[T]he court hereby recalls its mandate and issues a writ of mandamus directing the Commission immediately to repeal the personal attack and political editorial rules.
United States Court of Appeals
for the District of Columbia Circuit Filed On: October 11, 2000
Radio-Television News Directors Association and
National Association of Broadcasters,
Federal Communications Commission and
United States of America,
Office of Communication, Inc., of the
United Church of Christ, et al.,
On Motion to Recall the Mandate
or for an Order Pursuant to 47 U.S.C. _ 402(h),
or a Writ of Mandamus to Compel Agency Action
Before: Edwards, Chief Judge and Rogers, Circuit Judges.
Rogers, Circuit Judge: The court is presently asked to order the vacation of the personal attack and political editorial rules adopted by the Federal Communications Commission in 1967 as corollaries to the fairness doctrine, which the Commission abandoned in 1985. See Motion to Recall the Mandate or For an Order Pursuant to 47 U.S.C. _ 402(h), or a Writ of Mandamus to Compel Agency Action, filed July 6, 2000 ("Motion for Mandamus"). In deference to the Commission's response in opposition, the court held in abeyance consideration of the Motion for Mandamus until September 29, 2000, instructing that if the Commission had not acted by that date, petitioners could supplement their request and seek appropriate action from the court. On October 2, 2000, petitioners filed an Emergency Motion, Supplement to Motion to Recall Mandate or For an Order Pursuant to 47 U.S.C. _ 402(h) or a Writ of Mandamus to Compel Agency Action ("Emergency Motion").
The court has previously recounted
the chronology of events, now exceeding twenty years when in response
to a 1980 petition to vacate the rules, nothing
for long periods of time. See Radio-Television News Dirs. Ass'n v. FCC,
184 F.3d 872 (D.C. Cir. 1999) ("1999 Radio-Television"). The court did, however,
acknowledge that the rules "interfere with editorial judgment of professional
journalists and entangle the government in day-to-day operations of the media," id.
at 881, and "chill at least some speech, and impose at least some burdens
on activities at the heart of the First Amendment." Id. at 887. Consequently,
the court held that it was incumbent upon the Commission to "explain why
the public interest would benefit from rules that raise these policy and constitutional
doubts." Id. at 882.
In December 1999,
following the denial of rehearing and rehearing en banc, the court
remanded the case to the Commission, stating that the Joint Statement
the two Commissioners in support of the rules was inadequate to permit
judicial review. Id. at 881-85. The court instructed the Commission's
to explain its support of the personal attack and political editorial
rules in light of the Commission's conclusion in 1985 that the
in the public interest and its decision in 1987 not to enforce the
fairness doctrine. Id. at 889. The court also stated that given prior delay, the
act expeditiously on remand. Id. at 889. In so doing, however, the court
did not doubt its authority to grant relief. Id. at 888. Although the Commission
advised in response to the petition for rehearing and rehearing in banc,
September 28, 1999, that a prompt decision by it was needed and that it
could commence a new proceeding, see Response to Petition for Rehearing
En Banc at 6, and also sought additional time to act in opposing the pending
motion, see FCC Response to Motion for Mandamus, filed July 18, 2000, at
3, as of September 29, 2000, the Commission had failed to advise the court
had acted, much less commenced a proceeding and petitioners represented
that no such action has been taken. See Emergency Motion at 16. Consequently,
the two rules continued to exist in a vacuum, unsupported by reasoning
demonstrate to the court that they are in the public interest notwithstanding
some interference with and some burdens on speech.
On October 4, 2000, the Commission
responded to the Emergency Motion advising that on that date the
Commission, over two dissents, had issued
temporarily suspending the rules for 60 days, effective immediately.
See Order and Request
to Update Record, 2000 WL 1468707 _ 1 ("Order"). In the
Order, the Commission requested broadcasters and others to report
the suspension period and to provide, within sixty days after the
reinstatement of the rules on December 3, 2000, evidence to assist
in reviewing the rules and in responding to the court's opinion.
