Document ID: A:\NAB.TXT NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Citizens Committee for Broadcasting, et al., Western Union Telegraph Company, Forward Communications Corporation, et al., Graphic Scanning Corporation, United States Satellite Broadcasting Company, Inc., Direct Broadcast Satellite Corporation, Satellite Television Corporation, Satellite Syndicated Systems, Inc., Aerospace and Flight Test Coordinating Council, Manufacturers Radio Frequency Advisory Committee, CBS, Inc., National Black Media Coalition, Association of Maximum Service Telecasters, Inc., California Public Safety Radio Association, Inc., RCA American Communications, Inc., Intervenors, NATIONAL ASSOCIATION OF BROADCASTERS, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Appellees, Satellite Television Corporation, National Citizens Committee for Broadcasting, et al., Satellite Syndicated Systems, Inc., Forward Communications Corporation, U.S. Satellite Broadcasting Co., et al., Televisa, S.A., National Black Media Coalition, CBS, Inc., Intervenors, COUNTY OF LOS ANGELES, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Satellite Television Corporation, Intervenor Nos. 82-1926, 82-2233, 83-1743 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 740 F.2d 1190; 56 Rad. Reg. 2d (P & F) 1105; 239 U.S. App. D.C. 87 February 23, 1984, Argued July 24, 1984 PRIOR HISTORY: Petitions for Review of an Order of the Federal Communications Commission. Appeal from an COUNSEL: Eugene F. Mullin, Washington, District of Columbia, Erwin G. Krasnow, Valerie G. and 82-2233. Joseph P. Markoski, Washington, District of Columbia, Philip L. O'Neill, Washington, Di Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, District of Columbia, Margaret G. Halpern and Marjorie S. Reed, for Respondents/Appellees in Nos. 82-1926, 82-22 Lawrence W. Secrest, III, Washington, District of Columbia, John S. Hannon, Jr., Keith tricia M. Reilly, for Satellite Television Corporation, Intervenor in Nos. 82-1926, 82-223 Wilhelmina Reuben Cooke, Washington, District of Columbia, for National Citizens Commit Marvin Rosenberg, James G. Ennis and Thomas Dougherty, Jr., Washington, District of Col Jonathan D. Blake and Gregory M. Schmidt, Washington, District of Columbia, for Associa James A. McKenna, Jr., Thomas N. Frohock and Dennis P. Corbett, Washington, District of Norman P. Leventhal and Barbara K. Kline, Washington, District of Columbia, for Televis John D. Lane, Martin J. Gaynes and Ramsey L. Woodworth, Washington, District of Columbi George Robert Johnson, Jr., for National Black Media Coalition, Arlington, Virginia, In Joseph M. Kittner, Lawrence J. Movshin and Randolph J. May, Washington, District of Col Ronald D. Coleman and Lisa B. Margolis, Washington, District of Columbia, for Direct Br Allan C. Hubbard, Washington, District of Columbia, for Western Union Telegraph Company George Vradenburg, III, Paul B. Jones, New York, New York, and Joseph DeFranco, Washing Robert F. Corazzini and Peter H. Feinberg, Washington, District of Columbia, for Satell Henry A. Solomon and Joel Rothstein Wolfson, Washington, District of Columbia, for Grap Jay E. Ricks, David J. Saylor, Peter A. Rohrbach, Washington, District of Columbia, and JUDGES: Tamm, Mikva and Davis *, Circuit Judges. Opinion for the Court filed by Circuit J * Of the United States Court of Appeals for the Federal Circuit sitting by designation OPINIONBY: MIKVA OPINION: [*1195] MIKVA, Circuit Judge: Of the technological innovations currently revolutionizing the communications field, th ered, geostationary satellites which then beam television signals directly to individual h lly limit terrestrial broadcasters to narrow broadcast areas; a single DBS signal will eve n technology: high- quality service to individuals in rural or remote areas where conventi specialized tastes through the ability to aggregate small, widely dispersed audiences; th ing, such as medical datA and educational information. The regulatory approach to DBS taken by the Federal Communications Commission (the FCC fore the service is born. Two proceedings are before us today that embody that approach: perational, and the approval of an actual application to construct this country's first mu logies that offer substantial public benefits, and we therefore uphold the major portion o eal to promote this new technology, the FCC gave short shrift to certain of its statutory mmission must hew in its continuing oversight of this nascent technology. BACKGROUND In the early 1960s, the development of satellites that could transmit signals over [* ogy, Congress created the Communications Satellite Corporation (COMSAT), a privately run, S.C. @@ 701-44. Because early communications satellites emitted relatively weak signals th ge number of individual homes. To be practical, broadcasting directly to viewers' residen that satellite and receiver technology had advanced to the point that a commercial DBS sy Even before this announcement, the development of DBS had received considerable regulat onal supervision both because the signals sent to and from a DBS satellite will spill acro he early regulatory attention focused on what part of the spectrum to assign for transmiss ency Allocations -- Satellite Services, 28 Rad.Reg.2d (P & F) 33 (1973). In the course of tion of DBS to the 12 GHz band in order to accommodate future U.S. DBS requirements. Worl assignment of specific DBS orbital locations and frequencies among Western Hemisphere cou Soon after WARC-79 concluded, the Commission began to consider how to protect and advan e. 45 Fed.Reg. 72719 (1980) (1980 Notice). The 1980 Notice noted the rapid advances being on whether it should adopt interim DBS regulations that would permit both the constructio comments on the feasibility of different sharing arrangements between DBS and existing te nvolved and lead time required if terrestrial users had to move to frequency bands other t During the course of proceedings under the 1980 Notice, Satellite Television Corporatio the FCC to consider the application in a separate and expedited adjudicatory proceeding, r instead placed the application in the DBS docket so that the question of authorizing [* nt on DBS and on the STC application. In June 1981, after six months of reviewing comments filed during the original and exte ssion formally proposed to establish interim DBS regulations prior to RARC-83 and explaine on domestic DBS. Nonetheless, according to the Commission, interim DBS rules were warran rim regulations were designed to assure "maximum flexibility" -- and to impose minimum reg On July 14, 1982, the Commission in fact adopted interim DBS regulations (DBS Order). 