Nos. 77-1058 to 77-1060, 77-1756, 77-1897, 77-2357, 77-1103, and 77-1602.
November 14, 1979. Rehearing Denied January 30, 1980.
Mark N. Mutterperl, J. Roger Wollenberg, Washington, D.C., for defendants-appellants.
Ronald L. Olson, Seth M. Hufstedler, Los Angeles, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Central District of California.
Plaintiffs Writers Guild of America, West, Inc. (Writers Guild) and Tandem Productions, Inc. (Tandem) instituted these consolidated actions against the Federal Communications Commission (FCC) and its Commissioners Wiley, Hooks, Lee, Quello, Reid, Robinson, and Washburn, the three major television networks (ABC, CBS, and NBC), and the National Association of Broadcasters (NAB) to challenge the adoption of the so-called "family viewing policy" as an amendment to the NAB Television Code. The Writers Guild plaintiffs sought declaratory and injunctive relief against the government defendants for violations of the First Amendment, the Administrative Procedure Act, and section 326 of the Federal Communications Act, and against the private defendants on both First Amendment and antitrust grounds. Tandem sought damages in addition to declaratory and injunctive relief against the government defendants for violations of the First Amendment and section 326 of the Federal Communications Act, and against the private defendants on First Amendment and antitrust grounds. The actions were consolidated and tried before the district court. The court, in a lengthy and closely reasoned published opinion, concluded that: (1) threats, influence, and pressure by the Chairman of the FCC caused the networks and the NAB to adopt the family viewing policy; (2) the FCC committed a per se violation of the First Amendment by exerting improper pressure on the networks; (3) the FCC violated the Administrative Procedure Act (APA) by implementing public policy by informal pressure instead of by complying with the Act's procedural requirements; (4) the action of the networks and the NAB constituted "government action" for purposes of the First Amendment both because adoption of the family viewing policy had been caused substantially by FCC pressure and because the networks, the NAB, and the FCC participated in an "unprecedented joint venture" in an effort to compromise the independent judgments of other broadcast licensees; and (5) the networks and the NAB violated the First Amendment by "fail[ing] to exercise independent program judgments and instead becom[ing] surrogates in the enforcement of government policy" and by agreeing to compromise the independent programming judgments of individual broadcast licensees. Writers Guild of America, West, Inc. v. FCC, 423 F. Supp. 1064 (C.D.Cal. 1976). All parties have appealed.
The Writers Guild plaintiffs are various directors, actors, writers, and producers of television programs as well as the Writers Guild of America, West, Inc., Writers Guild of America, East, Inc., Writers Guild of America, Inc., and Screen Actors Guild, Inc.
The Family Viewing Policy reads, in its entirety, as follows:
Additionally, entertainment programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately preceding hour. In the occasional case when an entertainment program in this time period is deemed to be inappropriate for such an audience, advisories should be used to alert viewers. Advisories should also be used when program in later prime time periods contain material that might be disturbing to significant segments of the audience.
These advisories should be presented in audio and video form at the beginning of the program and when deemed appropriate at a later point in the program. Advisories should also be used responsibly in promotional material in advance of the program. When using an advisory, the broadcaster should attempt to notify publishers of television program listings.
Special care should be taken with respect to the content and treatment of audience advisories so that they do not disserve their intended purpose by containing material that is promotional, sensational or exploitative. Promotional announcements for programs that include advisories should be scheduled on a basis consistent with the purpose of the advisory.
Plaintiff Lear asserted no Sherman Act claim.
All issues except for the antitrust aspects of the cases were consolidated for trial. The parties agreed to defer trial concerning the amount of damages, if any, suffered by plaintiff Tandem.
The district court certified its decision in the Writers Guild suit as a final order pursuant to Fed.R.Civ.P. 54(b). An interlocutory appeal in the Tandem suit was authorized by the district court pursuant to 28 U.S.C. § 1292(b). This court permitted the appeal. The Writers Guild and Tandem suits were consolidated. Our jurisdiction rests on 28 U.S.C. § 1291 and 1292(b).
The primary issues on appeal are: (1) Whether the district court erred in concluding that the district court was proper forum for this litigation and that neither the doctrine of exhaustion of administrative remedies nor the doctrine of primary jurisdiction required FCC consideration of plaintiffs' claims prior to district court action; (2) whether the actions of the networks and the NAB amounted to "governmental action" for purposes of the First Amendment; (3) whether the conduct of the FCC, the networks, and the NAB violated the First Amendment; (4) whether the conduct of the FCC violated the Administrative Procedure Act; (5) whether plaintiff Tandem is entitled to recover damages from the private defendants for the alleged violation of its First Amendment rights; and (6) whether the district court erred in denying plaintiffs an award for attorneys fees. Because we conclude that this case raises issues of major significance to the administration of the regulatory scheme pertaining to the broadcast media that properly rest within the primary jurisdiction of the FCC, we do not reach issues (2) through (5). Instead, we vacate the judgment of the district court with instructions to hold in abeyance plaintiffs' claims against the private defendants pending resolution and judicial review of the administrative proceedings before the FCC.
