459 U.S. 498 - Community Television of Southern California v. Gottfried Federal Communications Commission

The question presented is whether § 504 of the Rehabilitation Act of 19731 requires the Federal Communications Commission to review a public television station's license renewal application under a different standard than it applies to a commercial licensee's renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 655 F.2d 297, we conclude that it does not.

* On October 28, 1977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: First, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing impaired population within its service area; and second, that the licensee had violated, and remained in violation of, § 504 of the Rehabilitation Act.2

Correspondence attached to Gottfried's petition included complaints about KCET-TV's failure to carry enough programming with special captioning3 or other aids to benefit the hearing impaired members of the audience. The exhibits emphasized the station's failure to broadcast the ABC evening news in captioned form prior to May 23, 1977, and its subsequent failure to broadcast the captioned program during prime time.

In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-1722 (CADC), pp. 102-105. The licensee also described its programming efforts to respond to the special needs of the hearing impaired,4 and explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for 11:30 p.m. and 6:30 a.m. The licensee specifically denied that it had violated § 504 and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. App. in No. 79-1722 (CADC), p. 113.

On December 22, 1977, Gottfried filed a verified response, criticizing the station's public survey, and commenting further on the station's failure to rebroadcast ABC captioned news programs before May 23, 1977. The response renewed the charge that the station had violated § 504,5 and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge.6

Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E.g., App. in No. 79-1722 (CADC), p. 199. The Commission consolidated all eight proceedings and ruled on Gottfried's objections in a single memorandum opinion adopted on August 8, 1978. 69 F.C.C.2d 451.

The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 1970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming.7 In 1972, the Commission had granted authority to the Public Broadcasting System to being experimentation with a "closed" captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience.8 In 1976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions—both technical and financial concerning the most effective means of improving television service for the hearing impaired, that it remained "the responsibility of each licensee to determine how it could most effectively meet those needs."9 The Commission summarized its views concerning mandated forms of technology by noting that "there is no requirement that any television licensee—commercial or noncommercial—provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information." Id., at 455.

The Commission then turned to Gottfried's objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and § 504 of the Rehabilitation Act. It first found that the licensees' efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community;10 in the absence of any Commission requirement for specialized programming techniques, it found "no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area." Id., at 458.

The Commission held that § 504 of the Rehabilitation Act had no application to the seven commercial licensees because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by § 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider § 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare—"the proper governmental agency to consider such matters." Id., at 459.

On May 29, 1979, the Commission adopted a second memorandum opinion and order denying Gottfried's petition for reconsideration. 72 F.C.C.2d 273. The Commission again reviewed Gottfried's § 504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried's additional argument that it had a duty to adopt regulations to implement § 504. Finally, the Commission refused to hold that either its omission of a rule requiring "captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcast," or the failure of the licensees to provide such services, was a violation of the "public interest" standard embodied in § 309 of the Communications Act of 1934, as amended. The Commission held: "We find no error and nothing inconsistent in concluding that licensees are serving the public interest although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee's qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming." Id., at 279.

Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U.S.C. § 402. The Court of Appeals affirmed the portion of the Commission's order that related to the commercial stations but vacated the renewal of the KCET-TV license and remanded for further proceedings. 655 F.2d 297.

The Court held that Congress did not intend the Commission's renewal of a broadcast license to be considered a form of "financial assistance" within the meaning of § 504 and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The Court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act's general requirement that licensees serve "the public interest, convenience, and necessity." 47 U.S.C. §§ 307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the Court accepted the Commission's judgment that the commercial licenses should be renewed. "Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today to its judgment." Id., at 315-316 (footnotes omitted).

The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with § 504. The Court of Appeals did not hold that KCET-TV had violated § 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter "public interest" standard should be applied to a licensee covered by § 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations "to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired." Id., at 301.

Judge McGowan dissented in part. He agreed with the majority's view concerning commercial stations that rulemaking would be "a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing," id., at 301, 316, than case by case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs.11 Judge McGowan stated, "[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired." Id., at 317.

Both the Commission and the licensee petitioned for certiorari. Because of the serious implications of the Court of Appeals' holding on the status of licenses of public broadcasting stations, we granted both petitions. 454 U.S. 1141, 102 S.Ct. 998, 71 L.Ed.2d 292.

All parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing.12 The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 1973, see 26 F.C.C.2d 917 (1970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves.13

We are not persuaded, however, that Congress intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission.14 As originally enacted, the Act did not expressly allocate enforcement responsibility. See Pub.L. 93-112, Title V, § 504, 87 Stat. 394. Nevertheless, since § 504 was patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S.Rep. No. 93-1297, pp. 39-40 (1974), U.S.Code Cong. & Admin.News 1974, p. 6373. When the Act was amended in 1978, that understanding was made explicit. See Pub.L. 95-602, Title I, § 119, 92 Stat. 2982; n. 1, supra. It is clear that the Commission is not a funding agency and has never been thought to have responsibility for enforcing § 504.15 Furthermore, there is not a word in the legislative history of the Act suggesting that it was intended to alter the Commission's standard for reviewing the programming decisions of public television licensees.

If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker's license.16 But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act.17

The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station's service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations—public and commercial consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee whether public or commercial—for failing to comply with a requirement of which it had no notice.18 As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a "better, fairer, and more effective" method of implementing a new industry-wide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station.

A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see FCC v. WNCN Listeners Guild, 450 U.S. 582, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981); when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee.19

The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in § 309 of the Federal Communications Act. Neither that Court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals' affirmance of the Commission's rejection of Gottfried's objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the Commission.

It is so ordered. Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

In determining that the "public interest" would be served by renewal of the broadcast license of public station KCET-TV, the FCC refused to consider whether the station had violated the Rehabilitation Act of 1973 during its previous license term. The Court today holds that this refusal to consider the Rehabilitation Act did not constitute an abuse of discretion. In concluding that the FCC was free to disregard the Rehabilitation Act, the Court emphasizes that "the Commission's duties derive from the Communications Act, not from other federal statutes," ante, at 510 n. 17, and that there is no evidence that Congress intended to vest the Commission with power to enforce the Rehabilitation Act, ante, at 509. Because the Court's decision is not supported by either precedent or any sound view of the administrative process, I respectfully dissent.

* This Court's decisions establish that where an agency has a statutory duty, as does the FCC,1 to assess the "public interest" in implementing a particular regulatory scheme, the agency must give at least some consideration to other federal statutes that are pertinent to its administrative decision. Although the open-ended phrase "public interest" "take[s] meaning from the purposes of the regulatory legislation" that defines the particular agency's responsibilities, NAACP v. FPC, 425 U.S. 662, 669, 96 S.Ct. 1806, 1811, 48 L.Ed.2d 284 (1976), the agency may not focus on those purposes to the complete exclusion of the policies reflected in other relevant statutes.

The principle that an agency may not ignore a relevant Act of Congress was clearly set forth by Justice Rutledge in his opinion for the Court in McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544 (1944). In McLean Trucking the ICC had approved a proposed consolidation as "consistent with the public interest." Id., at 75-76, 64 S.Ct., at 375, quoting 49 U.S.C. § 5(2)(b). While recognizing that the ICC's duties derived primarily from the Interstate Commerce Act and related legislation specifically regulating commerce, Justice Rutledge rejected any suggestion that the ICC could therefore ignore other relevant statutes in deciding whether a proposed transaction would serve the "public interest":

"To secure the continuous, close and informed supervision which enforcement of legislative mandates frequently requires, Congress has vested expert administrative bodies such as the Interstate Commerce Commission with broad discretion and has charged them with the duty to execute stated and specific statutory policies. That delegation does not necessarily include either the duty or the authority to execute numerous other laws. Thus, here, the Commission has no power to enforce the Sherman Act as such. It cannot decide definitively whether the transaction contemplated constitutes a restraint of trade or an attempt to monopolize which is forbidden by that Act. The Commission's task is to enforce the Interstate Commerce Act and other legislation which deals specifically with transportation facilities and problems. That legislation constitutes the immediate frame of reference within which the Commission operates; and the policies expressed in it must be the basic determinants of its action.

"But in executing those policies the Commission may be faced with overlapping and at times inconsistent policies embodied in other legislation enacted at different times and with different problems in view. When this is true, it cannot, without more, ignore the latter." Id., at 79-80, 64 S.Ct., at 376-377 (emphasis added).