9 he technology and would strengthen this country's international position at RARC-83 by per requencies. Id. at 684. Subsequently, the Commission, on October 13, 1982, granted STC's Although STC's proposal called for service eventually covering the entire continental Unit ee channels of subscription television service over the eastern portion of the United Stat equest.) The grant was also conditioned upon the outcome of RARC-83 and included neither l In this action, petitioners the National Association of Broadcasters (NAB) and the Coun sides of the important issues at the forefront of modern communications policy raised by ANALYSIS I. The FCC's Power to Approve Non-Local Broadcast Service DBS technology is inherently unsuitable for the provision of traditional local broadcas spot beam capable of covering only a traditional size local community. STC Application Volume 1, at 55 n.100; JA 693 n.100. Moreover, many of t As a result, DBS, as authorized by the FCC, will provide regional or national service. T Petitioner NAB argues that the FCC does not have the power to approve a technology that ommunications Act of 1934, as amended, 47 U.S.C. @ 307(b) (the Act), which provides: the Commission shall make such distribution of licenses . . . among the several States and 47 U.S.C. @ 307(b) (emphasis added). NAB reads this provision to require that broadcast l which STC's authorization, and DBS in general, is "fundamentally irreconcilable." We do not think it necessary to ascribe to the framers of the Act an intent so shortsig ces. Cf. United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 278, 49 S. Ct. 133 distribution of radio service . . . so as to make available, as far as possible, to all t is thus the distribution of service, rather than of licenses or of stations; the constitu lic interest." 47 U.S.C. @ 303(g). Given this obligation to facilitate expansion of this e evolution of broadcasting," FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S. ng substantial benefits on all Americans. See Wold Communications, Inc. v. FCC, 237 U.S. 'to avoid the necessity of repetitive legislation, ' by arming the Commission 'with suffic ld that the Act does not bestow a vested right on any particular licensee to retention of icular system of broadcasting: existing systems, like existing licensees, have no entitlem In so holding we do not denigrate the importance of local programming to a national bro ). We need not define the outer limits of the Commission's authority to make this country' ission explicitly found that DBS will merely supplement the existing local broadcast syste the elimination of local programming to hold that not every communications service approv It is true that the Commission historically has followed a policy of "localism" as a so industry may come to regard an agency's policies as immutable elements in the background ined through novel means that require the alteration or abandonment of past Commission pol 57 (9th Cir.), cert. denied, 423 U.S. 836, 96 S. Ct. 62, 46 L. Ed. 2d 54 (1975) ("Regulato r that may further the public interest in the future."). Indeed, the Commission has long T REGULATION 20, (1973); D. DELUC, CABLE TELEVISION AND THE FCC 28 (1973); when it instead ted States, 319 U.S. 190, 217, 63 S. Ct. 997, 1010, 87 L. Ed. 1344 (1943), the Commission congressional mandate to the contrary; here the Commission instead has sought aggressively We therefore find little need to tarry long on the argument of the local broadcasters t ding of the Commission not truly disputed by any of the parties, the Commission acted well II. Applicability to DBS of Broadcast Restrictions The most innovative of the steps taken by the FCC with respect to DBS was the Commissio nally imposed on broadcasters. Central to this approach was the Commission's refusal to e These statutory restrictions imposed upon broadcasters are among the most important ele d that government regulation of the airways was needed to bring order to the chaotic and b ee, 412 U.S. 94, 103-14, 93 S. Ct. 2080, 2086-92, 36 L. Ed. 2d 772 (1973). Some congressme nondiscriminatory basis. Such a pervasive access right was ultimately rejected, however, was the view that broadcasting should remain under private control in general but that ce dio Act imposed a specific set of restraints upon broadcasters that common carriers do not Among the statutory restraints that broadcasters currently face are section 312(a)(7), ical candidate is allowed to use a station, other qualified candidates must be given an eq estraints apply to DBS is of great moment. The DBS Order established the following classificatory scheme for purposes of applying over the content of the transmissions" will be treated as broadcasters. A DBS satellite nt to tariff under the provisions of Title II of the Act; a satellite owner who chooses th ommon carrier and who use the leased channels to distribute programming via satellite to i ntrol