. No regu- latory scheme which depends in part on the good faith of the licensee will be utterly fool-proof; the previous system certainly was not. Both approaches ultimately rely on presumptions and on the good faith of the licensees. * The inference is also supported by the” Commission’s traditional limited reliance on licensee good faith. 19a The simplified renewal application also offers concrete benefits in the form of reduced paperwork and expense. While these factors are not, of course, grounds for ignor- ing a statutory mandate, they are an advantage the Commission is entitled to weigh in making its decision. The Federal Paperwork Reduction Act of 1980, Pub. L. No. 96-511, 94 Stat. 2812 (codified at 44 U.S.C. §§ 3501- 3520 (Supp. V 1981) ), was enacted “to minimize the fed- eral paperwork burden,” 44 U.S.C. § 3501(1) (Supp. V 1981). This is to be accomplished by eliminating regu- latory burdens “which are found to be unnecessary and thus wasteful... .” S. Rep. No. 930, 96th Cong., 2d Sess. 3, reprinted in 1980 U.S. Code Cong. & Ad. News 6241, 6248. Congress specifically applied this policy to the FCC’s domain when it extended the broadcast li- cense term to five years for television stations and seven years for radio. Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 1241, 95 Stat. 357, 736.% Thus, the reduction in regulatory burden which the FCC has effected is not just a result of FCC impulse, but rather stems directly from the Paperwork Reduction Act and congressional policy with respect to the FCC. There can be little doubt that this mandate provides further support for the FCC’s decision. We conclude that the new license renewal system is adequate to permit the Commission to make the deter- mination that a license renewal is in the public interest. ™* The Conference Report noted: {T]he extension of terms for broadcast licensees would help to reduce costs to broadcasting and the Commission costs, while at the same time allowing the Commission to do a better job reviewing broadcasters’ performance. H.R. Rep. No. 208, 97th Cong., lst Sess. 895 (Conference Report), reprinted in 1981 U.S. Code Cong. & Ad. News 1010, 1257. 20a Petitioners’ second major argument is that even if the FCC has the statutory discretion to adopt the simplified renewal application, the Commission has nevertheless failed to comply with reasoned decision-making require- ments of the Communications Act and the Administra- tive Procedure Act. The Commission’s decision, however, readily survives the “searching and careful” review to which we subject it. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Here, our review must include an additional special factor: the FCC’s adoption of the simplified renewal ap- plication represents a significant change in policy. The court must, therefore, be satisfied that the agency was aware that it was changing its views and has articulated permissible reasons for the change. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).* This is not a case where an agency altered course with- out acknowledging or recognizing the change. The first ph of the Notice states that the proceeding was being initiated to determine whether the FCC should “re- vamp” its renewal procedures. Notice at 1. “In emphasizing that we pay special attention to changes 998 (D.C. Cir. 1982). Of course, this scrutiny consists in | reasons for the change, and 2la Nor is this a case where the agency has failed to pro- vide a reasoned explanation for its change in policy. Here the Commission clearly set out its rationale; namely, that the same degree of compliance could be achieved with the simplified renewal application. While this find- ing is not in itself rigorously deduced, it is well estab- lished that greater deference is given administrative bod- ies when their decisions are based upon “judgmental or predictive” conclusions. FCC v. National Citizens Com- mittee for Broadcasting, 486 U.S. 775, 813-14 (1978). Accord FCC v. WNCN Listeners Guild, 450 U.S. at 595- 96. The FCC also clearly stated that adoption of the simplified renewal application would in turn “free up scarce resources for use in other areas.” Decision at 747. This finding was factually supported in the record by, for example, estimates of the funds that would be saved by adoption of the new form. E.g., Decision at 754. Petitioners specifically attack two aspects of the De- cision. Petitioners assert that the basis of the FCC’s decision was the conclusion that past experience indicated most licensees comply with the substantive regulations.* They then contend that this conclusion does not warrant altering the procedures and, if anything, supports re- taining the old system.” This argument, however, dis- has resulted in few applications designated for hearing for failure to comply with our rules and policies. Decision at 748. This statement was not the basis of the FCC’s decision; rather, it was merely an observation that the previous guidelines were to some degree excessive. The more important basis of the decision was that the new system would work equally well. * Petitioners state: The abandonment of efficacious procedures, on the ground, that they were efficacious, hardly constitutes reasoned ies 22a torts the Commission’s position. The Commission dis- carded the old system for the new not because the old system worked, but rather because it believed the new system would work just as well: We believe that we can discharge our obligations by adopting a simplified renewal application (SRA).... Decision at 741. In overlooking the Commission’s con- clusion that the new method could achieve equivalent com- pliance, petitioners reveal the true nature of their com- plaint; they believe the old system works better and wish to substitute their judgment for that of the Commission. When seen in that light, petitioners’ argument must fail.