The U.S. Court of Appeals severely chastized the Federal Communications Commission yesterday for its position that radio stations should be allowed to change their program formats without public hearings.
In reiterating that the hearings are necessary when listeners allege a certain format is unique and financially viable, the appellate panel said the FCC's attempt to cut out the hearings raised questions about the commission's "rationality and impartiality."
"Throughout the format controversy, the commission has displayed a deep-seated aversion to the decisions of this court, while at the same time misinterpreting and exaggerating their meaning," U.S. Circuit Judge Carl McGowan wrote for the majority.
The format controversy has arisen since the appeals court found in a 1974 case that the law requires the commission to hold a hearing if a significant sector of the listening community can show a station's format is unique and financially viable and should not be changed.
The commission, however, disagreed and two years later issued what it called a "policy statement" while urging the court to change its mind. The FCC said in that statement it viewed itself in a partnership with the U.S. Court of Appeals on broadcasting issues and that it should rethink its policy on the issue.
In responding to that view yesterday, the appeals court said in its 7-to-2 opinion that the commission can have all the "policy" it wants but that the court of appeals is laying down the "law of the land," and the FCC had to obey it.
"This court has neither the expertise nor the constitutional authority to make 'policy' as that word is commonly understood," McGowan said.
Instead of making policy contrary to law, the court said, the FCC sould have begun drawing up standards to implement the court decision.
"It is regrettable, from the present perspective, that rather than pursuing simply to throw up its hands," McGowan added.
U.S. Circuit Judge Edward A. Tammand George MacKinnon dissented, saying the majority of the court had lost, sight of the proper role in reviewing agency policy. They said the FCC had made a "reasoned judgment" that the hearings aren't necessary, and that the court should bow to it.