the content of the programming transmitted by a DBS common carrier. The FCC offered three rationales for the exemption of customer-programmers from Title I rriers; the possibility that a "broadcaster" might hook into a common carrier to allow the ystem in which an entity that wished to send signals using facilities and frequencies lice rom a common carrier to be licensed and regulated as a broadcaster. Second, imposition on ations already imposed on the carrier itself. Third, in its regulations of the common car omers, many of whom provide subscription programming services to individual residences, to ded that it was free to determine where the public interest lay with regard to the regulat he Commission with experimental information that would better inform its eventual public i We recognize the Commission's authority to approve services on an experimental basis in 2d 786 (D.C. Cir. 1975). Moreover, as other parts of this opinion will confirm, that discr not [*1201] boundless: the Commission has no authority to experiment with its statutory of DBS common carriers. We reach this conclusion by beginning not, as the Commission did, with the question whe to sort out the complex and often elusive responsibilities that Congress has delegated to Section 3(o) of the Communications Act defines "broadcasting" as "the dissemination of test for whether a particular activity constitutes broadcasting is whether there is "an i F.2d 543, 548 (D.C. Cir. 1958), cert. denied, 361 U.S. 813, 80 S. Ct. 50, 4 L. Ed. 2d 60 ( l Music. Nor do we believe the Commission could have done so successfully. When DBS systems transmit signals directly to homes with the intent that those signals y be received by the public. That remains true even if a common carrier satellite leases broadcasting. Despite the argument of some intervenors and the suggestion of the governm of whether a DBS system is advertiser or subscriber funded. The FCC at the time of the DB 0), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 29 L. Ed. 2d 701 (1971), from its conclusi The primary touchstone of a broadcast service is the intent of the broadcaster to provide rom a point-to-point message service to specified individuals. . . . broadcasting remains Further Notice in the Matter of Subscription Television Service, 3 F.C.C.2d 1, 9-10 (1966) Owners v. FCC, 136 U.S. App. D.C. 352, 420 F.2d 194 (D.C. Cir. 1969) (affirming FCC's auth ite Broadcasting Systems, FCC No. 83-403, released Nov. 3, 1983, a view not yet passed upo d not distinguish free-TV from pay-TV for purposes of defining "broadcasting." 90 F.C.C.2d *1202] rather than advertiser funded. See generally Committee for Community Access v. F The irrationality of the Commission's view of the statute, which makes ownership the to ster; if that owner sends its programs via leased channels on another satellite, the very the statutory definition allows the Commission to elevate form over function in this way n outright. When confronted with a problem unforeseeable by the enacting Congress, it becom ot lead to absurd or impracticable consequences, the words employed are to be taken as the he Commission's strained statutory construction that produces "absurd or impracticable" co Fidelity to the statute's plain language also best comports with the legislative histor was that one voice not dominate broadcast stations: There is no agency so fraught with possibilities for service of good or evil to the Americ ly developed . . . it will only be a few years before these broadcasting stations, if oper ica. They can mold and crystallize sentiment as no agency in the past has been able to do largely at the mercy of those who operate these stations. 67 Cong.Rec. 5557, 5558 (1926) (statement of Rep. Johnson) (emphasis added). How much more to every home in the United States, has a potential impact on Americans far in excess of t DBS owner to retain control over the programming on several channels, an aspect of the DB entire United States. In rural areas, the number of DBS channels may dwarf the number of t Very real practical consequences could therefore follow from the FCC's exemption of com deral candidate who wanted access to a DBS system that was operated as a common carrier co ould instead have to rely on his or her purchasing power, as well as on the whim of the ch ld purchase enough time on a broadcast station operated as a common carrier to dominate Am olumbia Broadcasting System, Inc., v. Democratic National Committee, 412 U.S. 94, 130, 93 We therefore reject the central rationale upon which the Commission relied to exempt cu S does not give the Commission a blank check to regulate DBS in any way it deems fit. We e often require that legislation be drafted by reference to general categories rather than 4). As we said in that case, under such circumstances courts and agencies must "seek out t uch purposive interpretation can we accord fidelity to Congress' objectives." Id. at 770. t guidance of the way in which Congress would have wanted DBS to be regulated that the Com The Commission's other rationales for its treatment of customer-programmers provide eve erely would serve to duplicate the more pervasive" common carrier obligations of Title II, rrogate for Title III requirements such as reasonable access or equal opportunity. A comm er is the obligation to accept applicants on a non-content oriented basis. Nor does the C on that transmits via microwaves various subscriber-supplied information to numerous fixed nstitutional subscribers with specialized communications in accordance with their specific y relied on the fact that MDS subscribers will not be treated as broadcasters. This relia sender of the information or the transmitter of it; the Decision simply assumes that the t irst, at the time of the DBS Order, the information