** As we have noted, and as petitioners concede, the Com- munications Act gives the FCC “substantial discretion to reconsider and review the appropriateness of [its] regulations including the continued need for particular information in connection with renewal applications.” Decision at 747; see National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d at 645. More- over, the FCC has worked with renewal applications for many years and has developed considerable expertise and experience.” See West Michigan Telecasters, Inc. v. FCC, decision-making. If anything, the Commission’s rationale merely confirms the continued need for the traditional renewal procedures... . Brief for Petitioners BCFM at 40. * Petitioners also assert that reasoned study. See NAACP v. FCC, 682 F.2d at 1001 (rejecting argument that FCC should have conducted independent study prior to changing its Top-Fifty Policy). In National Tour Brokers, 671 F.2d at 583, the court found that the ICC’s decision to simplify licensing procedures i Saag aes 3 Oi ee gee 23a 896 F.2d 688, 691 (D.C. Cir. 1968) (court “defer[s] to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or un- reasonable”) . Petitioners also argue that the FCC cannot dispense with the old system on the basis of a desire to relieve itself and/or licensees from regulatory burdens. Again, however, this argument is premised on petitioners’ belief that the new system will not serve the public interest. The FCC has reasonbly rejected that premise and we must reject the conclusion. The Commission may consider regulatory burden in choosing between two procedures, each of which serves the public interest. The FCC is, moreover, statutorily authorized to reduce the regulatory burden on licensees and we find this to be additional sup- port for the Commission’s action. Accordingly, the orders here under review are Affirmed. 24a WRIGHT, Circuit Judge, dissenting: The Federal Com- munications Commission (the Commission) has in recent years undertaken a substantial deregulation of broadcast- ing in this country. In two companions to this case, Office of Communication of United Church of Christ v. FCC, 707 F.2d 1418 (D.C. Cir. 1983), and Nat'l Black Media Coalition v. FCC, 706 F.2d 1224 (D.C. Cir. 1983), this court approved, with some reservations, the bulk of the Commission’s dergulatory effort. In the present case petitioners, Black Citizens for a Fair Media et al., have brought a challenge to the Commission’s recent deregula- tory endeavors in the area of broadcast license renewal. After notice and comment rulemaking, the Commission promulgated in 1981 a rule that dramatically pared down the license renewal procedures for broadcast licensees. In particular, the Commission eliminated its long-standing practice of requiring all renewal applicants to provide the Commission with substantial information about their pro- gramming during the prior license term. Petitioners’ challenge springs from this decision to eliminate indi- vidualized programming inquiries from the renewal proc- ess. They assert that this decision contravenes the sub- stantive requirements of the Communications Act, 47 U.S.C. § 151 et seq. (1976 & Supp. V 1981), and is not 4 : 25a resource, the remunerative potential of which has proven to be vast. In return, the broadcaster must use this pub- lic resource so as to serve the “public interest, conveni- ence, and necessity.” 47 U.S.C. §§ 303, 307, 309, 315. This public interest standard mandates programming that meets the needs of a broadcaster’s viewing or listening community. See Part III-A infra. The statute establishes the Commission as the overseer of this relationship be- tween the broadcaster and its viewing or listening public. The Commission exercises this oversight primarily through the renewal process. To fulfill its responsibility the Commission had traditionally required each renewal applicant to provide information sufficient to permit the Commission to determine whether the applicant had met its public interest programming obligations. Only by making such an individualized inquiry into the program- ming of every renewal applicant can the Commission abide by the statutory mandate that it “shall determine, in the case of each application filed with it * * * , whether the public interest * * * will be served” by renewal. 47 U.S.C. §309(a) (emphasis added). The Commission’s recent decision to forsake programming in- quiries amounts to an abdication of its statutory responsi- bilities, and this court should invalidate the Commission’s plan. I. BACKGROUND A. The Commission’s Traditional Approach to Re- newal of Broadcast Licenses Traditionally, programming inquiries have been central to the renewal process under the Communications Act. Sections 307 and 309 of the Act, 47 U.S.C. §§ 307, 309, direct the Commission to grant license renewals only to applicants who have provided service in the public in- terest. Until its recent turnabout, the Commission had always thought that this statutory directive mandated an inquiry into programming of every renewal applicant. 26a The Commission first set out this understanding in its “Blue Book” of 1946, REPORT ON PUBLIC SERVICE RE- SPONSIBILITY OF BROADCAST LICENSEES 11-12 (1946). The Blue Book states that “there can be no doubt that Con- gress intended: the Commission to consider overall pro- gram service in processing applications,” and that the Commission is “under an affirmative duty, in its public interest determinations, to give full consideration to pro- gram service.” Jd. Fourteen years later the Commission restated its commitment to the necessity of programming inquiries in its Report and Statement of Policy Re: En Bane Programming Inquiry, 44 FCC 2808 (1960) (here- inafter En Bane Programming Inquiry). This policy statement recognized that the licensee’s public interest obligations required it to “render the best practicable service to the community reached by [its] broadcasts,” id at 2311, and that this service encompassed a “diligent * © © effort * * * to discover and fulfill the tastes, needs and desires” of the broadcaster’s community. Jd. at 2312. The Commission also acknowledged its own duty to “pro- vide reasonable assurance te the public that the broad- cast service it receives is such as its direct and justifiable interest requires,” id. at 2313, and noted that the “par- ticular manner in which applicants are required to