Before proceeding to the jurisdictional issue, it will prove helpful first to summarize the conduct from which this dispute arose, and then to present in a somewhat stark form the legal propositions on which the district court based its decision.
I. FACTUAL BACKGROUND — PROMULGATION OF THE FAMILY VIEWING POLICY
The impact of violent and sexually-oriented television programming was the subject of intense public and congressional concern throughout the two decades preceding the adoption of the family viewing policy as an amendment to the NAB Television Code. The specific events giving rise to this lawsuit, however, commenced in June 1974 when the House Appropriations Committee directed the Federal Communications Commission "to submit a report to the Committee by December 31, 1974, outlining the specific positive actions taken or planned by the Commission to protect children from excessive violence and obscenity." H.R.Rep. No. 1139, 93d Cong., 2d Sess. 15 (1974). On August 1, 1974, the Senate Appropriations Committee followed suit, "urging the Commission to proceed as vigorously and as rapidly as possible — within Constitutional limitations — to determine what is its power in the area of program violence and obscenity, particularly as to their effect on children." S.Rep. No. 1056, 93d Cong., 2d Sess. 19 (1974).
See, e.g., Hearings on Violence on Television Before the Subcomm. on Communications of the Senate Comm. on Commerce, 93d Cong., 2d Sess. (1974); Hearings in Review of Policy Matters of Federal Communications Commission and Inquiry into Crime and Violence on Television and a Proposed Study Thereof by the Surgeon General Before the Subcomm. on Communications of the Senate Comm. on Commerce, 91st Cong., 1st Sess., ser. 91, pt. 6 (1969); Hearings for the Investigation of Juvenile Delinquency in the United States Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 88th Cong., 2d Sess., pt. 16 (1964); Hearings for the Investigation of Juvenile Delinquency in the United States Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 87th Cong., 1st 2d Sess., pt. 10 (1961-62); Hearings for the Investigation of Juvenile Delinquency in the United States Before the Subcomm. to Investigate Juvenile Delinquency of the Senate Comm. on the Judiciary, 84th Cong., 1st Sess. (1955) and 83d Cong., 2d Sess. (1954). For discussions of more recent congressional and public concern about televised violence see Subcomm. on Communications of the House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess., Report of Violence on Television (Comm. Print 1977); Krattenmaker Powe, Televised Violence: First Amendment Principles and Social Science Theory, 64 Va.L.Rev. 1123, 1130-32 (1978); Albert, Constitutional Regulation of Televised Violence, 64 Va.L.Rev. 1299, 1310-17 (1978). For an interesting discussion of even earlier public concern about violence in the media see Krattenmaker Powe, supra at 1288-92 (public outcry concerning violence in motion pictures and in comic books).
After soliciting suggestions from his staff concerning how best to respond to the congressional directive, the Chairman of the FCC, Richard Wiley, embarked on a course of what is described by the press as "jawboning," to have the networks adopt a system of self-regulation that would reduce the amount of sex and violence in television programming without the need for any "formal" Commission action. The FCC staff had recommended a variety of Commission responses to the problem, including issuing notices of inquiry, notices of proposed rulemaking and policy statements. Chairman Wiley, however, opted for jawboning instead, in the belief that many of the staff proposals for formal action would pose serious First Amendment and section 326 problems. 47 U.S.C. § 326. A similar use of jawboning earlier had proven successful in inducing industry self-regulation in the area of children's television programming. See Action for Children's Television v. FCC, 183 U.S.App.D.C. 437, 564 F.2d 458 (D.C.Cir. 1977) ( ACT).
This section provides:
Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.
Chairman Wiley's campaign ultimately involved: (1) five meetings between himself and/or members of the Commission staff and industry representatives at which various proposals for dealing with the problem of televised sex and violence were discussed; (2) three public speeches by Chairman Wiley in which he exhorted the industry to undertake its own action but indicated that unless some action were taken, the government might well be forced to become formally involved with the problem; (3) several telephone conversations between Chairman Wiley and various network executives; and (4) suggestions by Chairman Wiley to various NAB representatives that the NAB expedite its consideration of a proposal for a Code amendment incorporating the family viewing policy. For a detailed account of Chairman Wiley's and the FCC's informal campaign, see Appendix A. The campaign took place between October 1974 and April 1975. In April 1975 the NAB announced the family viewing policy.