that MDS would transmit was thought to tribution Service, 34 F.C.C.2d 719 (1972) (The service was intended "to provide for relay medical conventions."). Second, the Commission itself has concluded that MDS transmission 00; the Midwest Corp. decision thus views MDS, at least as it was conceived at the time of cted at individual homes, is radio-communication intended to be received by the general pu e used for subscription television, see 47 C.F.R. @ 21.903(b) (1982); Instructional Televi st regulation. The Commission's other articulated rationales for its treatment of DBS pro A possible fourth rationale for the Commission's decision, one not articulated by the C erson shall use or operate any apparatus for the transmission of" any radio signal without ither that rationale nor Section 301 is explicitly mentioned anywhere in the Commission's States, 371 U.S. 156, 168-69, 83 S. Ct. 239, 245-46, 9 L. Ed. 2d 207 (1962). But even assu receive access to DBS satellite channels sufficiently "use" those channels as to fall with A final reason for exempting DBS customer-programmers from broadcast regulation, a reas o be rejected. These intervenors argue that the Commission never regulates programmers bu cast stations, subscription television programmers, who perform similar functions on stati the Commission previously has applied broadcast restraints to programmers and has been up ts of Section 312(a)(7) to major broadcast networks). The reason the FCC does not ordinar the broadcast licensees. This approach is consistent with the Act's philosophy, for wher d cable, the Act's objectives are met. But when both the customer-programmer and the comm egated. To avoid this result, we vacate that part of the DBS Order that exempts customer-progra ion, the Commission has available a variety of means for regulating DBS consistent with th as a broadcaster. See generally Comment, Direct Broadcast Satellites: Ownership and Access ulate the customer-programmers of DBS common carriers, we do not suggest that it is upon s y make more sense to make the satellite owner responsible for compliance with a broadcaste approach. Moreover, while the FCC cannot experiment with its statutory obligations, it ha R. @ 73.1920 (1983) (personal attack rule); if the FCC can offer persuasive reasons for ex We also do not suggest that all uses of DBS constitute broadcasting; activity that woul objectives of the Act, need not be regulated as broadcasting. See Functional Music, supr ional Telecommunications Association, Inc., 49 F.C.C.2d 948 (1974) (use of educational FM Although we vacate one portion of the DBS Order, the Commission's error with respect to proposes to produce direct-to-home service and to retain control over the content of the . at 710 n. 82, the DBS Order is thus insulated from our criticism of the FCC's failure to on of the DBS Order is relevant -- we leave to the Commission the decision whether a gener question. [*1206] That we are compelled to vacate a portion of the Interim DBS rules as promulg comply with all restrictions applicable to broadcasters. While some of the parties assert to this court, dated April 4, 1984, as committing STC to comply with Title III on each ch rant; STC will operate as a broadcaster. The validity of the STC Decision is therefore no III. The FCC's Refusal to Apply its Ownership Restrictions to DBS In addition to refusing to impose statutory broadcast restrictions on customer-programm aditionally, the FCC has considered diversification of media ownership to be an important service viewpoints, an aim embodied by the First Amendment, and by preventing undue concen 4, 56 L. Ed. 2d 697 (1978). To promote diversification, the Commission has long barred tra (1983) (multiple-channel rules). Similarly, Commission rules prohibit any single entity f The Interim DBS rules temporarily suspend for DBS both the multiple channel and the cro ing the nascency of DBS would unduly hinder development of DBS systems; second, that the r andonment of the rules posed little danger to the values those rules served. The refusal to apply the cross-ownership rules to DBS is not at issue in this case. Ho place for terrestrial licensees. At least at this early stage in the development of DBS, we reject that argument: DBS an entical regulatory treatment of the two is required. Unlike conventional television syste be $600 million. STC Application, Volume 1, pp. 66-70 (JA 674). Weighing in against these struction permit and initiation of service; (ii) reliance on unproven and developing techn receiving equipment over vast geographic [*1207] areas. STC Decision, 91 F.C.C.2d at These differences led several potential applicants to comment that no "responsible busi ch multiple-channel control allows counter programming, in which a satellite owner can off ers than would be possible were only a single channel available. Based on the comments of impose ownership restrictions comparable to those existing in other areas. However, the tervention. In other areas, the FCC has adopted a similar flexible approach toward new technology t origination that a cable owner could operate; such restrictions were thought to constrain ing services, the Commission adopted a relaxed cross-ownership policy to foster their deve ). While these approaches were not judicially reviewed, they highlight the fact that the C In this case, we conclude that the Commission acted within its discretion in suspending he Commission's informed judgment as to what the public interest requires. Substantial ev BS may result in new service of substantial benefit to the public and that competition fro than the mechanical application of those restrictions to this new setting. In light of t traditional ownership restrictions to DBS. The Commission offered a second and alternative rationale for refusing