depict their proposed or past broadcast policies and services * * ° may * * * have significant bearing upon the Commission’s ability to discharge its statutory duties * * °*.” Id. at ming and interests. Jd. at 2316-2317. In 1965 the Commission revised its renewal application for radio stations to implement the findings of the 1960 En Bane Programming Inquiry. See Amendment of Seec- tion IV of Broadcast Application Forms 301, 308, 314, 27a and 315, 1 FCC2d 439 (1965) (hereinafter AM-FM Pro- gram Form). And in 1966 the Commission similarly amended its renewal application for television stations. See Amendment of Section IV of Broadcast Application Forms 301, 303, 314, and 315, § FCC2d 175 (1966). In both cases the new renewal application required licensees to provide detailed nonentertainment programming in- formation. The Commission again revised its renewal applications in 1973. See Formulation of Rules and Policies Relating to the Renewal of Broadcast Licenses, 48 FCC2d 1 (1978). This revision required television licensees to fill out an annual program form that focused on the licensee’s annual nonentertainment programming, and to maintain the form in a file open to public inspection. The 1973 revision also required more detailed information on the renewal applicant’s efforts to ascertain community needs, its programming responsive to these needs, its program- ming directed to those under twelve years of age, and its commercial practices. See Appendix B to brief of petitioners Black Citizens for a Fair Media et al. Two years later the Commission conducted yet another rulemaking to revise its renewal applications. See Re- vision of FCC Form 308, Application for Renewal of Broadcast Station License, Notice of Inquiry and Pro- posed Rulemaking, 52 FCC2d 184 (1976). This proceed- ing led one year later to a revised application that sig- nificantly reduced the number of particular areas into which the renewal application inquired. See Revision of FCC Form 308, Application for Renewal of Broadcast Station License, 59 FCC2d 750 (1976) (hereinafter FCC Form 303). The Commission stressed, however, that this simplification of the renewal form was intended only to permit the Commission to focus on program categories “particularly relevant to [its] public interest determina- tion,” id. at 769, and that no diminution in the Commis- sion’s statutory duty to make a public interest finding for each renewal applicant was implied.’ Thus, immediately prior to the rulemaking proceedings that resulted in the rule challenged in this case, the Com- mission’s renewal application forms continued to place substantial emphasis on licensee nonentertainment pro- gramming.” B. Procedural History of the Commission’s New Plan On July 11, 1980 the Commission issued a notice of proposed rulemaking to consider possible revision of the license renewal process. Notice, supra note 2, JA 47. In this proposed rulemaking the Commission, bringing its deregulatory credo to bear on the renewal process, sought to reduce the substantial filings that had been required of all renewal applicants. It stated its rationale for this policy : 1The Commission stated: In each case involving a renewal application the Commis- licensee’s performance and to predicate the required lic interest finding must continue to be elicited. * * * FCC Form 3038, 69 FCC2d at 752. Notice at 2, JA 48. In light of these beliefs, the Commission proposed a dramatic revision in the renewal process. The Commis- sion proposed in particular that the in-depth renewal ap- plications be scrapped and replaced with the following four-part scheme: (1) All licensees would be required to complete a simplified renewal application. This application would be postcard size and would ask four brief ques- tions concerning the applicant’s compliance with the alien ownership, equal employment opportunity, good character, and public file requirements of the Act. (2) Long-form audits, which would closely re- semble former application forms, would be sent to a random sample of five percent of all licensees. These forms would contain detailed programming inquiries. (3) On-site inspections would be conducted on ap- proximately 16 percent of licensees. Inspections would compliance quirements and with public file requirements. (4) Licensees would continue to maintain a public file that contained information regarding the licen- See Notice at 3-15, JA 49-61. 30a This scheme embodies a distinct shift away from the individualized review of programming practices that the Commission had for so long thought the Act required. Under the new plan* the Commission would rely on a combination of deterrence through the threat of audit or inspection and public vigilance, facilitated by information in the licensees’ public files, to ensure that licensees pro- grammed in the public interest. If the Commission were to receive a public complaint, or if the postcard applica- tion, long-form audit, or on-site inspection were to turn up evidence of programming inadequacy, the Commission would make an individualized inquiry into the licensee’s programming. Otherwise the Commission would presume licensee compliance with programming requirements. C. The Decision to Adopt the New Plan After receiving and considering comments from more than 100 parties, the Commission approved the postcard renewal plan in a form essentially identical to that origi- nally proposed. Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad. Reg. 2d (P & F) 740 (1981) (hereinafter Decision) , JA 6. The Commission did modify its original proposal in two ways. First, it exempted commercial radio licen- sees from the group that would be subject to the long- form audit requirement. Decision at 648-649, JA 14-15. This action was taken in coordination with the Commis- sion’s decision to effect a substantial deregulation of com- mercial radio. See Office of Communication of United Church of Christ v. FCC, supra, 707 F.2d 1418. As a result of this decision, approximately 8,100 of the 10,400 holders of broadcast licenses would be exempt from the long-form audit, and this audit would thus fall on only one percent of all broadcast licensees 2ach year. Brief 3 In this opinion the Commission’s new plan will be referred to as the “postcard renewal plan.” 3la for petitioners at 19. Second, the Commission reduced the percentage of licensees subject to the random on-site inspections from 16 percent to 10 percent annually. De- cision at 752, JA 18. Approving this overhaul of the renewal process, the Commission explicitly noted that the new plan “was never intended to change our current substantive requirements for the broadcast industry, and * * * does not alter the substance of licensee obligations to serve the public in- terest.” Id. at 748, JA 14. See id. at 741, JA 7. The Commission also expressed its belief that its “ability to make [the] public interest finding is preserved through the SRA [Simplified Renewal Application].” Jd. at 748, JA 14. After the Commission denied a petition to reconsider this decision, Revision of Application for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 87 FCC2d 1127 (1981),* petitioners Black Citizens for a Fair Media et al. brought their challenge to the Commission before this court. II. STANDARD OF REVIEW The Communications Act grants to the Commission broad authority to regulate broadcasting so as to serve the “public interest, convenience, and necessity.” 47 U.S.C. § 303. Providing little more than this general touchstone for guidance, Congress sought to ensure that the Commission was unfettered in its endeavors to keep astride “a field of enterprise, the dominant characteristic of which was the rapid pace of its unfolding.” Nat’l Broadcasting Co. v. United States, 319 U.S. 190, 219 (1948). Though the public interest standard is not a roving license to do good, and takes directive meaning from its statutory scheme, see Office of Communication of * Henry Geller, a petitioner in this action, brought the peti- tion for reconsideration before the Commission. 32a United Church of Christ v. FCC, supra, 707 F.2d at 1423- 1424, the Communications Act should nonetheless be read as delegating to the Commission substantial authority for elaborating the precise meaning of the public interest standard. When this court reviews Commission rules promulgated pursuant to such congressional delegations of power, we do not substitute our judgment for that of the Commis- sion as to whether the rules under review are the best method of serving the public interest. Rather, we review the Commission’s action to determine whether the Com- mission exercised reasoned decisionmaking and whether it exceeded its statutory authority. Herwig v. Ray, 455 U.S. 265, 275 (1982); Gray Panthers v. Schweiker, 453 U.S. 84, 44 (1981); Batterton v. Francis, 482 U.S. 416, 426 (1977). The parameters of reasoned decisionmaking are read- ily discernible in the case law. The mandate of the Ad- ministrative Procedure Act (APA) that a reviewing court set aside agency action found to be “arbitrary, capricious, or an abuse of discretion,” 5 U.S.C. § 706 (2) (A), requires the court to ensure that the agency’s decision “is rational, has support in the record, and is based on a consideration of relevant factors.” Telocator Network of America v. FCC, 691 F.2d 525, 587 (D.C. Cir. 1982). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) ; Office of Communica- tion of United Church of Christ v. FCC, supra, 707 F.2d at 1424-1426. APA’s requirement that agency action not be “in ex- cess of statutory * * * authority,” 5 U.S.C. § 706(2)(C), is more murky in its parameters. Essentially, the re- viewing court must ensure that the agency action at issue comports with congressional intent; agency action inconsistent with congressional intent exceeds the limits of an agency’s delegated authority. See Planned Parent- hood Federation of America v. Heckler, 712 F.2d 660, 33a 655-656 (D.C. Cir. 1988); Office of Communication of United Church of Christ v. FCC, supra, 707 F.2d at 1422-1424. That this principle is not altogether clear from the case law is largely the result of the distortive gravitational pulls of two opposing platitudes. Pulling in one direction is the maxim that a reviewing court should defer to an agency’s interpretation of its governing statute. See Udall v. Tallman, 380 U.S. 1, 16 (1965). Exerting a countervailing pull is the maxim that courts are always tle final authorities on issues of statutory construction. See FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965). Though both are in a sense correct, neither as formulated is sufficiently sensitive to the salient differ- ences among situations in which a reviewing court must evaluate an agency interpretation of its governing stat- ute. And though both have been at times applied to the process of deciding whether agency action has exceeded statutory authority, neither governs review under this test, as properly understood. In every case in which a court reviews an agency in- terpretation of its governing statute, the court must de- cide in the first instance whether the agency or the court The intent. of Congress governs this decision. Nat'l Wild- life Federation v. Gorsuch, 698 F.2d 156, 167 (D.C. Cir. 34a agency, and in this sense the court is the final authority on issues of statutory construction. But once the court has determined that Congress has made such a delegation, the court may not substitute its judgment for that of the agency as to whether the agency’s action expresses the “best” understanding of the statutory term.* This does not, however, exhaust the court’s interpretive responsibility. Even when a court has decided that Con- gress delegated to the agency the task of supplying the meaning of a statutory term, the court must still ensure that the meaning supplied does not contravene congres- sional intent. Implicit in every congressional delegation of power to interpret a statutory term is the limit that the agency interpretation be consistent with the congres- sional purposes expressed in the statutory scheme con- taining the term at issue. Section 10 of the APA mandates review to police this limit; the court must ensure that agency action is not “in excess of statutory * * * au- thority.” 