Document ID: A:\SCHURZ.TXT SCHURZ COMMUNICATIONS, INCORPORATED, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. Nos. 91-2350, 91-2597, 91-2598, 91-2684, 91-2855, 91-2883, 92-1117, 92-1120, 92-1484 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 982 F.2d 1043; 1992 U.S. App. LEXIS 32135 November 24, 1992, Submitted December 7, 1992, Decided SUBSEQUENT HISTORY: Reported at: 982 F.2d 1043 at 1055. Rehearing Denied February 16, 1993, Reported at 1993 U.S. App. LEXIS 2325. PRIOR HISTORY: [**1] Petitions for Review of Orders of the Federal Communications Comm COUNSEL: For COALITION TO PRESERVE THE FINANCIAL INTEREST AND SYNDICATION RULE, Petitioner Washington, DC 20006-1812, USA. Michael R. Gardner, 202/785-2828, Suite 710, 1150 Connect el McConnell, 202/463-2000, MAYER, BROWN & PLATT, 2000 Pennsylvania Avenue N.W., Washingto 24, NATIONAL BROADCASTING COMPANY, 30 Rockefeller Plaza, New York, NY 10112, USA. For CBS 02/429-7000, WILEY, REIN & FIELDING, 1776 K Street N.W., Washington, DC 20006, USA. David , 202/775-5660, Suite 800, FISHER, WAYLAND, COOPER & LEADER, 1255 23rd Street N.W., Washin 0 M Street N.W., Washington, DC 20036, USA. For CAPITAL CITIES/ABC, INCORPORATED, Petitio shington, DC 20037-1420, USA. For FOX BROADCASTING COMPANY, Petitioner (91-2598): William FFILIATES ASSOCIATION, Petitioner (91-2597): Gregory M. Schmidt, 202/662-6000, Martin Wald 1-2350): William N. Farabaugh, 219/233-5175, Suite 316, FARABAUGH & CHAPLEAU, 205 W. Jeffe For FEDERAL COMMUNICATIONS COMMISSION, Respondent (92-1484:) James F. Rill, Room 8104, DEP anter, 202/632-7112, FEDERAL COMMUNICATIONS COMMISSION, 1919 M Street N.W., Washington, DC , Washington, DC 20530, USA. For UNITED STATES OF AMERICA, Respondent (92-1484, 92-1120, 9 enue N.W., Washington, DC 20530, USA. James F. Rill, Room 8104, DEPARTMENT OF JUSTICE, An ion, Appellate Section, 10th & Pennsylvania Avenue N.W., Washington, DC 20530, USA. For F E, Antitrust Division, 555 Fourth Street N.W., Washington, DC 20001, USA. Robert Pettit, UNITED STATES OF AMERICA, Respondent (92-1117, 91-2855, 91-2684): Catherine G. O'Sullivan es F. Rill, Room 8104, DEPARTMENT OF JUSTICE, Antitrust Division, 555 Fourth Street N.W., ate Section, 10th & Pennsylvania Avenue N.W., Washington, DC 20530, USA. For UNITED STATE Robert Pettit, 202/632-7020, Daniel M. Armstrong, 202/632-7112, Sue Ann Kanter, 202/632-7 For MEDIA INSTITUTE, Amicus Curiae (92-1484, 92-1120, 92-1117, 91-2883, 91-2855, 91-2684, For ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INCORPORATED, Intervenor - Respondent 0036, USA. For PROGRAM PRODUCERS AND DISTRIBUTORS COMMITTEE, Intervenor - Respondent (91- ARTIS, HEDRICK & LANE, 1666 K Street N.W., Washington, DC 20006-2866, USA. For FBC TELEV 55 23rd Street N.W., Washington, DC 20037, USA. For COALITION TO PRESERVE THE FINANCIAL IN 202/887-1500, MORRISON & FOERSTER, 2000 Pennsylvania Avenue, Washington, DC 20006-1812, US OERSTER, 2000 Pennsylvania Avenue N.W., Washington, DC 20006, USA. For KING WORLD PRODUCT 3 New Hampshire Avenue N.W., Washington, DC 20036, USA. For TRIBUNE BROADCASTING COMPANY, For CHRIS CRAFT TELEVISION, INCORPORATED, Intervenor - Respondent (91-2350): George H. Sh ED, CHANNEL 50 TV CORPORATION, Intervenor - Respondent (91-2350): Robert J. Bates, Jr., 31 r - Respondent (91-2350): Richard R. Zaragoza, 202/775-5660, Suite 800, FISHER, WAYLAND, C , III, 202/429-7074, James R. Bas, WILEY, REIN & FIELDING, 1776 K Street N.W., Washington, 2/463-2000, MAYER, BROWN & PLATT, 2000 Pennsylvania Avenue N.W., Washington, DC 20006, USA OADCASTING COMPANY, 30 Rockefeller Plaza, New York, NY 10112, USA. For CAPITAL