to apply the mul ia ownership. NAB is distressed by this rationale and argues that the same factors that m B's argument may be sound as a matter of policy, but as a matter of law it rings hollow. novel development; instead, "reform may take place one step at a time, addressing itself t 5). The [*1208] communications field is in the midst of a profound revolution, in whic advancing technology. Computer and Communications Industry Association v. FCC, 224 U.S. Ap denied, 461 U.S. 938, 103 S. Ct. 2109, 77 L. Ed. 2d 313 (1983). But in regulating a new te d by those forces; the Commission is not constrained, as NAB would have it, to act in one der whether repeal of existing rules, like the refusal to extend them which we approve tod tantially the multiple ownership rules as they apply to conventional broadcast stations). s does not per se invalidate a decision that precludes applicability of such rules to DBS. The fact that we reject NAB's argument, however, does not mean that we endorse the Comm estrictions unnecessary. We need not reach that issue today and express no opinion on it, rarily, ownership restrictions on DBS. In approving suspension of the ownership restrictions, we add a final caveat. Diversifi approval nor the FCC's action intimates that diversification is no longer salient to the s upon which the interim rules are based. Where those predicates do not exist, or when th e courts in the second. For example, the absence of ownership restrictions on DBS may be to be alert to such possibilities, see, e.g., DBS Order, 90 F.C.C.2d at 713, and, as we p dged itself. Wold Communications, supra, at 1476. Similarly, should experience prove that n, ownership restrictions may become warranted. Cf. Telocator Network of America v. FCC, "ongoing obligation to monitor its regulatory programs and make adjustments in light of a S channels on one satellite controlled by a single firm (which may lead to some [*1209] DBS stations by those with substantial other media interests. See generally Note, Direct d so that STC itself, whose multi-channel system was approved as an experiment, are not le multiple channel authority is a contingent right of which an applicant may be defeased sho Lastly, NAB argues that, even if the ownership restrictions can be relaxed as a general studies indicated that STC could achieve sufficient economic returns with two channels; it That argument is refuted by the fact that STC's application at several points expressed rue that little documentation was offered to allow the Commission intelligibly to choose b three, rather than two, channels were necessary. The multiple-ownership debate focused pr less significant. Especially in light of the Commission's express reservation of the right t arbitrarily in seeking to promote DBS by awarding STC, the first DBS applicant, three ch IV. The FCC's Decision to Designate the 12 GHz Band Primarily for DBS The DBS Order grants DBS eventual priority in the 12.2-12.7 GHz band (the GHz band). C ers) include local governments, banks, newspapers, railroads, utilities, and academic inst rs have a five-year transition period during which they can continue to operate without an ther bands. The Commission noted that this displacement deserved "serious attention" and p deferred those details to a separate and expedited rulemaking. See infra p. 1212. Several intervenors argue that this spectrum allocation decision is arbitrary and capri C, 148 U.S. App. D.C. 262, 459 F.2d 1286, 1303 (D.C. Cir. 1972) [*1210] (noting Commis (same). The gravamen of their claim is instead that, because the Commission several time istrative Radio Conference, 70 F.C.C.2d 1193, 1252 (1978), the Commission could not have c egedly failed to do in deferring to a future rulemaking the details of FS relocation. The o make use of that space, the FCC could not possibly have reached a reasoned decision on t The circumstances under which the Commission or any other agency may defer resolution o uisite judgment is in essence a pragmatic one. In an ideal world, of course, agencies wou utes indeed mandate that agencies proceed by only such a course. See, e.g., Public Citize on of alternatives that better maximize statutory objective); see also National Environmen , predictions, and policies are in flux and in which an agency would be paralyzed if all t 6, 2121, 56 L. Ed. 2d 697 (1978) ("Complete factual support in the record for the Commissi (Requirement that decisionmaking be comprehensively rational "makes ravenous demands on ag ng short."). We have therefore recognized the reasonableness of the Commission's decision See, e.g., Western Union International, Inc. v. FCC, 673 F.2d 539, 543 (D.C. Cir. 1982). resolution of crucial issues will affect the rule's rationale. ITT World Communications, Drawing the line between the permissible and the impermissible in this area will genera gnitude of the problem it will have to confront when it comes to resolve the postponed iss al record compiled, a reviewing court should accept the agency's estimation. FCC v. Natio 1095 at 1117 (D.C. Cir. 1984); Wold Communications, supra at 1479. Second, once the natur er review, for the agency to have deferred the issue to the future. With respect to the q ion as a practical matter is reversible should the future proceedings yield drastically un ffects on the public welfare or when future proceedings are likely to be systemically defe 2d 633, 658 (D.C. Cir. 1976)(Tamm, J., concurring) (an agency cannot "reckless[ly] decide "). Beyond these general guidelines, further delineation of the factors that give content In this case, we conclude the Commission acted reasonably in postponing the details of rs nor the actual amount of space on the 12 GHz band that novel DBS technology will in fac on FS users is certainly of substantial concern, and