SYRACUSE PEACE COUNCIL, et al., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION and the UNITED STATES OF AMERICA, RESPONDENTS MEREDITH CORPORATION, CBS, INC., RADIO-TELEVISION NEW DIRECTORS ASSOCIATION, AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, DEMOCRATIC NATIONAL COMMITTEE, NATIONAL BROADCASTING CO., INTERVENORS; HENRY GELLER and DONNA LAMPERT, PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION and the UNITED STATES OF AMERICA, RESPONDENTS MEREDITH CORPORATION, NATIONAL ASSOCIATION OF BROADCASTERS, NATIONAL BROADCASTING COMPANY, INC., CBS, INC., RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION, AMERICAN NEWSPAPER PUBLISHERS ASSOCIATION, FREEDOM OF EXPRESSION FOUNDATION, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, INTERVENORS Nos. 87-1516, 87-1544 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 867 F.2d 654; 1989 U.S. App. LEXIS 1475; 65 Rad. Reg. 2d (P & F) 175; 16 Media L. Rep. 1225 September 13, 1988, Argued February 10, 1989, Decided SUBSEQUENT HISTORY: [**1] As Amended, February 10, 1989. PRIOR HISTORY: Petitions for Review of an Order of the Federal Communications Commission. COUNSEL: Henry Geller, Pro Se, with whom Donna Lampert, Pro Se, was on the brief for Petit Andrew Jay Schwartzman, with whom David W. Danner was on the brief, for Petitioner Syra Angela J. Campbell, Yolanda Gallegos and Robert T. Perry, were on the brief for Petitio Christ. Diane S. Killory, General Counsel, Federal Communications Commission, with whom Daniel Sue Ann Preskill, Richard J. Bozzelli, Counsel, Federal Communications Commission, and Jo e for Respondents. Timothy [**2] B. Dyk, with whom Adrienne Masters, J. Laurent Scharff, W. Terry Magui John B. Wyss, Richard E. Wiley and William B. Baker, also entered appearances for Interve Floyd Abrams, with whom Dean Ringel, Michael H. Bader, John M. Pelkey, Melodie A. Virtu Howard Monderer, Molly Pauker and Corydon B. Dunham, were on the brief for Intervenor N Charles D. Ferris, Bruce D. Sokler and James A. Kirkland, were on the brief for Interve Phillip Heymann, Yoland Gallegos, Don Simon and Mark E. Chopko, were on the brief for A Philip H. Hecht, was on the brief for Amicus Curiae, People for the American Way, urgin David W. Danner, entered an appearance for [**3] Amicus Curiae, Safe Energy Communi JUDGES: Wald, Chief Judge, and Starr and Williams, Circuit Judges. Opinion for the Court OPINIONBY: WILLIAMS OPINION: [*655] WILLIAMS, Circuit Judge: Under the "fairness doctrine," the Federal Communications Commission has, as its 1985 F the licensees" and (2) "to provide a reasonable opportunity for the presentation of contr complaint against Meredith Corporation, licensee of station WTVH in Syracuse, New York, t Meredith. Although the Commission somewhat entangled its public interest [**4] and const that determination without reaching the constitutional issue. I. In the summer of 1982 Meredith ran a series of advertisements over WTVH arguing that th s conflicting perspectives on the plant and had thereby violated the second of the fairnes In its initial decision the Commission agreed with Syracuse that Meredith had failed to cil, 99 F.C.C.2d 1389, 1401 (1984). Meredith filed a petition for reconsideration in which it argued that the fairness doct at 261-91. Before ruling on Meredith's petition, [**5] the Commission completed its 198 l Fairness Obligations of Broadcast Licensees, 102 F.C.C.2d 143 (1985). On the issue of whether the doctrine continued to promote the public interest, the 1985 ee also id. at 147 (similar); id. at 246 (language identical to that quoted). In reaching any need for the doctrine, that the doctrine often worked to dissuade broadcasters from pr nity for incumbents to abuse it for partisan purposes. Despite all this, it declined to el The 1985 Report also raised serious doubts about the continuing constitutionality of th e Commission refused to make a constitutional ruling. After issuing the 1985 Report, the FCC in due course considered Meredith's petition for n the theory that that issue should be left to Congress and the courts. It invoked its 198 On appeal, this court reversed and remanded the case to the Commission. Meredith Corp. ison, 415 U.S. 361, 368, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974), but said that an agency cision found that the fairness doctrine was not mandated by statute. Telecommunications Re ed, 482 U.S. 919, 107 S. Ct. 3196, 96 L. Ed. 2d 684 (1987). See 809 F.2d at 873 n. 11. Thu he doctrine was contrary to the public interest. Id. at 874. We explicitly noted that the e Commission had "largely undermined the legitimacy of its own rule" and "eviscerate[d] th On remand, the Commission expanded the scope of the Meredith proceeding by soliciting c forcement of the doctrine is contrary to the public interest." Syracuse Peace Council, [* 5 (1988), the Commission ruled in favor of Meredith. The FCC relied heavily on the conclusions drawn in the 1985 Fairness Report, and in fac rness Report's conclusions, the Commission declared that "the fairness doctrine chills spe as set forth in Red Lion [Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. II. At no time during the long and intricate proceedings in this case has any party suggest ated. n1 [**9] Accordingly, the Commission has the authority to reject the doctrine if - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Thus the claim of some parties that the Communications Act incorporates a public tru - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission has slightly complicated the issue, however, by asserting that "the poli ing the constitutional issue. But it is an elementary canon that American courts are not to "pass upon a constitution 48, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring). We applied the maxim i two grounds for a decision, a court may sustain it if one is valid and if the agency would D.C. 74, 762 F.2d 1053, 1060 n. 8 (D.C.Cir. 1985); Communication Workers of America v. NL 4)). Thus, if we are persuaded that the Commission would have found that the fairness doctri t, as we explain in part III, we have no doubt that even in the absence of constitutional n part V to issues relating to the Commission's withdrawal of the doctrine's "first prong, III. It is quite true that the Commission at the outset of its opinion here asserted that th of its constitutional one, id. at 5057 ("the fairness doctrine contravenes the First Amen ee Intervenor Democratic National Committee Reply Brief at 4-6. But the Commission's reasoning behind its "intertwining" assertion belies any inference ponent of the public interest standard" and that "the promotion of First Amendment values elevant to both constitutional and policy issues, they seem unexceptionable. [**12] Su e aggregate); of minimizing any chilling effect that may flow from governmental requiremen ls sit in judgment on editorial decisions. But it plainly does not follow from this congru Quite the reverse. Indeed, the Commission's third argument for "intertwining," namely t making a public interest judgment under the Communications Act, n2 the Commission is exer ers Guild, 450 U.S. 582, 596, 67 L. Ed. 2d 521, 101 S. Ct. 1266 (1981). Its role [**13] ommittee, 412 U.S. 94, 102, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973) ("In evaluating the Fi say we 'defer' to the judgment of the Congress and the Commission on a constitutional que ther branches of Government have addressed the same problem"). As Judge Starr