__ 8-13. In view
of its Order, the Commission contends that the motion for mandamus
is now moot. See Response to Emergency Motion at 1. The matter is
Neither the timing nor the substance of the Order responds to the court's remand order in 1999 Radio-Television. From the silence of the Commission until October 4, 2000, and the statements of the two dissenting Commissioners, it can reasonably be inferred that until the court's order of July 24, 2000, responding to the Motion for Mandamus, the Commission had taken no action to respond to the remand. Consistent with the decision of the court, the two Commissioners supporting the rules could have submitted a new justification with or without new data, or the Commission could have commenced a new proceeding to gather such data. The separate statement of Commissioner Powell indicates that the deadlock might not have persisted had some intermediary steps been proposed. On this record, the court can only conclude that its remand order for expeditious action was ignored.
Be that as it may, the court is now confronted with the October 4th Order.
Clearly, the Order is not responsive to the court's remand. The Commission
still has not
provided adequate justification for the rules, and in its Order provides
no assurance that it will do so. The suspension of the rules for 60 days
simply has the effect
of further postponing a final decision by the Commission. Incredibly, the
Order reinstates the rules before the Commission will have received any
of the updated
information that the Commission states it requires in order to evaluate
the rules. See Order _ 7. Thus, notwithstanding the Commission's continuing
adequate justification, as of December 3, 2000, petitioners would again
be subject to the rules that they have contended since 1980 have serious
that the court has acknowledged have some effect on speech and cause some
interference with broadcasters' editorial judgments. The Order provides
no assurance whatsoever
that the Commission will proceed expeditiously once it receives the requested
information. It follows that petitioners' Motion for Mandamus is not moot.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Delta Air
v. CAB, 674 F.2d 1, 4 (D.C. Cir. 1982).
In other words, it is folly to suppose that the 60-day suspension and call
to update the record cures anything. As petitioners point out in their
the FCC Response to the Emergency Motion, the Commission updated the record
four years ago and still did not provide an adequate justification for
See id. at 2. Apparently the Commission views the presidential election
period as a particularly good opportunity to gauge the effect of the rules.
Order _ 7. The rules, once reinstated, will be effective year-round. Pretermitting
whether the requirement of the First Amendment suggested by the Order is
not only does the Order provide short notice for broadcasters to change
their plans, but their conduct will in any event be affected by the fact
rules will be reinstated on December 3, 2000. In short, the October 4th
the problems, affording no relief to petitioners and no assurance that
final action is imminent, much less to be expeditiously accomplished. The
to vacate the rules has been pending since 1980, and less stalwart petitioners
might have abandoned their effort to obtain relief long ago. If these circumstances
do not constitute agency action unreasonably delayed, see Telecommunications
Research and Action Ctr. v. FCC, 750 F.2d 70, 79-81 (D.C. Cir. 1984), it
is difficult to imagine circumstances that would.
In these extraordinary circumstances, the court's decision is preordained and the mandamus will issue. Cf. Calderon v. Thompson, 523 U.S. 538, 550 (1998). The court has afforded repeated opportunities for the Commission to take final action. Despite its filings suggesting to the court that something would happen, the Commission, once again, has done nothing to cure the deficiencies of which it has been long aware. Of course, the Commission may institute a new rule-making proceeding to determine whether, consistent with constitutional constraints, the public interest requires the personal attack and political editorial rules. These are issues that the court has yet to decide. Nevertheless, extraordinary action by the court is warranted in this case, particularly in view of the fact that the six reasons proffered in support of the rules were all wanting. See 1999 Radio-Television, 184 F.3d at 881-85. The Commission has delayed final action for two decades, to the detriment of petitioners. While it acknowledged the need for a prompt decision, the Commission failed to act for nine months. Finally, its response consists of an order that further postpones a final decision without any assurance of a final decision.
Accordingly, the court hereby recalls its mandate and issues a writ of mandamus directing the Commission immediately to repeal the personal attack and political editorial rules.