while the Commission agreed that the central question was instead how DBS would affect existing broadcasters. See DBS Order, erest warranted preferring DBS to FS even if significant costs were thereby imposed on FS y defer. See 47 U.S.C. @ 304 (license does not create entitlement); FCC v. Sanders Brothe roperty right as the result of the granting of a license."); see also Coastal Bend Televis DBS rules was to encourage and facilitate rapid development of DBS technology, a sensible garner orbital and frequency slots at RARC-83 for U.S. DBS systems, the Commission had a Finally, unlike ITT World Communications, supra, in this case the Commission was not ob ccommodated in the 18 GHz or higher bands, and tentatively identified other bands, to whic available in all areas, [*1212] and some licensees may face substantial relocation cost the accuracy of the Commission's predictions, those predications are not so manifestly de on was aware of the costs that relocation to various bands might pose, see DBS Order at 70 several steps to mitigate these costs. By grandfathering existing FS Users in for five ye The five-year period is particularly generous given that, since 1979, licensees of the 12. 1). FS Users were also allowed to remain on the 12 GHz band after the transition period as its willingness to entertain petitions for special relief -- relief which may include perm 83-241 at 10 & n. 9 (1983). There is no doubt that FS users will be affected should DBS become operational, and des Commission's decisions. The Act, however, requires the Commission to promote the public i cognizing the possibility of FS User harm, reasonably concluded that it could best fulfill We note finally that the relevant future proceedings were already in progress at the ti tion would be required; the future proceedings deferred to were thus sufficiently concrete tie up the loose ends left over from the DBS proceeding. Those proceedings have now been d Sept. 30, 1983)(FS Proceeding), which confirms the Commission's pledge to act promptly. redictions have been borne out. Nonetheless, the fact that those proceedings are not complete raises an important point the future returns on the agency's predictions substantially undermines the basis of the S Order, and if the Commission believes that that new information casts serious doubt on t in the DBS Order. See Telocator Network of America v. FCC, quoted supra at 1208. What we have said thus far applies to the general class of FS Users. However, approxima statutory obligation with respect to these FS Users. This obligation traces to the mandat fety broadcasters an absolute right to a particular spot in the spectrum, we do believe it 151 is buttressed by Congress' reaffirmation and elaboration of this mandate on several oc vailable for use by the private land mobile services, the Commission shall consider, consi ttee Report on this legislation states that "radio services which are necessary for the sa 1, 97th Cong., 2d Sess. 14 (1981), reprinted in [1982] U.S. Code Cong. & Ad. News 2237, 2 Sec. 9. (a) Funds authorized to be appropriated under section 2 of this Act shall be used ns of the electromagnetic spectrum. . . . (b) Pending adoption of a plan, the Commission, while making assignments and allocation Pub.L. No. 98-214, 97 Stat. 1467. Again, the legislative history is clear: "The Committee o. 98-356, 98th Cong., 1st Sess. 27 (1983), reprinted in 1983 U.S. Code & Cong. News 2219 We recognize that subsequent legislation cannot redefine the intent of the original ena t these amendments were conceived of as merely articulating the meaning already present in ecisions still pending for judicial review on the date of enactment; if the DBS Order were It is therefore troubling that the DBS Order itself gave no consideration as to how the S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971) (agency must consider all relevant factors) les filed a reconsideration petition in which it sought to impress upon the Commission the specific safety problems were created by the proposed relocation, the FCC had "both the du under review. The order further indicated that specific relief would be forthcoming to pr e of interference to DBS services in specific locations, compensation from DBS operators f Both at oral argument and at briefing the Commission represented to this court that "it erefore pledged to "guarantee the integrity of . . . safety and emergency services." Brief to fulfill this acknowledged duty. See Wold Communications, supra, at 1476. Because such concrete harm from the DBS Order and from the Commission's failure to grant specific reli have infected the DBS Order on this issue. Finally, we reject the contention of intervenor Association of Maximum Service Telecast The Commission expressly considered this contention and decided to prefer DBS, see DBS Ord aveat we have added that public safety broadcasters are not to be unduly burdened by DBS, V. Whether the Grant of DBS Authority to STC Comports with Applicable Statutes In addition to challenging the validity of the general regulatory approach to DBS taken ed by Congress for the purpose of developing an international communications satellite sys ive basis. On August 20, 1964, an Executive Agreement signed by the United States and ten nerally ITT World Communications, Inc. v. FCC, 233 U.S. App. D.C. 205, 725 F.2d 732, 736 n ational communications field was expanded by the International Maritime Satellite Telecomm commercial global maritime satellite system. COMSAT's entry into DBS via its subsidiary STC is a significant departure from the spec private enterprise requiring massive capital outlays and, for the first time, will involve esponsibilities for STC's DBS-related financial ventures. See infra pp. 1218-1219. Petitioner NAB and supporting intervenors