suggests, th onstitutional decision on the doctrine necessarily melds raw facts with First Amendment va - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 The Commission imposes a continuing obligation on licensees to operate "in the publi Court has made clear that the Commission's authority to require continued operation "in th r conditions that would justify denial of an initial license, coupled with the statutory r - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**14] Thus, under the legal framework within which the Commission and the courts operate, the Of course, if the Commission had written its opinion in purely constitutional terms, we mont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1 mpose upon the agency its own notion of which procedures are 'best,'" id. at 549, we do no interest. If courts may not resist such maneuvers, then an agency (unlike Congress) may pu ), could we do so?" Happily the Commission's opinion is not written in exclusively constitutional terms. Fi cluding that the doctrine violated the Constitution even under Red Lion's view of the perm In sum, the fairness doctrine in operation disserves both the public's right to diverse ary government intervention into the editorial processes of broadcast journalists. 2 F.C.C.Rcd. at 5052. It is hard to imagine any mental gymnastics by which the Commission, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 In his separate opinion, Judge Starr suggests at slip op. at 9 that the Commission h hat it is) does not seem to us to automatically transform a public interest decision based - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**16] In addition, the Commission here adopted the findings of its 1985 Report wholesale. 2 F primarily on the Commission's view that the doctrine was detrimental to the public interes On the basis of the voluminous factual record compiled in this proceeding, our experience ublic interest. 102 F.C.C.2d at 147; see also id. at 148, 246. As we observed in Meredith, the 1985 Report re confirms our conclusion that the Commission would have made the same public interest fi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Even if all parties chose to frame the issue as exclusively constitutional, see sepa In any event, while it is true that most parties here seek either to condemn or to vindic and capricious." See its opening brief at 2, 10, 11, 40, 46. Moreover, in extended passag g outlets, without confining their analysis to constitutional (as opposed to policy) crite ). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**17] [*660] IV. The FCC's decision that the fairness doctrine no longer serves the public interest is a m the record or briefs, is there any question that discouraging any coverage at all, havin ual. The Commission's problem was to make predictive and normative judgments about the ten ts outweighed good. In this situation, we owe great deference to the Commission's judgment. As the Supreme Our opinions have repeatedly emphasized that the Commission's judgment regarding how the p ational weighing of competing policies, [**18] is not to be set aside by the Court of FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 67 L. Ed. 2d 521, 101 S. Ct. 1266 (1981) ( The Commission's factual judgments here are almost entirely predictive -- statements ab e conclusions is not required since 'a forecast of the direction in which the future publi mitted). Although we do not suppose for a minute that experience without the fairness doct "legislative" as opposed to "adjudicative" facts, "a month of experience will [**19] be 75, 87 S. Ct. 73 (1966). Of course, an agency can act arbitrarily or capriciously in the exercise of a policy ju ssion failed to consider the whole record or to consider alternative solutions adequately, Before addressing those specific attacks, we must describe two core findings of the 198 the need for the doctrine -- on which the Commission relied heavily in the present decisio fear of denial of license renewal [*661] due to fairness doctrine violations, the cost ng from even a frivolous fairness challenge. While the FCC recognized that to a degree the encouraged to air only the minimal amount of controversial issue programming sufficient to comply wit the second prong of the doctrine while remaining in compliance with the strict letter of sue programming. 102 F.C.C.2d at 161. The 1985 Fairness Report also noted that paradoxically the chilling effect often fell o " opinions, the FCC claimed that in assessing fairness doctrine compliance, the Commission the potential "to interject the government, even unintentionally, into the position of fa In assessing whether any need for the doctrine persisted, the 1985 Report found a drama oss American society. The FCC found that by 1984 96% of television households received fiv TV households in 1972 to 64% in 1984. Id. Of course some signals may for one reason or ano hare [**22] down from 90% in 1982 to 76% in 1984. Id. at 206. The Commission also found significant growth in radio outlets since the 1974 Fairness R that "there has also been a fundamental change in the structure of the radio market. Once munities as well as larger urban areas; "the number of radio voices available in each loca Looking at substitute electronic media such as low power television, video cassette rec the true development of broadcast media available to the viewing public. Id. at 208-17. Th to [**23] foster. We now turn to the specific objections to the Commission's conclusions. Insufficiency o Although there is some criticism of the 1985 Report's findings as to the growth of acce sources. But the Commission has included the figures on changes in audience shares, clearl at the expense of local data. Yet in looking at the Commission's finding concerning the n en unaffected by the growth the Commission has recounted. Accordingly, we view these attac Several parties, however, have attacked the evidence of broadcaster chill and what they 463 U.S. 29, 46-51, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). The United Church of Christ /Telecommunications Research and Action Center ("MAP/TRAC"). In its present decision the Commission said that the record compiled for the 1985 Repor at numerically the main body of evidence comes from the comments submitted to the Commissi s. n5 It is clear, however, that the FCC also relied on important additional sources, incl t it would demand free response time from stations that accepted advertising on a specific - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 The exact number of examples in the NAB study is subject to dispute, as the BCFM Com y actually referred to the same underlying event. BCFM asserted that, when these discrepan - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The 1985 Report responded substantially to the BCFM and MAP/TRAC attacks made on the NA ing broadcasters were "self-interested." Id. at 180-82. The FCC noted that because "chill" ersons who, by necessity, have to second-guess the broadcasters' state of mind." Id. at 18 irness doctrine attacks. Id. Finally, the Commission argued that the critics' argument pro ck probity; indeed, were we to adopt such a rule it would be virtually impossible for us t s ed. 1827) ("Any interest, interest of any sort and quantity, sufficient to produce menda rev. 1979)). We are persuaded that the self-interested character of the broadcasters' evid Second, the FCC responded to BCFM's and MAP/TRAC's allegations that many of the NAB sam e. Id. at 186-87. The Commission observed that evidence of chilling from those rules would for obligations, the trigger conduct will be more costly and those subject to the rule wi described in this section involves an application of the personal attack rule or the poli . Third, the Commission made specific rebuttals of some of BCFM's and MAP/TRAC's criticis ew of the critics the station's ordinary news coverage would have satisfied its obligation t. The fairness doctrine applies to ordinary mortals who adjust their affairs on the basis ysis, or by greater brilliance, the deterred party might have come out the other way. n7 T - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Id. at 172-73 nn. 104-07; id. at 174 n. 109. n7 It might support an alternative doctrine with more clearly chiselled edges, but no p , prepared in 1981 but never issued, and suggests that its issuance could have been "highl we think it far from self-evident that its issuance would have drastically reduced the pe grasped its meaning with perfect accuracy. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**29] Fourth, in the 1985 fairness proceeding, BCFM had discounted 33 of the broadcasters' "e ) in fact evidencing enhancement of information available to the public (six cases); (3) s UCC appears to be correct in saying that the FCC did not respond directly to these comm refer to discrete episodes of chilling, we would be troubled by its nonresponse. In fact, ffect. For example, while BCFM lists Example 7 in its first category -- mere expressions o by the general manager of two stations in Durango, Colorado to the effect that the pressur onse to the doctrine; the Commission expressly invoked the evidence, using NAB's "example" mples" were not all episodes. Moreover, [*664] as we look at the NAB "examples" and th Finally, UCC attacks any reliance on the NAB study on the ground that it was "not based ut in the absence of either any statistically valid evidence on the other side, or even a Editorial decisions are obviously driven by many factors. Isolation of causes in any scie not compare stations' practices under the rule with their conduct free of the rule. (Comp We note that when speaking of a state-enforced "right-of-reply" applicable to newspaper Co. v. Tornillo, 418 U.S. 241, 257, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974) (emphasis add assumption that California's "compelled access" to public utility billing envelopes "pena and that Red Lion applies different constitutional standards to the broadcast media. But ry startling about an inference that the rule will often deter speech. We think the Commis Failure to Consider Evidence of Doctrine's Beneficent Effects UCC also charges that the Commission ignored or discounted evidence of the benefits der the fairness doctrine rarely (or never) increased diversity of expression. Indeed, the Com 5050, a finding clearly consistent with a belief that the doctrine frequently produced its what it viewed as novel or surprising. To say that a rule has often produced its intended s-dog class, but closer. In one instance, for example, UCC claims that the FCC twisted some comments which illus It points to the Commission's treatment of evidence submitted by the Public Media Center d lso had invited stations to refuse to sell time and thereby to avoid any fairness problem a complainant can successfully pressure broadcasters into refusing to sell advertising on to the doctrine's positive effects. n8 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 UCC claims that the Commission "completely ignored" comments submitted by the Safe E ouncil's comments, 2 F.C.C.Rcd. at 5066 n. 139, stating that in light of the evidence gath " - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - We must confess, however, some perplexity at the Commission's insistence that the doctr issue not only in policy terms but also in constitutional ones, and it expressly character t the fairness and kindred doctrines had "the net effects of reducing rather than enhancin "The fairness doctrine in the past has had no such overall effect." Id. The Court did not We are frankly uncertain how anyone could be sure either way. The definitional problems ck could it balance quality increments due to broadcasters' responding as intended against ad the scales differently. Despite this confusion, we believe we can "discern the path" followed by the Commission deterrent effects (and, as we have said, we believe that finding was permissible). It als ks of partisan abuse, were anathema. See 102 F.C.C. 2d at 190-94; 2 F.C.C.Rcd. at 5050-51, Miami-Herald Publishing Co. v. Tornillo and Pacific Gas & Elec. Co. v. Public Utilities Co plainly discounted the value of the latter as "governmentally-coerced speech." Id. Accord ourt's finding of similar value judgments implicit in the First Amendment [**37] as app erms of an assessment of the "net effect" of the doctrine. Failure to Consider Alternatives Petitioners Geller and Lampert contest the FCC's refusal to adopt their proposed altern lice standard for this review. The FCC has twice declined to return to its pre-1962 practice of resolving fairness doc v. FCC, 186 U.S. App. D.C. 102, 567 F.2d 1095 (D.C.Cir. 1977), cert. denied, 436 U.S. 926 although the renewal-only proposals might appear, at first glance, to lessen the degree of stpone the eventuality of extensive governmental involvement at license renewal time. Id. at 5278. The Commission noted several specific defects that it perceived in the renewa currently in effect, as loss of license or suspension would be seen as more likely. Id. Se elieved this could make broadcasters more conservative in coverage of controversial issues Geller and Lampert coupled their renewal-only suggestion with the idea that review woul gestion that the Commission continue to act case-by-case but under a malice standard. As t ould be the increased chill from postponement to renewal. 1987 Alternatives Report, 2 F.C. e the chilling effect when compared with the Commission's practice of deferring to broadca Although its discussion of the subject is more than usually framed in constitutional terms That judgment seems well within its discretion, especially as the proposals would also ap Departure from 1985 Decision Some parties complain that the present decision represents an unexplained abandonment o S. 29, 41-44, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983) (agency changing course required to The 1985 Fairness Report had found that the doctrine disserved the public interest, but intense congressional interest then brewing over the fairness doctrine, id. at 246-47. Th to mandate the fairness doctrine clearly diminished the second. Though we find no explicit pure waste. See Bowman Transportation, 419 U.S. at 286-89. V. Several parties attack the Commission's repeal of the so-called "first prong" [**41] First, they contend that they were not adequately notified of the Commission's intent to r Notice We must first explain the relevance of notice. The decision under review has been, up t doctrine under which Meredith had been sanctioned did not serve the public interest (and The Commission's rejection of the first prong of the fairness doctrine, however, was su le point was that its coverage was enough to trigger a duty under the second prong. Accord viewable. See Office of the Consumers' Counsel v. FERC, 257 U.S. App. D.C. 230, 808 F.2d 1 If, however, the Commission complied with the procedural requirements for