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


RADIO TV NEWS DIR

v.

FCC


98-1305d

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: The court is presently asked to  order the
vacation of the personal attack and political editori- al rules
adopted by the Federal Communications Commission  in 1967 as
corollaries to the fairness doctrine, which the  Commission abandoned
in 1985.2 See Motion to Recall the  Mandate or For an Order Pursuant
to 47 U.S.C. s 402(h), or  a Writ of Mandamus to Compel Agency Action,
filed July 6,  2000 ("Motion for Mandamus"). In deference to the Com-
mission'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 Mo- tion to Recall Mandate or For an
Order Pursuant to 47  U.S.C. s 402(h) or a Writ of Mandamus to Compel


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
jour- nalists 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


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 




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n 1 Judge Wald was originally a member of the panel.


2 See 47 C.F.R. ss 73.1920, 73.1930, 76.209(b)-(d)(1999).


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. Consequent- ly, 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 Commis- sion, 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 p 1  ("Order").3 In the Order, the Commission requested
broad- casters 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 respond-




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n 3 Commissioners Harold W. Furchtgott-Roth and Michael K.  Powell
dissented and issued separate statements. See Order, 2000  WL


ing to the court's opinion. See id. p p 8-13. In view of its  Order,
the Commission contends that the motion for manda- mus 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 rea- sonably be inferred that until
the court's order of July 24,  2000, responding to the Motion for
Mandamus, the Commis- sion had taken no action to respond to the
remand.4 Consis- tent 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.5 On
this record, the court can only  conclude that its remand order for




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n 4 Commissioner Furchtgott-Roth states that he was not ap- proached
about acting on the matter until early September 2000.  See Separate
Statement of Commissioner Furchtgott-Roth, Order,  2000 WL 1468707.
Similarly, Commissioner Powell states that no  one proposed a new
proceeding to him in the months since the  court's remand. See
Separate Statement of Commissioner Powell,  Order, 2000 WL 1468707.
Chairman Kennard's announcement that  he would no longer recuse
himself from "participat[ing] in the  proceeding" did not occur until
September 18, 2000. See Statement  of FCC Chairman William E. Kennard
Concerning his Partic- ipation in the Personal Attack and Political
Editorial Rule Pro- ceeding (September 18, 2000) .


5 See Separate Statement of Commissioner Powell, Order, 2000  WL
1468707.


6 See also s 402(h), which provides:


In the event that the court shall render a decision and enter an  order
reversing the order of the Commission, it shall remand 


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 p 7. Thus, notwith- standing
the Commission's continuing failure to provide ade- quate
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 ac- knowledged have some effect on
speech and cause some  interference with broadcasters' editorial
judgments. The Or- der provides no assurance whatsoever that the
Commission  will proceed expeditiously once it receives the requested 
information. It follows that petitioners' Motion for Manda- mus 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 justifica- tion 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 p 7.  The rules, once reinstated, will be effective year-round.




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n the case to the Commission to carry out the judgment of the  court
and it shall be the duty of the Commission, in the absence  of the
proceedings to review such judgment, to forthwith give  effect
thereto, and unless otherwise ordered by the court, to do  so upon the
basis of the proceedings already had and the  record upon which said
appeal was heard and determined.


47 U.S.C. s 402(h) (West 1991) (emphasis added).


termitting whether the requirement of the First Amendment  suggested by
the Order is skewed,7 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 consti- tute agency
action unreasonably delayed, see Telecommunica- tions 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 ac- tion. 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
constitu- tional 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 acknowl- edged the need for a prompt
decision, the Commission failed  to act for nine months. Finally, its




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n 7 See Separate Statement of Commissioner Furchtgott-Roth,  Order,
2000 WL 1468707; Separate Statement of Commissioner  Powell. Id.


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 immedi- ately to repeal the personal
attack and political editorial rules.