argue that the Satellite Act precludes the FC held a hearing to determine whether COMSAT'S participation in STC's DBS venture constitute e claims. A. COMSAT's power to engage in broadcast activities The claim that COMSAT, and hence STC, is barred from engaging in DBS rests on two found (c) the Federal Communications Commission, in its administration of the provisions of the (8) authorize [COMSAT] to issue any shares of capital stock . . . or to borrow any mone public interest, convenience, and necessity and is necessary or appropriate for or consist 47 U.S.C. @ 721(c)(8) (emphasis added). NAB argues that, to be "consistent with" the Satellite Act, COMSAT's activities must fu 47 U.S.C. @ 735(a)(1), section 305(a)(2), 47 U.S.C. @ 735(a)(2), and section 304(b)(2), 47 e those of a common carrier; broadcasting, according to this second claim, is ultra vires These arguments were presented to the Commission and rejected by it. In response to NA as those activities do not impair COMSAT's ability to fulfill its INTELSAT/INMARSET respon sive review to determine the sorts of competitive businesses into which COMSAT could enter hat do not necessarily further the global system, so long as such activities are not incon fore and since the COMSAT Study has allowed COMSAT to provide a variety of services unrela 2d 997 (1977), aff'd sub nom. United States v. FCC, 209 U.S. App. D.C. 79, 652 F.2d 72 (D. *1216] FCC include the manufacture of telecommunications equipment, provision of consult No court has thus far passed on the validity of the Commission's long-standing interpre key defect in NAB's argument on section 201(c)(8) is that it grants too narrow a realm to e Act, Reply Brief for NAB at 13 n. 35, but then asserts that those purposes are limited t bal communications satellite system that would confer the benefits of satellite technology . Because the global system envisaged by the Act has been successfully established, COMSA te experience with satellite technology, has developed sustained expertise with respect to he very substantial benefits to be derived from the company's application of its expertise not sufficiently plain or compelling to warrant our taking this step. See Columbia Broad We also do not believe that NAB's second basis for attacking the grant of a DBS applica statutory responsibility. Typical of NAB's support for its position is section 401 of the now: Unlike other carriers, the Corporation will not furnish service to the general public. . . rve the general public. Hearings on S. 2814 before the Senate Committee on Commerce, 87th Cong., 2d Sess. 65 (1962 Broadcasters . . . will be customers of a common carrier, who, in turn . . . will derive f f whoever is a licensed broadcaster. Hearings on H.R. 11040 before the Senate Committee on Foreign Relations, 87th Cong., 2d Se d are anomalous in a domestic context." Domestic Communication-Satellite Facilities, 22 F. to deal with a problem unique to COMSAT's international functions; the legislative history ilable to only domestic carriers and other "authorized" entities. Accordingly, Congress en ection 401 thus does not require that COMSAT's non-INTELSAT businesses be operated on a co More generally, the Satellite Act designated COMSAT as a common carrier only for purpos tting rates. The statements of Chairman Minow, as well as similar statements cited in NAB a common carrier in the provision of international communications services. We have rece ourt upheld the FCC's power to allow COMSAT to lease satellite channels to non-common carr ngress intended forever to restrict COMSAT's competition for retail business. Instead, we U.S.C. @ 701(a)" (emphasis added in opinion) and found those statements limited by that p er the development of satellite communications technology, for that aim is certainly withi Recent amendments to the Satellite Act buttress the conclusion that COMSAT may engage i nnect the INMARSAT system with "any common carrier or other entity in which [COMSAT] has a m, or other entity in which [COMSAT] has any ownership interest." 47 U.S.C. @@ 752(c)(2) a ments may be of some aid in illuminating the original intent; that is particularly so wher with more precision the scope of the delegated power. Thus, we view these amendments as s The 1978 Amendments are of further significance because, as noted above, they specifica y while remaining able to carry out effectively the functions assigned to it by the Satell nd application of that standard to particular proposed activities and therefore suggested y to define the role of this private corporation charged with important [*1218] public COMSAT's general corporate powers at the time the Act was passed. Because the statutory la of this issue by the other branches is appropriate. We therefore find no legal barrier to In holding that COMSAT may engage in certain non-INTELSAT or INMARSAT activities even w te the colorful drafting of NAB's arguments, we need not decide today whether the FCC inte when COMSAT's activities are directed to the purposes for which it was created -- the deve ection 201(c)(8). Participation in DBS meets this standard. B. Whether STC's DBS Venture will Impair COMSAT's Ability to Fulfill its Statutory Obl Even if COMSAT is not barred as a matter of law from activities that do not threaten it n argue that COMSAT's ratepayers will end up bearing increased capital costs as a result o mmission was first required to hold an evidentiary hearing before concluding that neither STC projects the cost of its system through the first year of operation (1986-87) to be sources. All loans to STC are to be collateralized by STC assets and recourse to COMSAT i ed tax return due to the investment tax credits STC will receive and the initial losses th s operations in general would not affect COMSAT adversely. Specifically, the