Document ID: A:\NAITPD2.TXT NATIONAL ASSOCIATION OF INDEPENDENT TELEVISION PRODUCERS AND DISTRIBUTORS, WARNER BROTHERS, INC., COLUMBIA PICTURES INDUSTRIES, INC., MGM TELEVISION, UNITED ARTISTS CORPORATION, MCA, INC. and TWENTIETH CENTURY-FOX TELEVISION, SANDY FRANK PROGRAM SALES, INC., WESTINGHOUSE BROADCASTING COMPANY, INC., CBS, INC., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and THE UNITED STATES OF AMERICA, Respondents, AMERICAN BROADCASTING COMPANIES, INC., et al., Intervenors Docket Nos. 75-4021, 75-4024, 75-4025, 75-4026, Nos. 847, 848, 849, 850, 851 - September Term, 1974 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 516 F.2d 526 March 7, 1975, Argued April 21, 1975, Decided PRIOR HISTORY: On petitions for review, pursuant to 47 U.S.C. @ 402(a), of amended Federal Communications nlawful as in violation of the First Amendment or of Section 326 of the Federal Communicat unconstitutional vagueness, but also held that the FCC should not determine what programs articular time slots while permitting other movies to be shown in the same time slots was DISPOSITION: Matter remanded to the Commission for further consideration in conformity wit COUNSEL: Katrina Renouf, Washington, District of Columbia (Margot Polivy and Edward J. Kuh ors. Stuart Robinowitz, New York, New York (Donald E. Brown, Moses Silverman, Paul, Weiss, R s Corporation, MCA, Inc., Twentieth Century-Fox Television. Kenneth A. Cox, Washington, District of Columbia (William J. Byrnes, John Wells King, A John D. Lane, Washington, District of Columbia (J. Carter McKaig, Ramsey L. Woodworth, Timothy B. Dyk, Washington, District of Columbia (J. Roger Wollenberg, Sally Katzen, Ri nor CBS, Inc. Thomas A. Frohock, Washington, District of Columbia (James A. McKenna, Jr., McKenna, Wi Jerome J. Shestack, Philadelphia, Pennsylvania (Bernard C. Segal, Peter S. Greenberg, D hington, District of Columbia, of Counsel), for Intervenor National Broadcasting Company, Frank W. Lloyd, III, Washington, District of Columbia (Earle K. Moore, New York, New Y ition Community Coalition for Media Change, Alabama Media Project and Alabama Civil Libert nd Educational Council, Oakland Media, San Francisco Committee on Children's Television, a Daniel M. Armstrong, Counsel, Federal Communications Commission (Ashton R. Hardy, Gener spondent Federal Communications Commission. JUDGES: Friendly and Gurfein, Circuit Judges, and Bartels, District Judge. * * Of the Eastern District of New York, sitting by designation. OPINIONBY: GURFEIN OPINION: [*528] GURFEIN, Circuit Judge: In 1970 the Federal Communications Commission adopted rules and regulations with respec d "financial interest and syndication". The rules concerning "financial interest and syndi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Syndication is the licensing of television programs for broadcast to stations on a m ork. Under the Syndication Rule, television networks are forbidden to "engage in the busin ch as an exclusive license to distribute the program in syndication. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Prime Time Access Rule, section 73.658(k) of the Commission's Rules, prohibits tele t people watch television ("Prime Time") to allow the remaining hour ("Access Time") to be The purpose of the Prime Time Access Rule was to free the affiliated stations from the exceptions for certain network programs of uncontrollable duration, namely, "special news The Commission pointed out that in view of the networks' common practice of offering only vening for non-network programs on affiliated stations. n3 To encourage access for indepen in place of the excluded network programs, for otherwise, as the Commission put it, "this 23 F.C.C. 2d at 395, also in 35 Fed. Reg. 7417-26 (1970). The validity and constitutional Cir. 1971). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The Commission also indicated it would consider waivers for live sports events that . n3 In practice, access time became 7 to 8 P.M. on week nights and generally 7-7:30 and n4 "Off-network" programs are those which have played on the network, have finished the - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission re-examined the Prime Time Access Rule thereafter and issued a 1974 Repo ns for certain categories of programs within the six remaining half-hours. It also pegged 974). The present petitioner challenged PTAR II. This court refused to review the Commissi from making the amendments effective, before September 1975. National Association of Inde after the Commission had had an opportunity to conduct further proceedings. The court call of the prime time television rule, and suggested that the views of the Department of Justi Pursuant to these suggestions, the Commission held further hearings which resulted in t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 On November 15, 1974 the Commission released a public notice announcing the specific and the Second Report and Order was released the next day. Docket No. 19622, FCC 75-67, 29 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - PTAR III In PTAR III the Commission retains the original prime time access rule of PTAR I except vided the station had carried one hour of local news before seven o'clock; (2) Sports runo ccess time for the showing of network or off-network programs designed for children of the anner later to be described. The Commission, while not incorporating it as a rule, also ad hour-long access shows, except for "compelling public interest reasons." Second Report pa e, to material (whether it be local, syndicated or network programming) that is particular .C.C. 2d 829. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 The definition of these types of programs is discussed, infra. The exempted programs - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Parties and Their Positions The petitioner, NAITPD, seeks review pursuant to 47 U.S.C. @ 402(a) and 28 U.S.C. @ 234 me Access Rule in its original form (PTAR I), but they object to the new exemptions. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 A petition for review was also filed by Sandy Frank Program Sales, Inc., a third ind - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Divergent views on every aspect of the matter were presented to the Commission. The net ts to the Prime Time Rule adopted in PTAR III, but challenges the constitutionality of PTA n only on PTAR III, but otherwise supports PTAR I. Warner Brothers and other motion pictu e exclusion from access time of motion pictures which have played on a network. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 The Committee for Independent Television Producers supports the Warner position. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Citizens Communications Center, which speaks for a number of public interest groups ons, not on constitutional grounds but rather as an irrational exercise of the rulemaking - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The Department of Justice Antitrust Division filed a brief expressing the view that sity, but stating that the decision of the Commission is within its discretion, and recomm - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I The Attacks on the Prime Time Access Rule (PTAR I) We turn first to the attack on the Prime Time Access Rule itself. Warners and CBS, whil opinion we stated that in Mt. Mansfield, "we recognized the experimental nature of the rul at 252. Warner contends that experience has shown the rule to be inimical to the public intere opted. Before we consider the arguments based solely on the alleged failure of the experim A. The Mt. Mansfield Opinion In Mt. Mansfield, this court considered the general claims that the Prime Time Access R onally on the network distributors whose products are barred for a half hour period, on th We decided against these general contentions in Mt. Mansfield, supra. There is no reaso hat First Amendment protection is applicable to the broadcast industry, United States v. P n of constitutional standards to their regulation which differ from those applicable to ot d that technological factors in the broadcast industry make it impossible for all who wish field, supra, 442 F.2d at 477, citing Red Lion, supra, 395 U.S. at 396-400. Accordingly, " 95 U.S. at 391. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 47 U.S.C. @ 326 provides: "Nothing in this chapter shall be understood or construed to give the Commission the po ission which shall interfere with the right of free speech by means of radio communication - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We further recognized that in evaluating competing priorities for access to the airways ible dissemination of information from diverse and antagonistic sources is essential to th "When viewed in the light of these principles, the prime time access rule, far from vio e 'diversity of programs and development of diverse and antagonistic sources of program se 7. We finally held that while the rule may well impose a very real restraint on licensees, pported in our conclusion by the circumstance that the Supreme Court had already upheld th n two affiliated stations. n11 N.B.C. v. United States, 319 U.S. 190, 63 S. Ct. 997, 87 L. ensee to broadcast other programming because of the mandate to give fair coverage to discu - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 "Option time": -- Network affiliation contracts usually contained "network optional n12 The "fairness doctrine" requires licensees to devote a reasonable amount of time to es. The general "fairness doctrine" was held constitutional in Red Lion, supra. It is dist - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We thin B. The Argument that PTAR I has failed The intervenors who oppose PTAR I train their arguments on the point that there actuall ated purpose. They argue, accordingly, that the constitutional underpinning of Mt. Mansfie The Commission considered these contentions, including the negative report of its own e nted, however: "Should the time come to review the rule again, it may well be that a conti - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Economist's Final