5 U.S.C. § 706(2)(C). Since every agency rule or decision presumptively carries the implicit message that the agency views it as consistent with congressional intent, the court should not defer to the agency view on * See generally Monaghan, Marbury and the Administrative 35a. Instead the reviewing court must itself evaluate the stat- ute and its legislative history to determine whether ‘the agency action at issue comports with the intent of Con- gress. Reviewing courts “are not obliged to stand aside and rubber-stamp their affirmance of administrative de- cisions that they deem inconsistent with a statutory man- date or that frustrate the congressional policy underlying a statute. Such review is always properly within the ju- dicial province, and courts would abdicate their responsi- bility if they did not fully review such administrative decisions.” NLRB v. Brown, 380 U.S. 278, 291-292 (1965) (emphasis added). See Volkswagenwerk Aktiengelsell- echaft v. FMC, 390 U.S. 261, 272 (1968) (quoting NLRB v. Brown, supra, 380 U.S. at 291). Recent Supreme Court cases have affirmed this princi- ple in cases involving review of agency rules made pur- suant to explicit congressional delegations of power to elaborate the meaning of a statutory term. Applying the “in excess of statutory * * * authority” standard of Sec- tion 10 of the APA, the Court in every case measured the agency rule against the Court’s interpretation of congres- sional intent. Herwig v. Ray, supra, 455 U.S. at 275-276; Gray Panthers v. Schweiker, supra, 453 U.S. at 44, 45- 46; Batterton v. Francis, supra, 482 U.S. at 428 (Ad- ministrator “could not, for example, pass a regulation that would * * * defeat the purposes of the * * * pro- gram”). See also FCC v. WNCN Listeners Guild, 450 U.S. 582, 596 (1981) (“As we see it, the Commission’s Policy Statement is in harmony with” cases defining the purposes of the Communications Act.) ; Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94-95 (1973) (application of agency guideline found to be inconsistent with congres- sional intent); Morton v. Ruiz, 415 U.S. 199, 234-237 (1974) (agency rule placing geographical limit on eli- gibility of potential beneficiaries of statute must be con- sistent with congressional intent) ; American Ship Building Co. v. NLRB, 380 U.S. 300, 316-317 (1965) (no fair “ i” Ms SS Tee, Se eee 36a construction of statute permits agency interpretation of statutory term). Thus, review under the “in excess of statutory * * ° authority” standard requires the court neither to defer to the agency interpretation nor to exercise completely inde- pendent judgment as to the statutory term at issue. Rather, the court measures the agency’s interpretation of the term against the court’s interpretation of congres- sional intent. If the court finds the agéncy reading con- sistent with congressional intent, the court’s inquiry is over; the court does not determine whether the agency interpretation is the best path to the goals Congress set. If, however, the reviewing court finds that the agency interpretation contravenes a statutory mandate or frus- trates congressional purposes underlying a statute, the court is duty bound to invalidate the agency interpreta- tion. In the present case Congress has left to the Commission much of the authority for elaborating the meaning of the public interest standard. Pursuant to this delegated power, the Commission has promulgated the postcard renewal plan that petitioners challenge in this proceeding. On review this court must determine whether the postcard renewa!, plan is consistent with the statutory mandates am @aderlying congressional purposes of the Communi- cwtiona Act. If this court finds that the plan contravenes the intent of Congress, we must follow the command of Section 10 of the APA and invalidate the plan because it is “in excess of statutory * * * authority.”’ Ill. REVIEW OF THE MERITS In this case petitioners Black Citizens for a Fair Media et al. make the straightforward claim that the Commis- T Because I would hold that the postcard renewal plan 37a sion’s postcard renewal plan contravenes the intent of the Communications Act because the plan does not require the Commission to ensure that each renewal applicant has met the Act’s public interest programming requirements. This court must analyze the statutory mandates and un- derlying congressional purposes of the Communications Act to determine whether the Act places on the Commis- sion the affirmative duty of examining the programming of every renewal applicant. If the postcard renewal plan is found to frustrate congressional intent, it must fail. A. The Public Trust Concept A broadcasting license is a public trust. The licensee obtains “the free and exclusive use of a valuable part of the public domain,” and in return assumes a duty to serve the public interest by this use. See Office of Com- munication of United Church of Christ v. FCC, 359 F.2d 997, 1008 (D.C. Cir. 1966) (hereinafter United Church I). Congressman White, a sponsor of the original Radio Act that became the Communications Act in 1934, articu- lated this understanding more than half a century ago on the floor of the House of Representatives: “The right of the public to service is superior to the right of any indi- vidual * * *. If enacted into law, the broadcasting privi- lege will not be a right of selfishness. It will rest upon an assurance of public interest to be served.” 