an informal r s of America v. Secretary of the Navy, 269 U.S. App. D.C. 35, 843 F.2d 528, 535-39 (D.C.Ci ission purported to dispatch the first prong of the doctrine definitively, and the only pr It seems to us clear that the relevant notices reasonably warned interested parties tha Our purpose in instituting this inquiry is to undertake the [**43] most searching and c facets of the fairness doctrine . . . Id. at 20318 (emphasis added). On remand from our decision in Meredith the Commission issued a notice telling interest eping terms used in the Notice of Inquiry, it spoke of the fairness doctrine generally and the Commission hereby requests comment on whether, in light of the 1985 Fairness Report, e dinarily seek public comment in an adjudicatory proceeding, because of the general importa Order Requesting Comment, [**44] FCC 87-33 (Jan. 23, 1987), 52 Fed. Reg. 2805-01 (Jan. We believe these provided adequate notice that both aspects were under review. Whether Rescission of the First Prong Was Arbitrary and Capricious In explaining its rejection of the first prong, the Commission has argued that the doct first. 2 F.C.C.Rcd. at 5048. We regard this as a statement of a conclusion, not a reason, eld part of a statute unconstitutional and must then consider whether to sever other parts ty decision a court essentially inquires what the legislature would have done had it been anted. Moreover, even a court making a severability decision tries to explain why it belie L. Ed. 2d 583 (1986). In other portions of its decision, however, the Commission went on to supply reasons fo if it had recognized that its "unified doctrine" statement was a mere conclusion. First, removal of the fairness doctrine's second requirement would reduce the need for ng naturally, without the need for continued enforcement of the first prong." 3 F.C.C.Rcd. tter removed much of the reason for the former. 3 F.C.C.Rcd. at 2038. [**46] Second, it viewed the coverage requirement as in significant part duplicative of its in t the two programming requirements were not identical, it saw sufficient similarity to bel - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 The Office of Communication of United Church of Christ v. FCC, 228 U.S. App. D.C. 8, 707 F.2d ction for Children's Television v. FCC, 261 U.S. App. D.C. 253, 821 F.2d 741 (D.C.Cir. 198 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Third, in its discussion of the fairness doctrine as a whole the Commission relied heav 26. That judgment of course applies to the editorial decisions required for enforcement of jective matters as the 'controversiality' and 'public importance' of a particular issue. . unity issues requirement: While enforcement of the doctrine's first prong requires the government to judge, on a cas bligation requires a different level of government intervention in determining, at renewal 3 F.C.C.Rcd. at 2042 n. 67 (emphasis in [**48] original). Compare separate opinion of We believe that these reasons, particularly in light of the Commission's background fin CONCLUSION We conclude that the FCC's decision that the fairness doctrine no longer served the pub in the absence of its belief that the doctrine was no longer constitutional. Accordingly w CONCURBY: STARR; WALD (In Part) CONCUR: [*673contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; howev STARR, Circuit Judge, concurring: As my colleagues faithfully recount, this case was launched with the FCC's order holdin panel of this court held that the FCC had erroneously failed to consider Meredith's conte could not, consistent with its duty to uphold the Constitution, enforce the doctrine witho urview since, under Telecommunications Research and Action Center v. FCC, 255 U.S. App. D. The upshot was that the Meredith panel remanded the case to the Commission with express eredith Corp. v. FCC, 809 F.2d at 874. Following that remand, the FCC vacated its previous interest." 2 FCC Rcd Vol. 17, 5043, 5057 (1987) ("Order" hereinafter). Now the case makes its return visit. After elaborate briefing on the constitutional iss properly proceed by, in effect, blue penciling the Commission's language purporting to bas oid deciding constitutional issues where nonconstitutional grounds of decision are availab e here is very much in doubt. For one thing, we have no statute before us, but only an age g with the agency [**51] expressly relying upon constitutional considerations and rende Ed. 2d 141, 94 S. Ct. 2315 (1974); Gulf States Utils. Co. v. FPC, 411 U.S. 747, 764, 93 S ncy action on non-constitutional grounds if the record reveals that the agency in fact bas After reflecting on the effect of Ashwander and Chenery principles, I cannot, in consci y read, yield the conclusion that the agency has based the specific decision before us ind I do not, that the Commission erred [**52] in even considering that issue); in short, th To state briefly the pertinent background: On remand from this court, the Commission ba Report. As the Court's opinion today rightly emphasizes, the 1985 Report reflected an exte The [Meredith] court ordered the Commission to consider Meredith's constitutional argument and constitutional considerations in this matter are inextricably intertwined and that it is appropriate and necessary to address the policy [**53] and constitutional issues to Order at 5046 (emphasis added). n1 The agency's language can scarcely be clearer; in respo unds. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 The FCC could not have been more explicit in rejecting the validity of a decision ba A meaningful assessment of the propriety of the doctrine, therefore, necessarily includes Order at 5046. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - With that, the Commission then proceeded to engage in an elaborate, First Amendment ana der is rooted firmly in Red Lion. Wherever one looks in the opinion, [**54] one sees t grounded entirely on the overarching demands of the First Amendment. What the FCC itself c mendment mode of analysis, demonstrates beyond peradventure that the agency was examining - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Although I rely (necessarily) on the record for this conclusion, I cannot resist not st Deregulation: The Reagan Years and Beyond, 40 Ad. L. Rev. 345 (1988). For example, form bold action to abolish as unconstitutional the Fairness Doctrine." Id. at 350. FCC Chairma d test we found [the fairness doctrine] to be unconstitutional." Id. at 356. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**55] [*675] It therefore cannot successfully be maintained that the Order is based, either Report, in which the Commission concluded that the fairness doctrine violated the public needed to do was dust off and press into service the 1985 Report. Indeed, there is not the of the Meredith remand, to tangle with Red Lion itself. There is no escaping this hard, co eyond the less heroic, public-interest reach of the 1985 Report. Now this should come as no surprise to anyone in this courthouse. At the time of the 19 estraint was that it had not yet been determined whether the fairness doctrine was indeed t a shift in the FCC's substantive position, but a sea change in the Commission's authorit - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 In 1987, the FCC so explained the different tone of the 1985 Report: We believe, however, as we reiterate today, that our analysis of the fairness doctrine in ve to consider the constitutional issues, we believe it is now incumbent upon us to consid Order at 5062 n. 62 (citations omitted). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**57] Without fully taking account of the unique legal context surrounding the 1985 Report, t st decision. The court ferrets out and features a footnote buried deep in the Order -- foo We hereby incorporate the findings of the 1985 Fairness Report into this record and, as mo Order at 5066 n. 120. The footnote, in turn, references the following passage: We shall thus consider the constitutionality of the fairness doctrine from the perspective accordance with existing Supreme Court precedent, whether the enforcement of the fairness he editorial discretion of broadcast journalists and involves unnecessary government inter Id. at 5049. This passage, appearing as it does in a portion of the Order entitled "Constitutional C ot have been more explicit in utilizing the Order only for its factual determinations, in ng six determinations of the 1985 Report, all of which go to the doctrine's constitutional - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 It bears noting that, later in its opinion, the court candidly recognizes that the u cannot be read as indiscriminately incorporating the 1985 Report's conclusion. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**59] In short, the record establishes beyond cavil (1) that the FCC based its Order on the p llows from Chenery that this court is wanting in authority to wave all that pesky constitu ery bravado, that Red Lion is still secure in its pre-Meredith cage. Red Lion is now out o For its part, the court airily treats this as just another case coming out of yet anoth ministrative law no-no. Chenery is, after all, not a prudential doctrine designed to facil 60] @ 706 (1985): If an order is valid only as a determination of policy or judgment which the agency alone han reversing its orders, an appellate court cannot intrude upon the domain which Congress SEC v. Chenery Corp., 318 U.S. at 88. Where, as here, Congress has committed the determination of the public interest to the might have been made and considerations disclosed which would justify its order as an app S. Ct. 2360, 2368, 96 L. Ed. 2d 222 (1987) (court "may not affirm on a basis containing an d remove the discretionary judgment from the agency to the court"). In sum, the public interest standard should not be reified as a brooding omnipresence t an independent ground of decision. Where, as here, the agency's policy judgment is wholly , conflates the court's function with the agency's prerogative of giving reasoned content, ate. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 The court's position is essentially that, because public interest and First Amendmen that the Order does not contain an "in the alternative" determination that the fairness do a fortiori it disserves the public interest. It is in this sense that the public interest - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**62] The court's stated basis for avoiding Chenery's dictates, it appears, is that we can co ave no choice but to address the constitutional issue or -- more likely -- to remand to th s driven by First Amendment values (when other considerations, e.g., broad notions of broa o the fostering of First Amendment values. See, e.g., Fairness Report in Docket No. 19260, on other grounds, 59 App. D.C. 197, 37 F.2d 993 (D.C.Cir.), cert. denied, 281 U.S. 706, 5 8 U.S. 364, 380, 82 L. Ed. 2d 278, 104 S. Ct. 3106 (1984) (the thrust of broadcast regulat adcasting, 436 U.S. 775, 795, 56 L. Ed. 2d 697, 98 S. Ct. 2096 (1978) ("the public interes 72, 93 S. Ct. 2080 (1973) (same); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375, 23 ressly invited the FCC to examine whether the constitutional underpinnings of the doctrine ionally-charged history, it is hardly unreasonable for the FCC to view the public interest - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 As the fairness doctrine itself is not required by statute, Telecommunications Resea subject only to limited review. Specifically, the FCC's position as to the public interest must not be "so implausible tha L. Ed. 2d 443, 103 S. Ct. 2856 (1983), and must evince "a rational connection between the - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**64] Nor is the resulting public interest-First Amendment linkage surprising in view of our thing novel about the FCC's determination that, for purposes of evaluating the fairness do promote non-First Amendment goals (i.e., equality values inherent in mandated access provi iscretion for the Commission to decline to craft such a regime. The foregoing satisfies me that a remand to delink that which the agency has viewed as determination that the public interest is inextricably related to First Amendment [*678 . The fact that the court, informed by Ashwander principles, might prefer to review a deci .S. at 94; Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549, 55 L. Ed. 2d 460 Remand would also be inappropriate because there is not the slightest indication that, 59, 766-67, 22 L. Ed. 2d 709, 89 S. Ct. 1426 n. 6 (1969) ("Chenery does not require that w orization that the Meredith court gave to an agency decision resting on constitutional gro uld, I for one see no need whatever to take that step. That brings me to this: the court's discussion of remand, with all respect, misses the undoubtedly reject the fairness doctrine on policy grounds. Maj. Op. at 659. As previously terest determination. n7 This sort of judicial compulsion of an independent agency is not . 833, 841-42, 92 L. Ed. 2d 675, 106 S. Ct. 3245 (1985) (Ashwander requires that the non-c - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The cases cited by the majority in its treatment of remand are, in this respect, ina nvolved an agency decision that, because of inadequate or erroneous findings, could not be hat was compelled by the evidentiary record. This approach, however, is not justified wher 7th Cir. 1986), the agency was affirmed based on a ground of decision which the agency had - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**67] Yet, when the court attempts to bypass Chenery and support its conclusion that the Comm und exists for the majority to plant the Ashwander flag. For example, the court cites the that "it is hard to imagine any mental gymnastics by which the Commission, having deliver nastics could reasonably characterize as anything but constitutional analysis, renders pro its Order and these proceedings. But that does not render the Order before us any less a [*679] The court's "perplexity," provoked by the Commission's central conclusion (tha nature of the Order. Maj. Op. at 665. The court finds the Commission's conclusion of "net o the Supreme Court's finding of similar value judgments implicit in the First Amendment a to term that reasoning "a matter of policy," id., and "an effort to resolve the issue not t the Order only by relying upon constitutional reasoning. Deeming that reasoning "policy" In sum, as the FCC's decision is adequate in all respects and singularly unlikely to be my colleagues, but pressed exclusively by all parties before this court, n8 that I must no - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 The briefs uniformly speak of the FCC's "constitutional" decision under Red Lion. Se ; Brief of Common Cause at 20; Brief of Democratic National Committee at 6. The court find . at 659-80 n. 4. Yet, the parties universally relate these findings to the Red Lion