CITIES/ABC, & PICKERING, 2445 M Street N.W., Washington, DC 20037-1420, USA. For COALITION TO PRESERVE THE FINANCIAL INTEREST AND SYNDICATION RULE, Intervenor (92-1120 28, Suite 710, 1150 Connecticut Avenue N.W., Washington, DC 20036, USA. Steven S. Rosenth enor (92-1120, 92-1117): John D. Lane, 202/457-7885, 11th Floor, Ramsey L. Woodworth, 202/ , UNITED TELEVISION, INCORPORATED, Intervenors (92-1120, 92-1117): George H. Shapiro, 202/ JUDGES: Before BAUER, Chief Judge, POSNER, Chief Judge, and FAIRCHILD, Senior Circuit Judg OPINIONBY: POSNER OPINION: [*1055] POSNER, Circuit Judge. Last month we vacated the FCC's new financial interest and syndi that we were vacating. Schurz Communications, Inc. v. FCC, 982 F.2d 1043, slip op. at 22 ( new rules were (as we had found) arbitrary and capricious, the effect would be to vacate a s (we [*1056] thought one had, but were wrong). Such an order would therefore make every tal briefs advising us as to the best course to follow in this unusual situation. The brie There are five possibilities. We can-- 1. Simply vacate the Commission's order, even though one consequence would be that the 2. Vacate everything in the Commission's order except the repeal of the 1970 rules, so 3. Issue no order vacating the rules, but simply remand the matter to the Commission fo 4. Vacate the Commission's order in its entirety but stay our order for a fixed period 5. Vacate everything in the Commission's order except the repeal of the 1970 rules, but The parties appear to agree that which form of order we adopt is a matter within our di pp. D.C. 166, 920 F.2d 960, 966-67 (D.C. Cir. 1990). Option 1 is out of the question. Not only does no one defend the old rules, but the Fox old rules. Even the coalition of outside producers and independent stations that is the m e Commission's order in its entirety and thus restoring the old rules. Option 2 is also unreasonable. It would leave the networks free of any restrictions at in support of 2 that, given current conditions in the industry, no such justification is to place restrictions on competition by networks. Its power to do so is, in fact, unquesti considered so slight that the proper interim regime would be one without any restrictions .2d 790, 796-97 (D.C. Cir. 1984). Option 3--remanding the case with no limitation of time--is unacceptable because of the ted, Tentative Decision and Request for Further Comments in Docket 82-345, 94 F.C.C.2d 101 and distribution restrictions (if any) to place on the networks [**5] for more than tw e found to be unlawful. In these circumstances our only defensible choice is between options 4 and 5, which [ ld spring into effect; under 5, that there would be no rules. The second is preferable. We es (that is, the rules adopted in 1991), it is unable to come up with anything. Such a def The remaining question is the precise length of the deadline. In Northern Pipeline Cons statute, pending which the existing [**6] bankruptcy courts, which the Supreme Court ha a slightly longer (120-day) stay of a judgment invalidating an administrative regulation. he deadline by taking 30 days to rewrite the rules, giving the interested public 45 days t e they became effective (as the statute requires--though the period can be shortened "for en ruminating about a problem for two decades it can act swiftly to deal with the conseque d a new set of rules but not be able to complete its work, it can always ask us for a stay ithout restrictions. The order issued by this court on November 5 is modified to invalidate the Commission's asking for rehearing of either the court's original decision or today's modified order sha