The Court held that the ICC was obligated to take the Sherman Act into account in deciding whether to approve the proposed consolidation, even though Congress had not given the Commission either the power or the duty to enforce the Act.2

Similarly, in Denver & Rio Grande Western Railroad Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967), this Court concluded that "the broad terms 'public interest' and 'lawful object' [in § 20a(2) of the Interstate Commerce Act] negate the existence of a mandate to the ICC to close its eyes to facts indicating that the transaction may exceed limitations imposed by other relevant laws." 387 U.S., at 492, 87 S.Ct., at 1759. Justice BRENNAN explained in his opinion for the Court that "[c]ommon sense and sound administrative policy point to the conclusion that such broad statutory standards require at least some degree of consideration of control and anticompetitive consequences when suggested by the circumstances surrounding a particular transaction." Ibid. Accordingly, the Court held that the ICC was required to consider the anticompetitive effect under § 7 of the Clayton Act of a proposed stock issuance by a carrier even though that Act confers no enforcement power on the ICC.

In Southern Steamship Co. v. NLRB, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246 (1942), this Court recognized that the National Labor Relations Board must consider federal statutes independent of federal labor law where they are relevant to an issue to be decided by the Board. Although the Court acknowledged the breadth of the Board's discretion, id., at 46, 62 S.Ct., at 894, it concluded that the Board had no discretion to disregard pertinent federal laws: "the Board has not been commissioned to effectuate the policies of the National Labor Relations Act so singlemindedly that it may wholly ignore other and equally important Congressional objectives." Id., at 47, 62 S.Ct., at 894. The Court ruled that the Board had abused its discretion in ordering the reinstatement of striking seamen without considering whether the strike had violated either a federal law requiring crew members to promise obedience to their superiors or provisions of the Federal Criminal Code proscribing mutiny and revolt aboard ship.

These decisions establish that, however broad an administrative agency's discretion in implementing a regulatory scheme may be, the agency may not ignore a relevant Act of Congress. The agency need not conclusively determine what the statute in question requires or forbids. See McLean Trucking Co. v. United States, 321 U.S., at 79, 64 S.Ct., at 376 (ICC "cannot definitively decide whether the transaction contemplated constitutes a restraint of trade or an attempt to monopolize"). If the agency, after considering the relevant statute, concludes that it should not prevent achievement of the objectives embodied in the regulatory scheme that the agency is specifically empowered to implement, and states reasons for this conclusion, the agency's determination will not lightly be overturned. But the agency cannot simply "close its eyes" to the existence of the statute. Denver & Rio Grande Western Railroad Co. v. United States, 387 U.S., at 492, 87 S.Ct., at 1759.

There are good reasons for this Court's insistence that administrative agencies consider relevant statutes. The objectives of Congress would be ill served if each administrative agency were permitted to disregard any statute that it is not specifically authorized to enforce. "No agency entrusted with determinations of public convenience and necessity is an island. It fits within a national system of regulatory control of industry." Palisades Citizens Association, Inc. v. CAB, 420 F.2d 188, 191 (DCCA 1969). As the Court observed in Southern Steamship, "[f]requently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another." 316 U.S., at 47, 62 S.Ct., at 894. There can be no accommodation, careful or otherwise, if an agency refuses even to consider a relevant statute.

In light of the principle established by our prior decisions, the Court of Appeals correctly held that it was an abuse of discretion for the FCC to refuse to consider respondent's allegation that KCET-TV had violated § 504 of the Rehabilitation Act.3

The relevance of the alleged violation to the Commission's licensing decision is beyond dispute. The chief purpose of the Communications Act was "to make available . . . to all the people of the United States a rapid, efficient, Nationwide, and world-wide wire and radio communication service." 47 U.S.C. § 151 (emphasis added). See National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1009, 87 L.Ed. 1344 (1943). The deaf constitute a substantial segment of the population. Ante, at 508 n. 12. If, as this Court has stated, the Commission has an "obligation . . . to ensure that its licensees' programming fairly reflects the tastes and viewpoints of minority groups," NAACP v. FPC, 425 U.S., at 670 n. 7, 96 S.Ct., at 1812 n. 7, then surely it also has an obligation to consider whether a license has denied meaningful programming of any kind to a sizeable minority group.

Since respondent's allegation that KCET-TV had violated the Rehabilitation Act was relevant to the FCC's determination of whether renewal of the station's license would serve the "public interest," the Commission should have given "at least some consideration" to the Act. Denver & Rio Grande Western Railroad Co. v. United States, 387 U.S., at 492, 87 S.Ct., at 1759. There is no reason to depart from our traditional insistence that administrative agencies take into account any federal statute that is pertinent to an administrative decision.4 As the Court noted in Southern Steamship, consideration of any pertinent statutes "is not too much to demand of an administrative body." 316 U.S., at 47, 62 S.Ct., at 894. The decision of the Court of Appeals demanded no more than this, and the handicapped individuals protected by the Rehabilitation Act are entitled to no less.