67 Cong. Rec. 5479 (1926) (remarks of Rep. White). Amending the Communications Act in 1959, Congress reaffirmed that the public trust concept is the animating principle of the Act. The Senate report accompanying the amendment stated: “Broadcast frequencies are limited and, therefore, they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license is mandated to operate in the public interest.” S. Rep. No. 562, 86th Cong., 1st Sess. 8 (1959). And the public trust concept has long guided courts interpreting the Act. See Red Lion Broadcasting Co. v. FCC, 396 U.S. 367, 375-377 38a (1969) (hereinafter Red Lion) ; Office of Communication of United Church of Christ v. FCC, 425 F.2d 548, 548 (D.C. Cir. 1969) (hereinafter United Church II) ; United Church I, supra, 359 F.2d at 1003. These courts have recognized that licensees are “temporary permittees— fiduciaries—of a great public resource * * *,” United Church II, supra, 425 F.2d at 548, whose public trustee status is “subject to termination for breach of duty.” United Church I, supra, 359 F.2d at 1003. The public interest standard imposes a programming obligation on licensees. Though the paucity of illumina- tive legislative history accompanying the origina] Com- munications Act did not make this requirement entirely clear, subsequent judicial, congressional, and agency in- terpretations have clarified the existence and attributes of the programming requirement. In the landmark Nat'l Broadcasting Co. v. United States, supra, 319 U.S. 190, Justice Frankfurter, writing for the Court, held that the regulatory scheme established in the Act necessarily im- plied a duty to inquire into licensee programming.’ Subse- * The opinion stated: [Wle are asked to regard the Commission as a kind of traffic officer, policing the wave lengths to prevent sta- tions from interfering with each other. But the Act does not restrict the Commission merely to supervision of the traffic. It puts upon the Commission the burden of deter- mining the composition of that traffic. * * * * * * “An important element of public interest convenience affecting the issue of a license is the of the licensee to render the best practicable il : cI HE Hl ihe Hie 39a quent Congresses have added their imprimatur to this reading of the Act. In the course of amending the Act’s equal time provision, 47 U.S.C. § 315, in 1959 to exempt candidate appearances on news broadcasts, Congress was careful to state that this new law did not relieve broad- casters of “the obligation imposed upon them under this Act to operate in the public interest and to afford reason- able opportunity for the discussion of conflicting views on issues of public importance.” Act of Sept. 14, 1959, Pub. L. No. 86-271, §1, 73 Stat. 557, amending 47 U.S.C. § 315(a). This language, as the Supreme Court noted in Red Lion, supra, reveals that the amending Congress read the public interest standard as obliging licensees to meet certain programming requirements. The Commission cially and technically qualified to operate a station? Since the very inception of federal regulation [of] radio, com- parative considerations as to the services to be rendered have governed the application of the standard of “public interest, convenience, or necessity.” * * * Nat'l Broadcasting Co. v. United States, 319 U.S. 190, 215- 217 (1948). Commentators have also recognized that the structure of the Act’s regulatory scheme, governed by the public trust concept, necessarily implies the power to examine licensee programming. See S. Brever & R. STEWART, ADMINISTRATIVE LAW AND REGULATORY PoLicy 874 (1979) (“Surely a Com- mission asked to award licenses in the public interest must have ‘good programming’ as some kind of objective; to ignore programming entirely would make a mockery of its mission.”). * Red Lion Broadcasting Co. v. FCC, 395 U.S. 867, 380 (1969) (“public interest” creates programming duty); see Banzhaf v. FCC, 405 F.2d 1082, 1095 n.49 (D.C. Cir. 1968) (“At the very least, this language appears to be an acknowl- edgment of and in the settled Commission and judicial construction that the public interest standard applies to content.”). Such subsequent dec- entitled to “great weight in statutory construction.” Red Lion, supra, 395 U.S. at 380; accord, FHA v. The Darlington, Inc., 3568 U.S. 84, 90 (1958). 40a itself has repeatedly articulated its understanding that a programming obligation inheres in the public interest standard.” And in the companion to this case, Office of Communication of United Church of Christ v. FCC, supra, 707 F.2d at 1426-1430, we reaffirmed that the Commission is correct in this understanding. Though its precise contours are not fully mapped, the programming aspect of the public interest obligation essentially requires the licensee to provide nonentertain- ment programming that responds to the needs of the licensee’s broadcast community. Jd.“ The Communica- tions Act directs the Commission to police licensees to ” See, e.g., En Bane Programming Inquiry, 44 FCC 23038 (1960); Television Program Form, 5 FCC2d 175 (1966); Renewal of Broadcast Licenses, 44 FCC2d 405 (1978); FCC Form 303 Report and Order, 59 FCC2d 750 (1976). See also FCC policy statements discussed in Office of Communication of United Church of Christ v. FCC, 107 F.2d 1413, 1429 n.50 (D.C. Cir. 1983). Congress has never overturned, or even Zemel v. Rusk, 381 US. 1, 11-12 (1965). 11 Broadcasters must also meet programming obligations 4la ensure that they meet their public interest obligations. See 47 U.S.C. §§ 3038, 307, 309, 315. Reviewing a licen- see’s renewal application, the Commission must therefore determine whether the licensee has fulfilled these obliga- tions to program in the public interest. The licensee in a renewal proceeding must “literally run on his record.” United Church I, swpra, 359 F.2d at 1007. B. The Postcard Renewal Plan The Commission acknowledges that “({a] broadcaster seeking renewal must run on his record, and the focus of that record is whether his programming has served the public interest.” Brief for respondents at 14 (emphasis added). Yet the Commission’s postcard renewal plan eliminates from the standard renewal application form all questions relating to programming. The tension be- tween the Commission’s words and its deeds is obvious; while admitting that past programming is central to the renewal decision, the Commission proposes a scheme that makes no individualized inquiry into the programming of renewal applicants. The Commission seeks to resolve this tension with an argument of the “have your cake and eat it too” variety. What the Commission. claims is that the Act imposes on it only a duty to find that each ap- plicant operates in the public interest—not specifically to inquire into each applicant’s programming—and that the system of random audits and spot checks, supple- mented by