Report, "The Economic Consequences of the Federal Communications ssenting opinion of Commissioner Robinson, 50 F.C.C. 2d 829. n14 Comments were filed by the Department of Justice and the Office of Telecommunicatio d other program suppliers, including the joint presentation of Warner and the other Hollyw - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We are now asked to overrule the judgment of the Commission that the present lack of di be held constitutional on the assumption of a valid legislative or agency purpose, and th erence to the scheme of PTAR I is subject to reversal by this court on First Amendment or In our review, we must start with the assumption that no matter how dedicated they may terest. It is the task of the Commission to find, as best it can, what is in the "public i The extraordinary development of the television industry around a relatively [*533] f television is a balance between encouragement of access to the medium and the prevention o ch in broadcasting is a part of economics, and it is surely that since the broadcast licen C. Lack of diversity of programming in access time It must have been understood, generally, when this court upheld PTAR I, that the Commis of access time. To the extent that the enormous resources of the networks were withheld from one hour o tion is not necessarily the true measure of its quality, it is unfortunately also true tha programs on a first-run syndication basis. Independent producers must pay distribution fe n trying the untried, the not so popular, or a program in the high cost bracket. As a resu The result has been, as could have been expected to some degree, that it is largely the ind of Gresham's law seems to operate in first-run syndication -- the cheaper tending to d he entertainment area, the emphasis has largely been on game shows and animal shows, game terns in access time have dropped significantly. Comedy has been virtually eliminated. The so giving the viewer no choice. On the other hand, as the Commission found, and as the public amici stress, programs of One may assume that in the long run game shows will pall to some extent and that independe - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The public amici note that local programming is aided by PTAR because it takes from n16 Since the argument of the appeal, Forbes Magazine has ventured the opinion that "ga - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We assume that there is a lack of diversity in access time programming. While Viacom an es on their own, as independent successors to their parents, the scarcity of entirely new access time experiment has been relatively short -- four years. The Commission notes that 9. The Commission also finds that the very uncertainty of the future of the Prime Time Acc so Second Report App. C, para. C-62, 50 F.C.C. 2d 829. In sum, the Commission has determin - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 The Antitrust Division noted in its letter response to the F.C.C. dated September 2 "Thereafter, however, the prime time access rule never had a chance to become a stable e Commission on August 7, 1970, significantly amended the rule, delaying until October 1, to the revised rule's fully-effective date, the Commission initiated a further rule-making rule. [44 F.C.C.2d 1081 (1974)]." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - D. The argument that network "dominance" has increased under PTAR I The issue of whether network dominance has actually increased under PTAR I is peculiarl kets as well. We cannot, as a reviewing court, determine de novo the relative weight of th Suffice it to say, it is obvious that control by the networks of three hours of prime t twork domination if, as Warners contends, curtailment of network prime time has created a ey than they did before PTAR I. We note that while a purpose of PTAR I was to encourage independent production for acce blic interest in a regulated industry often makes some segments of an industry richer and tment of conflicting private interests." Radio Corp. of America v. United States, 341 U.S. In sum, we do not find so abysmal a failure of purpose as to require us to say that wha ter of law. Radio Corp. of America v. United States, supra, 341 U.S. at 420. "The public i to serve the public interest in the long run for that of [*535] the agency chosen by and (1), and 313. 