Commission st (a) STC must first use all reasonable means to secure capital from external financial m (b) Commission approval is required for any COMSAT guarantees of additional STC loans; (c) the Commission has imposed structural, accounting, and other requirements designed (d) the Commission has reserved the right to require modifications in COMSAT's corporat on. [*1219] STC Decision, 91 F.C.C.2d at 965-73. On the basis of these limitations, the FCC We do not share the Commission's firm conviction that these conditions absolutely assur COMSAT's expected cash flow and then showing that this cash flow, combined with additional erlying the Commission's calculation are subject to question, such as the amount of debt c eral participation in DBS does rather clearly put the corporation at some risk; as interve for INTELSAT/INMARSAT projects. Nonetheless, we decline to overturn the Commission's judgment that COMSAT participation derestimated, COMSAT operations would not be threatened unless STC found itself without bo Commission will not be vigilant in reviewing such requests. When the granting of addition obligations. We also note that the Commission has stated that it will require corporate m More generally, we have held supra that COMSAT may enter into at least some non-INTELSA ows us to sit as a super-board of directors to oversee the business judgments reached by C ately familiar with COMSAT's operations. We therefore must defer substantially in individ re forthright in delineating the general framework within which it will asses the level of SAT's equity contribution is 30-35% of the combined equity of COMSAT and STC, should not b ion's approval of COMSAT's business judgment. We also see no basis for concluding that COMSAT will be able to exact monopoly rates fr MARSAT activities solely on the cost of capital for those activities." STC Decision, 91 F. ization of STC by COMSAT ratepayers, and we typically accept the Commission's view on such ross-subsidization). Impermissible cross-subsidization will therefore not inevitably foll rather than by its ratepayers. Finally, we do not believe the FCC was required to hold an evidentiary hearing on these that are both "substantial and material" are raised in a petition to deny an application rimarily on the Commission's policy choices or predictive judgments. Moreover, in reviewi the scope of our review is quite narrow; we defer to the expertise and experience of the C cision of when hearings are necessary or desirable to clarify issues is one which lies in West Michigan Telecasters v. FCC, 130 U.S. App. D.C. 39, 396 F.2d 688, 691 (D.C. Cir. 1968 easonable for the Commission to conclude that an evidentiary hearing would not add to what e evidence," Communications Investment Corp. v. FCC, 206 U.S. App. D.C. 1, 641 F.2d 954, 9 s was not required. VI. Procedural Challenges A host of other procedural challenges is also presented. The most important of these i nsee offers to prove that the economic effect of another [rival] station would be detrimen is claim in a full-scale evidentiary hearing and to make findings on it before granting th We disagree. The Carroll doctrine and its subsequent codification at 47 U.S.C. @ 309 w on to a broadcast area would diminish service because competition between the two stations t may not be. Id. at 443. The purpose of a Carroll hearing is to allow the FCC to make a f That very purpose, however, has already been satisfied in this case. Before granting S mpact on local broadcasting, was in [*1221] the public's net interest. The DBS Order the possibility that terrestrial broadcasters might suffer some audience loss and that som benefit of the public."). The grant of an individual DBS license, unlike a traditional br s, a Carroll hearing under these circumstances would force the agency to redecide in an ev Moreover, because the Communications Act does not require FCC rulemaking proceedings to , 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973); see Vermont Yankee Nuclear Power C y such an effect, for the FCC would then have to engage in protracted and formal evidentia er to formalization of the FCC rulemaking process; but we find it implausible that Congres t to extend Carroll to the present case. Only if there were convincing reasons to expect that the conclusions of the DBS Order w eded; we are hard pressed to imagine how such a situation could arise and, in any event, w area to which STC's initial license applies, will be hurt by DBS, and that six UHF station to the rest of the country. Absent convincing evidence of such a distinction, the FCC had 1286, 1297 (D.C. Cir. 1972) ("[A] petitioner seeking a hearing on the Carroll issue must derogation of service to the public."). The FCC therefore did not err in refusing to hol We pause to consider briefly one other procedural challenge to the DBS Order and the ST n. The Commission instead acted on the DBS rules and the STC application at the same time uce to the proper dispatch of business and to the ends of justice," 47 U.S.C. @ 154(j) (19 97 S. Ct. 247, 50 L. Ed. 2d 173 [*1222] (1976). And the Commission, like most other a S. Ct. 1575, 1580-81, 91 L. Ed. 1995 (1947). In this case, there was ample warrant for th ate DBS frequencies and orbital slots at RARC-83. Second, given the long lead time necess t broadcast satellite technology" that has already been recognized by this court. See Ord or experimental service reasonably accommodated these goals with the public's right to par ty to be heard. We therefore hold that, however rushed the Commission's judgment may have CONCLUSION When technology as novel as DBS confronts a statute as broadly drafted as the Communica this leeway in a reasonable manner. We therefore vacate only that portion of the DBS Ord ty the STC Decision. It is so ordered.