UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


RADIO TV NEWS DIR

v.

FCC


98-1305c

D.C. Cir. 2000


*	*	*


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 happened 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


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 by the two Commissioners in support of the rules was
inadequate to permit judicial review.  Id. at 881-85. The court
instructed the Commission's two-member majority to explain its support
of the personal attack and political editorial rules in light of the
Commission's conclusion in 1985 that the fairness doctrine was not 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 Commission must 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, filed 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 and
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 that it 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 that would
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 an Order 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 on their actions during the
suspension period and to provide, within sixty days after the
reinstatement of the rules on December 3, 2000, evidence to assist the
Commission in reviewing the rules and in responding to the court's
opinion. See id.  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 not so simple, however.


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 failure to provide adequate justification, as
of December 3, 2000, petitioners would again be subject to the rules
that they have contended since 1980 have serious consequences and 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 Lines, Inc. 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 Reply to the FCC Response to the Emergency Motion, the
Commission updated the record four years ago and still did not provide
an adequate justification for the rules. See id. at 2. Apparently the
Commission views the presidential election period as a particularly
good opportunity to gauge the effect of the rules. See Order  7. The
rules, once reinstated, will be effective year-round. Pretermitting
whether the requirement of the First Amendment suggested by the Order
is skewed, 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 that the rules will be reinstated on
December 3, 2000. In short, the October 4th Order compounds the
problems, affording no relief to petitioners and no assurance that
final action is imminent, much less to be expeditiously accomplished.
The petition 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


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


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.