frame - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**70] II A The question before us -- that is, the legality of the FCC's action -- is somewhat of a two distinct tasks. First, the court is called upon to scrutinize the Commission's interp s distinguished from its application of those principles to the facts. Our scope of review v. 1, 6 (1983) (criticizing the view that Marbury supports independent review of agency st gs (1) that an "explosion" in the number and type of media outlets has occurred; (2) that ly impinges upon broadcasters' editorial discretion. The parties have assumed that the Commission's findings of fact are subject to review u actual determinations are intimately connected with the evaluation of constitutionality un of U.S., Inc., 466 U.S. 485, 506-510, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984) (and cases standing the presence of important First Amendment questions. Although the FCC's factual ciary seems inappropriate for several reasons. First, the FCC's Order does not deny a constitutional [**72] claim. No one has urged dment requires elimination of the fairness doctrine. That point is of pivotal importance b titutional claim. See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284, 28 L. Ed. 2d 45, 91 S. livan, 376 U.S. 254, 285, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) (independent review funct This conclusion flows from the principle that independent review, where applicable, der Thus, where no constitutional rights are threatened by the findings at issue, the [**73] Ed. 1108, 47 S. Ct. 655 (1927)). Indeed, in the present circumstances (i.e., an agency de Independent review of the Commission's findings also seems inappropriate because we hav ssed of substantial expertise with respect to the impact of the fairness doctrine on the c rt has accorded weight to factual findings underlying an FCC decision that broadcast regul . The present case is thus readily distinguishable from instances in which the Supreme Cou . 2607 (1973) (independent review of jury determination that a specific publication or fil d the Commission's ultimate conclusions of fact with respect to the fairness doctrine's ch B Under these principles, the Commission's Order should be upheld. It is based on reasona ould be evident that our evaluation of the Commission's factual determinations partakes mo ed the Olympian force of a "true" constitutional decision, see Cooper v. Aaron, 358 U.S. 1 [*681] Vindication of the constitutional reasoning in the Order thus would not consti n to eliminate the fairness doctrine correctly interprets Red Lion and is based, as the co establishing the fairness doctrine in its present (or some modified) form. The fate of any (e.g., Red Lion); but it would also be affected by the scope of review applied to the fact ual findings underlying the denial of a First Amendment challenge would be subject to inde constitutional government action (i.e., a "new" or "resurrected" fairness doctrine) repres - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 This point undermines the court's conclusion that, under Ashwander v. TVA, 297 U.S. nder serves to prevent the possibility of judicial invalidation, on constitutional grounds egulate) because of perceived constitutional constraints, a judicial decision to uphold or istrative law-type scrutiny over the FCC's factual conclusions, there is no need to get al - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**77] I should hasten to add that this burden, while substantial, appears to be by no means h of the fairness doctrine is linked in part to technological developments (and behavior) in tle experience in a sans-fairness doctrine regulatory environment. It remains to be seen w 412 U.S. at 102 ("the broadcast industry is dynamic in terms of technological change; . . In short, it is not at all inconceivable that detailed reconsideration by a future FCC ns focus precisely on problem of corruption [**78] and preserve substantial opportuniti not "narrowly tailored" because it "raises too many serious questions that Congress faile dgment and absence of contrary evidence); could persuade a future court that, notwithstand strictures. C As to the constitutional principles applicable to this case, the parties are congeniall y if "narrowly tailored to further a substantial government interest, such as ensuring ade at this standard affords broadcasters somewhat less First Amendment protection than that e of the print media must be narrowly tailored to serve a compelling government interest). n - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Although the FCC sets forth the view (in other portions of the Order) that Red Lion v. FCC, 262 U.S. App. D.C. 310, 824 F.2d 37 (D.C.Cir. 1987), cert. denied, 444 U.S. 1013, ng that the constitutional analysis in this opinion is grounded squarely (and, hopefully, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - But there consensus abruptly stops. Although the parties agree that Red Lion is king, t ether enforcement of the fairness doctrine (1) chills speech and results in the net reduction of the presentation of controversial is (2) excessively infringes on the editorial discretion of broadcast journalists and involve Order at 5049. The FCC believes that regulatory intervention through the vehicle of the fa access to diverse viewpoints can be achieved without the fairness doctrine, then the doctr onstitutional if either of these tests (net reduction or not "narrowly tailored") is satis Petitioners' most vigorous attack is aimed at the [**81] proposition that the numero levant concern is the number of media outlets relative to the demand of broadcasters (expr the potential for interference occasioned by the fact that the broadcast spectrum can phy m whereby regulatory authority assures to broadcasters exclusive use of their portions of rmissible, petitioners maintain, as an adjunct to the licensing system. To recap: as petitioners see it, the fairness doctrine is constitutionally permissible . The FCC, in contrast, asserts that the constitutionality of the doctrine depends on nume There is thus a rather pivotal difference in the perspectives vying for judicial approb ure, language in Red Lion with respect to the [*683] scarcity of the broadcast spectrum necessary (rather than sufficient) condition of the fairness doctrine's legitimacy. That .S. at 377 ("the fundamental distinguishing characteristic of the new medium of broadcasti d out among applicants.'") citing Columbia Broadcasting Co. v. Dem. Nat'l Comm., 412 U.S. spectrum scarcity, without more, does not necessarily justify regulatory schemes which int ion furthered substantial First Amendment interests, see Red Lion, 395 U.S. at 396; Columb t 127-32, where the Court held that the FCC need not require licensees to accept all paid Supreme Court's choice of a standard for evaluating broadcast regulation [**84] with th Petitioners' reliance on the concept of allocational scarcity is logically flawed as we which 'enough' diversity is present. . . . Only when supply and demand [for licenses] reac focuses with undue exclusivity on the market for broadcast licenses, whereas the central c vidence that the mere presence of excluded broadcasters is to be regarded as dispositive o nse applicants, may express their viewpoints [**85] on controversial issues in any numb arketplace of ideas. Indeed, petitioners' argument ultimately flies in the teeth of Red Li - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 This defect in petitioners' constitutional argument does not, of course, relieve th ssed infra in section D of the opinion. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In contrast, the FCC has correctly discerned that, under Red Lion, the constitutionalit he right of the public to receive [**86] suitable access to social, political, esthetic missible where, in the absence of regulation, such voices would "by necessity be barred fr The governing constitutional doctrine therefore recognizes that the communications mark at 397 (fairness doctrine constitutional in light of the fact that the increased carrying gnized that, where the communications marketplace itself provides a plethora of voices, th tory schemes that tread unnecessarily on the editorial discretion of broadcasters contrave ercise 'the widest journalistic freedom consistent with its public [duties].") quoting Col The Commission is also correct in interpreting the Supreme Court's holdings as renderin urt has expressly indicated that were it to be shown by the Commission that the fairness doctrine "has the net effect of re FCC v. League of Women Voters, 468 U.S. at 379 n. 12 (citations omitted). Obviously, as th eases to promote and secure bedrock constitutional interests. D As the court's opinion ably [**88] demonstrates, the Commission's factual determinat verage of controversial issues, find reasonable support in the record. Rather than rehears Significantly, petitioners do not dispute that, since the late '60s when Red Lion was h nearly 96 percent of U.S. households with television received five or more signals. Nearl ent since the first year of the Nixon Administration, when Red Lion was first introduced t ns in the largest [**89] markets. Brief of FCC at 25. As commuters and Walkman aficiona The Commission also took account of the growth of various non-broadcast media, the most d town say that even District of Columbia residents are beginning to enjoy access to this e subscribers receive more than 12 channels; some cable systems have the capacity to offer Petitioners are, nonetheless, unconvinced by all this. They assert that these data fail ay". Order at 5051, quoting 1985 Fairness Report, 102 FCC 2d at 147. They emphasize that t sively indicates, the data offered by petitioners in this respect fall short of drawing in Petitioners also contend that the increase in media sources has not resulted in signifi ibuting significantly to viewpoint diversity. The FCC responds that petitioners offer litt f controversial issues, I am satisfied that the FCC did not put all of its eggs in one par atellite television. Id. The Commission has also indicated that these technologies are con y to news; two cable channels are given over to coverage of Congress and related issues. B ast dangerous branch decides to opt in favor of glasnost in its own house. In short, inasm capricious its ultimate finding that the communications market as a whole provides "reaso As to the FCC's finding that the fairness doctrine so chilled speech as to result in a t, unpredictable) consequences on speech, drawing an inference of some chilling effect har rsial issue programming. Petitioners' main argument in this particular is that the Commiss In the face of these arguments, my colleagues state that "we are frankly uncertain how s not follow that we are justified in upholding the Commission's finding of net reduction evalued as "governmentally-coerced speech" fraught with the possibility of partisan abuse. to the finding of chilling effect, but to the doctrine's impact on distinct First Amendme - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 The Commission's statements regarding "governmentally coerced" speech are not found ne's impact on editorial discretion, id. at 5050-51, and with the FCC's analysis of the co ctfully decline to explore. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*686] The fact that a reviewing court cannot "be sure" of the correctness of the Com h the fairness doctrine chills speech. In view of the attention given by the Supreme Court h would require reconsideration of Red Lion), and the principle that the interests of broa n favor of its conclusion of a net reduction. In this respect, my reading of the Order suggests that the Commission, based on its reg nhibitory. Order at 5049. Specifically, the Commission found that the fairness doctrine ch d public affairs programs. Order at 5050. The Commission further noted that, by virtue of ine. Id. at 5049. The Commission was also entitled to take into account the fact that the nding to deprive the public of "uninhibited, robust and wide-open" debate. New York Times n's coverage of controversial issues has increased as a result of the fairness doctrine." These findings, taken together, reasonably support the Commission's ultimate conclusion actually supported conclusion withstands judicial scrutiny in the absence of powerfully co ment [that], on balance, the undesirable effects of the right of access urged by responden omplexity of this issue, but they fail fatally to undermine the FCC's ultimate conclusion. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 Petitioners claim that, under Red Lion, the proper response to such a chilling effe atement in Red Lion that "if experience with the administration of these doctrines indicat ers] give adequate and fair attention to public issues." Red Lion, 395 U.S. at 393. In lig ould be rejected. Once it is accepted that diverse viewpoints will be available to the pub ion. As the Court stated in Red Lion, "it would be better if the FCC's encouragement were - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**97] [*687] E A final criticism directed at the Order concerns the Commission's decision to eliminate 58 n. 2. Review of this determination is rendered difficult by the modestly peripheral rol ecting licensees to take corrective action . . . involve the second prong of the doctrine. uoting 1985 Fairness Report, 102 FCC 2d at 161). By the Commission's account, most of the the limited demands placed on licensees by Part One of the fairness doctrine, the FCC exp 988). The Commission's policy decision to jettison Part One is explained, in part, by referen n's severability argument is more in the nature of a conclusion than an explanation. Maj. ers cover issues responsive to the needs of their community, retention of Part One would p distinctions between Part One of the fairness doctrine and the requirement of community i such as require coverage pursuant to the Fairness Doctrine") (quoting Deregulation of Rad , 228 U.S. App. D.C. 8, 707 F.2d 1413, 1430-32 (D.C.Cir. 1983) cert. denied, Black Citizen on in part because of a distinct obligation imposed under Part One. Id. at 979. In light o Despite these deficiencies, I nonetheless agree that the Commission reasonably eliminat amming imposed by Part Two of the doctrine, will adequately ensure availability of such pr the FCC's reasoning. It is in this sense that I agree with Judge Williams that the Commiss ively countered the FCC's findings, the Commission should be permitted, in effect, to expe * * * For the foregoing reasons, I conclude that the FCC's Order in this case should successf Ashwander-inspired detour need not have been taken. Since my colleagues have chosen a ver DISSENTBY: WALD (In Part) DISSENT: [*669contd] [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; howev WALD, Chief Judge, concurring in part and dissenting in part: I concur in Parts I-IV of Judge