complaints from the public, will deter most potential violators of the programming obligation, flag those not deterred, and thereby ensure that licensees pro- gram in the public interest while eliminating unneeded paperwork. Given this alternative way of ensuring that programming requirements are met, “(t]he questions contained on the SRA [Simplified Renewal Application] would provide the Commission with adequate informa- tion to make its public interest finding consistent with the Communications Act.” Decision at 748, JA 9. “) 42a The rationale for this dramatic shift in the Commis- sion’s approach to enforcement is not without some al- lure. The Commission asserts that under the prior re- newal system, which inquired deeply into licensee pro- gramming, almost all renewal applicants were found to have met the programming requirements. Moreover, com- plaints from the broadcaster’s community are currently the primary means by which the Commission learns of broadcaster failure to meet programming requirements. Based on these facts, the Commission determined that a combination of deterrence through the threat of audit or inspection and reliance on public complaints would suf- fice to ensure that licensees programmed in the public interest. Thus, although a licensee would still run on its record at renewal time, the Commission would presume, absent public complaint, that the audit and inspection threat had exerted a deterrent force sufficient to have kept the license faithful to its programming obligations as a public trustee. C. The Statutory Mandate and Underlying Congres- sional Purposes To ascertain whether the Commission has exceeded its statutory authority, the postcard renewal plan must be 43a Commission shall determine, in the case of each applica- tion filed with it * * *, whether the public interest * * * will be served by the granting of such application.” I[d. § 309(a) (emphasis added). These words impose on the Commission a mandatory duty to make sure that each renewal applicant has operated in the public interest. FCC v. WNCN Listeners Guild, supra, 450 U.S. at 600 (“the Commission does not merely assume but affirma- tively determines that the requested renewal * * * will serve the public interest”)."* When these sections are read together with the programming requirement that the public interest standard imposes on each licensee, it becomes clear that the statutory scheme requires the Commission to find that each renewal applicant is pro- viding programming that satisfies the public interest standard. Reviewing courts have consistently read the statute in exactly this way. In Alianza Federal de Mercedes v. FCC, 539 F.2d 732, 735 (D.C. Cir. 1976), this court noted that “it has long been basic to the understanding past rs oh found in United Church I, supra, that “in a past performance is [the Commis- aa | best criterion.” 359 F.2d at 1007. See also id. at dda In those cases the court was doing no more than follow- ing a long-standing Commission interpretation. Almost a quarter-century ago, in En Banc Programming Inquiry, 44 FCC 2303, 2310 (1960), the Commission set out this interpretation of the Act: [Faithful discharge of its statutory responsibili- ties is absolutely necessary in connection with the implacable requirement that the Commission approve no such application for licenses unless it finds that “public interest, convenience, and necessity would be served.” While the public interest standard does not provide a blueprint of all of the situations to which it may apply, it does contain a sufficiently precise definition of authority so as to enable the Commis- sion to properly deal with the many and varied oc- casions which may give rise to its application. A significant element of the public interest is the broadcaster’s service to the community. * * * (Emphasis added.) The policy statement bears repeat- ing: the statute requires that “no * * * application” be approved unless the Commission finds that the public in- terest would be served, a “significant element” of which is the “broadcaster’s service to the community.” The identical interpretation of the statute permeates later Commission rules and policy statement. See AM & FM 4Sa In each case involving a renewal application the Commission is required to review the licensee’s over- all performance during the preceding license term and to make an affirmative finding that grant of the subject application would serve the public interest, convenience, and necessity. * * * * Sufficient information upon which to assess the licensee’s performance and to predicate the re- eo public interest finding must continue to be Id. at 752 (emphasis added). These quotations from Commission rules and policy statements leave little doubt that, prior to its recent about-face, the Commission con- sistently read the Act as mandating an inquiry into the programming of each and every renewal applicant.” That the Commission for so long held this view of the Act is not surprising. This reading reflects the centrality of the “public trust” concept that animates the regula- tory scheme. Each licensee receives a slice of the public domain extraordinarily lucrative in its potential, and must in return provide programming that serves the needs of its broadcast community. The Act directs the Commission to ensure that each licensee meets its obliga- tions as a public trustee. The Act, furthermore, makes explicit the requirement that an affirmative, individualized public interest finding be made for each licensee. Since 18 Additional evidence that the Commission read the statute this way can be found in statements contained in FCC license renewal applications. Applicat.on an from 1974, 1976, and 1980 contain the following Salles Sas Oe see ee a en Se serve the public interest, convenience and ew Pro- 46a the Commission carries out this statutory duty primarily through the renewal process, the process must be struc- tured to permit the Commission to ensure that each licensee lives up to its public trust obligations. The Com- mission can only do so by evaluating the programming of each licensee. To further the congressional purposes im- plicit in the public trust concept, the affirmative, indi- vidualized public. interest finding that Sections 307 and 309 of the Act mandate must be read as requiring the Commission to evaluate the programming of each renewal applicant.” 