47 U.S.C. @@ 151, 152, 154(i), 301, and 303(b)(f)(g) and (i). The F.C.C. he antitrust division and the public. It has written a reasoned opinion, accompanied by re but if the contention is simply that the Rule is "not likely to succeed in accomplishing w re is no basis for abrogating the Rule unless we reverse the prophecy of the Commission on and capricious. We hold, accordingly, that the fundamental bases for the Rule already deci We should add a comment, however, The Commission has rejected the suggestion of some, centive for investment. We are not unmindful that if PTAR III should fail to achieve diver we will not now interfere, cannot be used indefinitely as an excuse for lack of diversity for its failure. "If time and changing circumstances reveal that the 'public interest' is , supra, 319 U.S. at 225. The deleterious effect of the overhanging threat of revisitation II Are the amendments adopted in PTAR III in violation of the Constitution or Section 326? We next come to the question of whether the amendments themselves, rather than the expe acket. It was always implicit in the judgment that experience might require modification o was not working as well as was anticipated, should it be repealed entirely or amended? One solution might have been to recognize that one full hour of access time, even with le curtailment of one half of the access time was a radical enough change to upset the ent The Commission did not do this, however. Instead of an absolute curtailment of access t ime remain cleared. We do not think that PTAR III was, as has been suggested, a compromise oduct; (2) of affording an opportunity for diversity of programming; and (3) of encouragin The method chosen was well within the competence of the Commission. As Judge Learned Ha 319 U.S. 190, 63 S. Ct. 997, 87 L. Ed. 1344 (1943). Recognizing that the practical situati eeable, as bait to the stations to use, but only for program categories believed to be in This is said to be in violation of the First Amendment. It is true that the Commission uld raise serious First Amendment questions. On the other hand, the general power of the F iolates the First Amendment. Office of Communication of the United Church of Christ v. F.C 3-72 (1970); Citizens Committee to Save WEFM v. F.C.C., 165 U.S. App. D.C. 185, 506 F.2d 2 The Supreme Court has told us that "this mandate to the FCC to assure that broadcasters 87 L. Ed. 1344 (1943)." Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 380, 89 S. Ct. The only way that broadcasters can operate in the "public interest" is by broadcasting of interest. "There is no sanctuary in the First Amendment for unlimited private censorshi s paramount." Id. at 390. Since the public cannot through a million stifled yawns convey that their television fa age competitive fare. If a large segment of the public prefers game shows to documentaries g itself in general program format and the kinds of programs broadcast by licensees. Natio rced network programs on affiliated stations. National Broadcasting Co. v. United States, National Association of Theatre Owners v. F.C.C., 136 U.S. App. D.C. 352, 420 F.2d 194, 2 [*537] The Commission by this amendment of the rule is not ordering any program or ev k programs in specified categories of programming. One may, of course, argue, as Warner do e, 412 U.S. 94, 93 S. Ct. 2080, 36 L. Ed. 2d 772 (1973), has decided against a "right of a ss to others in the same hours. The analogy sought to be drawn from Police Department of Chicago v. Mosley, 408 U.S. 92 picketing in an area near a public school, saying that "any restriction on expressive act speech-related activity in a forum where unlimited physical access is possible and a broa game show over a panel on inflation. The non-labor pickets in Mosely had no similar freed Nor does the program category method of reconciliation of the public interest create "t 126 (emphasis added). While motion pictures are protected against censorship under the Fir r censorship of content, is not as strong as is the protection in broadcasting invoked by affairs category on a non-discriminatory basis. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 Thus, for example, the Supreme Court in N.B.C. v. United States, supra, 319 U.S. at - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Pre-Censorship Issue After the decision in Mt. Mansfield, the Commission had to pass upon waivers for specif ut any formulated regulations such as would be required in good administrative practice. T In PTAR III the Commission has now attempted to state certain categories for permissibl d rule of administrative procedure and a desirable accent on the licensee's freedom to con ions by the networks, that can be duly reported. Nor are the categories different in kind from the suggested classifications of programs by the Commission to be in the public interest. n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 The public has an interest in diversity of entertainment formats. Thus, whether aba tizens Committee v. F.C.C., 141 U.S. App. D.C. 109, 436 F.2d 263 (1970). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The F.C.C. has long been concerned with the amount of time spent on local self-expressi C.C. 2303 (July 29, 1960). The question, simply put, is whether permitting the same categories to encroach on acce Implicit in the power to license must be some power to regulate. See F.C.C. v. American Br The power to regulate broadcasting is, of course, limited by the First Amendment. The C d categories promulgated to serve the public interest. Nor does it purport to do so. The Commission has not used the carrot-and-stick approach than four hours of prime time through PTAR I, it had limited the diversity of programs th programs for children, documentary films and public affairs presentations. The exemption of network children's programs is a rational development of the Commissio ommission stated: "One of the questions to be decided here is whether broadcasters have a The Commission found that PTAR I, by cutting prime time to three hours, had virtually e e Commission, of necessity, had to go back to the networks to achieve its children's progr - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 The Commission found that there are only a small number of syndicated (1) children' 33 and 38, 50 F.C.C. 2d 829) in contrast to "the tremendous resources which the networks est, they seem presently available only through the networks. If that condition changes, w - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is suggested that the Commission should have elected to force the stations to carve om the networks -- it is not for this court to say. Nor is it for this court to say that t [*539] The argument that the classifications are too vague The further claim is made that the classifications of programs are too vague to be cons We must weigh the relative vagueness of the standard against the practical sanctions fo sorial. On the other hand, a category should not be so undefinable that it would not be un , 478 F.2d 594, 597 (1973), cert. denied, 414 U.S. 914, 94 S. Ct. 211, 38 L. Ed. 2d 152 (1 een "drug oriented" songs, Yale Broadcasting Co., supra, it is proper to require them to s finitions might end in a stylized format close to censorship. In balancing the public interest against what we believe to be the exaggerated fears of ows any power to regulate program content. Like King Canute, it seeks to assure its flatte Of the three new types of programs exempted, (1) "public affairs" program is not define on-fictional and educational or informational, but not including programs where the inform elevision) where more than 50% of the program is devoted to the presentation of entertainm Whether a particular program is a "public affairs" program is probably better defined b theless, we direct the Commission to formulate a broad definition of "public affairs progr erless to insist that [licensees] give adequate and fair attention to public issues." Red at 393. A "children's program" is a program "primarily designed for children aged 2 through 12. that domain must leave behind their sense of self-assurance. A conclave of all the adverti s terms, exclude fiction or drama, fairy tales or poetry, nor does it prescribe [*540] designed for children." Of course, other factors, such as a preponderance of shaving cream - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n21 The Commission itself has noted that "judgments concerning the suitability of parti be unacceptable to the American public." FCC Report on Broadcast of Violent, Indecent and n22 To the extent that the Commission may imply that fiction is excluded, we see no rat - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While the description of the category may be attacked as too vague, a more sharply defi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 Even the Commission's use of NBC's Disney program for illustration has been seized 975 it appears that only NBC's Disney program would come within this exception." Second Re the networks' regular prime time schedules" that would also come within the exception. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - "Documentary programs" are recognizable as informational and educational. To avoid the enough of them on access time, and it is not the intention to let the networks add some m - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 The t costs alone, cannot be produced except if costs are recouped from a first network run. S - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The second part of the definition is designed to deal with a possible loophole, the pre s simply to avoid subterfuge. It is rational, since the purpose is to make the time slots If it were not true that advisory opinions on program content trench upon censorship, t ontroversy or to remove uncertainty." But such ad hoc decisions are not desirable because entirely at large. Since it would not be in the public interest to institute what could become, in effect, has hardly been a history of arbitrary oppression. Banzhaf v. F.C.C., 132 U.S. App. D.C. orners to fear that severe sanctions will be imposed for good faith error. His hearing on it is more in the public interest to let the licensee interpret the exemptions himself tha tend to draw it into a continuing case-by-case determination of who should be heard and w hether particular programs fall within the exempted categories. The Argument of Illegal Delegation NAITPD makes the further contentions: (1) that the Commission, in its rule-making proce to declare the "public interest" to the networks and their affiliates. We do not doubt that the entire tenor of the Second Report and Order was a finding by t The question of improper delegation is another matter. The rule itself -- 73.658 Affili ared what types of programs may be shown in access time in the "public