Williams' opinion, which uphold the FCC's decision to a Part V, which sustains the Commission's decision to eliminate the fairness doctrine's firs 1985 Fairness Report, 102 F.C.C.2d at 146. I believe that this aspect of the Commission's First, the agency failed to provide interested parties with notice, as required by the n adjudication rather than a rulemaking was involved, no notice was required. See Brief fo dication is the chosen vehicle, the parties at least must be told if a relevant policy is e permitted to evade the requirements of notice and comment by using an adjudication as a e at all; this aspect of the doctrine could therefore be changed only after interested per The FCC did not provide adequate notice of a proposed change in the doctrine's first pr forcement of the fairness doctrine is constitutional and whether enforcement of the doctri rong, interested parties could not have been forewarned that the first as well as the seco The Commission's position is that any thorough examination of the fairness doctrine wou the first prong would be at issue. That argument is belied by the 1985 Fairness Report it the first prong if the second prong were discarded. The FCC's position is further weakened cond were eliminated. n1 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 I draw this conclusion from the fact that the Commission itself has identified no pa vival of the first prong in the event of the second prong's elimination. That hypothesis, second prong is not. See Brief for Syracuse Peace Council at 40-49; Brief for Geller and - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**104] [*670] But even if the Commission had provided adequate notice of its intentions, I d n2 First, analogizing to principles concerning the severability of statutes, the Commissio igations imposed by the first prong were comparable to those imposed by the existing duty in part on other grounds, Office of Communication of United Church of Christ v. FCC, 228 U Finally, the Commission argued that enforcement of the first prong would no longer be nec - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 These arguments, it bears noting, are markedly different from the reasons advanced b The FCC has not suggested that the first prong, standing alone, would be unconstitutional. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's first two arguments appear flatly contradictory. The agency is arguing t prong is desirable only as an adjunct to the second, and if the community issues require ving this incongruity aside, however, the Commission's three arguments do not, in my view, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The Commission has stated that the elimination of the first prong does not cast doub issue responsive programming obligation, we did not intend to suggest that the first part , 2039 (1988). The FCC's position is that the two requirements are sufficiently similar to cy can have it both ways. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As my colleagues recognize, the Commission's analogy to the severability of statutes is intent: would the enacting body have wished to let the rest of the statute stand withou it can make the choice for itself. The agency's purported reliance on severability princi ut the other. Neither can the Commission's action be justified by reference to the overlap between fi duplicative. n4 The community issues requirement obliges broadcasters to devote reasonab troversial issues. It seems entirely foreseeable that some broadcasters might provide abun issues of a controversial nature. In another proceeding, in fact, the FCC has emphasized t are related to but distinct from the broadcaster's duties under the first prong. The cont - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Judge Starr appears to agree on this point. See Start op. at 667-68. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, I am unconvinced by the agency's assertion that the demise of the first prong . Certainly the Commission might reasonably conclude that the first prong would become a l first prong will be counterproductive. The FCC's position is in essence that, after the de Clearly an agency could not justify the promulgation of a new regulation by arguing mer d simply because, after the second prong's elimination, the first prong is likely to do li has been flatly rejected by the Supreme Court. "Revocation constitutes a reversal of the action, instead of a revision in or even the extension of current regulation. If [**110] olicy that are not justified by the rulemaking record." Motor Vehicle Manufacturers Associ upon the Commission to establish some plausible basis for believing that the world would Of course, in one respect the decision to deregulate may legitimately involve a differe agency might sometimes justify the abrogation of a rule on the ground that its beneficial nor presented evidence of the costs of administering the first prong as a justification f - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 In State Farm, the Supreme Court noted that "the removal of a regulation may not ent . at 42. The Court cautioned, however, that "the direction in which an agency chooses to m - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*672] The real-world effects of the first prong's demise are difficult to predict. I ted the extent to which market forces will foster programming on controversial issues. Thi e first prong would produce; the agency has failed to identify any costs. [**112] n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 It might also be that stricter enforcement would make the first prong a potent regul It has also predicted that, with the second prong eliminated, most broadcasters will cove ffective weapon against those few broadcasters who remain recalcitrant. Although my dissen s treatment of this question. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In arguing that the Commission has met its burden of identifying the disadvantages of c of the doctrine's first prong requires the government to judge, on a case-by-case basis, w a different level of government intervention in determining, at renewal time, whether bro riginal). See Williams op. at 668. The Commission appears to argue that continued first pr ns is a particularly intrusive form of broadcast regulation. For two reasons, however, I b First, the passage quoted by Judge Williams is flatly inconsistent with other elements ) take place [**114] at renewal time. The FCC asserted that "the chilling effects unde intrusive because "the stakes for a violation of the rules would be greatly raised" and b subsequent assertion that contemporaneous scrutiny of particular programming decisions (u Moreover, I do not believe that the FCC's obligation to identify the costs of an unwant ion of electronic media, "it is the right of the viewers and listeners, not the right of t 15] was incumbent on the Commission to identify some plausible chain of events through w ng its decision to eliminate the fairness doctrine's second prong, the FCC did not emphasi l speech and thereby adversely affect the range of available programming. But the Commissi ways which would ultimately disserve the public interest. I dissent from the Commission's eradication of prong one because the agency's actions a s under review. Moreover, the agency has provided absolutely no evidence -- indeed, it has hatsoever of continued first prong enforcement. In eliminating prong one along with prong n running riot.