4 Long congressional acquiescence in this consistent agency and judicial interpretation provides persuasive evidence that this interpretation is the one intended by Congress. Haig v. Agee, supra note 10, 453 U.S. at 300; Red Lion, supra note 9, 395 U.S. at 381; Zemel v. Rusk, supra note 10, 381 U.S. at 11. Haig v. Agee stated that “congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative policy.” 453 U.S. at 300. More recently, however, the Supreme Court stressed, in Bob Jones University v. United States, —— U.S. ——, ——, 51 U.S.LW. perpen vee tan meth gir er ft familiarity with that interpretation. In the present case, evidence exists of congressiona! famili- 47a What is surprising, rather, is that the Commission would now seek to undermine this understanding of the Act—and that the majority of this panel would go along. The Commission attempts to achieve its goal of rewriting the statute by a process of recharacterizing its earlier view of its statutory responsibilities. The Commission now claims that when it stated previously that program- ming inquiries were essential to the renewal process, it was not interpreting the statute per se, but merely exer- cising its broad discretion to propound whatever proce- dures it thought appropriate under the public interest standard. Now in an equally permissible exercise of dis- cretion, the Commission claims, it is discarding the old programming inquiries as cumbersome and replacing them with the postcard renewal plan. To support this shift in approach the Commission claims that the statute does not mandate a renewal form that inquires into the programming of each applicant and that the random audits and inspections, supplemented by public complaints, will permit the Commission to meet its duty of ensuring amending process did Congress express disapproval of the long-standing Commission interpretation of the Act as requir- ing individualized programming inquiries. “Congress is pre- sumed to be aware of an administrative or judicial interpreta- tion of a statute and to adopt that interpretation when it re-enacts a statute without change.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 382 n.66 (1982). intended no change in the Commission’s “duty to consider, in the case of a station which has been in operation and is apply- 48a programming in the public interest. Neither prong of the Commission’s rationale withstands analysis. 1. The statute requires a programming inquiry. Both the Commission and the majority opinion here assert that the Communications Act does not require the Commission’s renewal application to inquire into each applicant’s programming. Casting the issue in this way, they avoid the real question that must be answered in this case: whether the Commission can, consistent with the Communications Act, make no inquiry into the pro- gramming of 99 percent of its renewal applicants. With- out a doubt, the precise content of the renewal applica- tion form is left largely to the discretion of the Commis- sion. But it does not follow from this proposition that the Commission need not review the programming of each renewal applicant. The Commission’s plan is only valid if the Act does not mandate such individualized inquiry. Thus, even if the Commission can show that the statutory words do not explicitly require a renewal application with programming questions, the Commission has not thereby proven that the statutory scheme does not re- quire an inquiry into the programming of each renewal applicant. The reasoning of this court’s majority opinion is directed only toward proving the former, and therefore does not address itself to the critical issue in this case. Nonetheless, since the Commission’s plan does not pro- vide for an examination of the programming of each re- newal applicant, it must be assumed tnat the Commission and the majority here have implicitly decided that the Act does not mandate such individualized inquiry. It has already been demonstrated that this view flatly contra- dicts the position that the Commission has held and ex- pounded for at least the past 40 years. To the extent that this court’s analysis can be viewed as implicitly addressed to this underlying issue of whether the Act mandates an 7 “ htt a6 ssf 49a inquiry into each applicant’s programming, that analysis also falls of its own weight. The majority correctly notes that nothing on the face of the Act explicitly requires that programming inquiries be included on all applications for renewal. Majority Opin- ion (Maj. Op.) at 9. Section 308(b), a non-exhaustive list of items into which the Commission may inquire, is the centerpiece of this argument. The section does not include programming inquiries on its list, and does leave the Commission with discretion as to what information credited “plain meaning rule” in its worst aspect. See United States v. American Trucking Ase’ns, 310 U.S. 534 (1940). Section 308 must take its meaning from the regulatory scheme of which it forms a part, and from the Commission to inquire or not as it saw fit, but to 50a The majority draws similarly faulty lessons from its thin reading of subsequent congressional and agency in- terpretations of the Act. In the 1952 amendments to the Act, on which the majority places significant weight, Congress did seek to “reduce the regulatory burden,” Maj. Op. at 10, but not in the way that the majority claims. Prior to the amendments the Act required that renewal applications “be limited to and governed by the same considerations and practice which affects the grant- ing of original applications.” The amendment substituted for this yardstick the broader “public interest” standard that is now in Section 307. This revision eased the regu- latory burden by freeing the Commission from making inquir [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_IA40385011_1278%3A1. Public record. Not legal advice.