interest". To give ssion may not force programs on licensees. A more serious question is raised, however, on the gloss that the Commission puts on it programming and hour-long access shows, except for "compelling public interest reasons." regard appears to be unfettered. We do not think that the policing duty imposed upon the Commission under 47 U.S.C. @ 30 determine public interest. We think that for the sake of orderly regulation, the Commissi Commission cannot leave the choice of which is the best of two worlds to the discretion of Some of the parties have also pointed out inconsistencies in the reasoning of the Commi conclusions of the Commission. Since there has been no showing of the probability that fu ink the Commission has done a permissible job, in its "putative proficiency" in evaluating The Commission does not have to wait for evidence that can only be supplied by the futu "It is true that the choice between adopting standards now or at a later date was not f overrule an administrative decision merely because they disagree with its wisdom. We canno erest as a matter of law." We recognize that the more network documentary programs, for example, are permitted in ze some inconsistency when the Commission defends the continuation of the Prime Time Acces s programs as a ground for permitting network intrusion into access time. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 On the other hand, independent producers can also aim for network prime time which - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The answer is simply that the priority of competing public values is not decided either ack where only one train can run at a time. "The court's responsibility is not to supplant ideration to each of the pertinent factors." See Permian Basin Area Rate Cases, 390 U.S. 7 This is not to imply that we think that the "public interest" concept is solely to stim the "public interest." The development of competition, while desirable, is not the single Off-Network and Feature Film Restrictions The motion picture producers (Warner) attack the new rule that bars all "feature films market within a two year period. . . . If a movie has never appeared on a network, it may .C.C. 2d 829. The line is drawn, then, between movies that have ever been broadcast on a network, whi in theaters, which are allowed. We face the question whether this distinction between categories of playable movies in uct is concerned, by the "financial interest" and "syndication" rules adopted with PTAR I. rks themselves are no longer engaged in the off-network syndication of motion pictures. The only reason advanced for the restriction of the off-network product from access tim that have played on a network. If the purpose is simply to free access time for independe ess of a threat to the success of the access time concept than movies that have. It seems d, viewed solely as a competitive threat to access time, upon whether the film played netw - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 In PTAR II the Commission had recognized that the distinction between movies based 30-8 P.M. time slot. See 44 F.C.C. 2d at 1136. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - If feature films that have never played network are permitted to play cleared access ti syndication rules, the networks no longer control the off-network distribution of either t o say that either type of motion picture is more harmful than the other to the access time The desire to stimulate first-run syndication production of programs other than movies feature film which has to encroach upon other time periods, and, as such, these off-networ han movies, is arbitrary and capricious in the light of the policy goals of the Commission In sum, feature films have had only a very small impact in the past on prime time. n27 ede access time, and by the expensive prime time that comes after it. n28 If conditions sh independent programs for access time. There is no reason, therefore, to bar one class of m rmits movies never seen on a television network to be played in cleared access time it mus - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n27 For ten years before the adoption of PTAR I first-run film syndication had also bee n28 The Commission noted that "movies occupied only 4.5% of access period time in 1972- es on five week nights from 6:30 to 8 P.M. Two of these were owned by a network, ABC. Ibid - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - With the exceptions noted in this opinion we deny the petitions to review on the ground 420, and we affirm the Commission. We cannot compel the Commission to adhere to its Order, .C.C. v. Pottsville Broadcasting, 309 U.S. 134, 145, 84 L. Ed. 656, 60 S. Ct. 437 (1940); In view of the remand, with which the Commission should deal expeditiously, we leave it The Commission should consider, in conjunction with its new effective date, a ceiling o ion. This panel will retain jurisdiction for review of the effective date fixed and matters Remanded to the F.C.C. for further consideration in conformity with this opinion.