II. THE DISTRICT COURT DECISION
In this case plaintiffs mounted a frontal assault on the manner in which the FCC chose to carry out its statutory mandate to "generally encourage the larger and more effective use of radio in the public interest." 47 U.S.C. § 303(g). Plaintiffs argued, inter alia, that Chairman Wiley's informal tactics improperly pressured the networks and the NAB into adopting the family viewing policy; that the FCC's use of these tactics, rather than formal regulation to initiate change within the broadcast industry, violated the First Amendment and section 326 of the Federal Communications Act; and that the FCC in effect implemented a new "public" policy through informal pressure, and thereby failed to comply with the procedural requirements of the APA.
A. District Court's Ratio Decidendi.
To encapsulate the essence of plaintiffs' arguments and the district court's ratio decidendi is not easy. We may begin by sketching briefly a holding of the Supreme Court in Adickes v. S. H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Court held that an action against S. H. Kress Co. under 42 U.S.C. § 1983 would lie if Adickes could show that Kress had refused to serve her "because of a state-enforced custom of segregating the races in public restaurants." Id. at 171, 90 S.Ct. at 1615. This showing would demonstrate a denial of equal protection under the color of a custom of the state. A private defendant in this manner became a participant in joint activity with the state and was thus liable under 42 U.S.C. § 1983.
This analytic structure was employed by the court below. It first enunciated the bedrock principle that the right and duty to make independent decisions regarding access to the television screen rests with the "hundreds of different licensees." 423 F. Supp. at 1134. The principle is elaborated in the following quotation from the district court's opinion:
The right and duty to make independent and final decisions as to who shall and who shall not get access to the media resides not with the networks (except in their capacity as owners of local stations), not with the NAB, not with the FCC, not with the screen writers, director or actors, not with Norman Lear or Tandem Productions and not with this or any other court. The constitutionality of the broadcasting system depends on the conclusion that the right and duty to make these decisions reside in hundreds of different licensees.
The district court next concluded that government pressure substantially caused the adoption of the family viewing policy which deprived the individual licensees of their right and duty to make independent decisions. This deprivation violated the First Amendment. Governmental action exists because of governmental pressure which, as the district court saw it, functioned here as did state-enforced custom in Adickes. Because the government pressure was that of the FCC, an agency of the United States, the district court then fashioned a cause of action for damages against the private defendants based on Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens to this case became what 42 U.S.C. § 1983 was to Adickes. The similarity of this case to Adickes thereby appears close. The liability of private parties for constitutional violations induced by governmental pressure, in Adickes derived from custom and here from jawboning, follows easily from modes of relief designed to provide a remedy for deprivations of constitutional rights. The finding of a violation of the APA by the FCC also follows naturally.
The validity of the district court's analysis fundamentally depends upon whether its bedrock principle is correct and whether its finding of causation is sound. We are not as certain as the district court was. For this reason, as well as for certain more specialized reasons to be developed below, we believe that primary jurisdiction to consider plaintiffs' challenges rests with the Commission. Before turning to our discussion of primary jurisdiction we should point out that the district court's holdings on the liability issues presented in the case are set forth briefly in Appendix B; this restatement of the holdings can only provide a glimpse of the district court's reasoning, the full force of which only a reading of the opinion below can provide. We shall set forth the court's holdings on the jurisdictional issues in the following paragraphs. Nevertheless, perusal of Appendix B should, when taken with the discussion that follows, illustrate the extent to which the district court thrust itself into the "delicately balanced system of [broadcast] regulation." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973) (CBS v. DNC).
B. Jurisdictional Issues.
The disposition by the district court of defendants' jurisdictional arguments was consistent with, and inseparable from, its holdings on liability. At the outset the district court rejected defendants' contentions that under the existing broadcast regulatory scheme, plaintiffs' First Amendment and APA challenges to the FCC actions should have been pursued initially before the agency, and thereafter on review to a court of appeals. The court acknowledged that the statutory review procedure set out in 47 U.S.C. § 402(a), 405 and 28 U.S.C. § 2342 was "fashioned . . . to take advantage of the Commission's expertise and to foster a unified approach to the development of communications law," and is the "established, routine . . . method of challenging orders, decisions, reports, and other actions of the Commission." 423 F. Supp. at 1075-76. Nevertheless, the court concluded that this statutory route did not provide the exclusive avenue of relief for plaintiffs because (1) the FCC actions complained of did not occur in any "proceeding" as that term is used in 47 U.S.C. § 405; hence, plaintiffs were not obligated to file a petition for rehearing with the Commission prior to seeking judicial review, 423 F. Supp. at 1075-78; (2) the FCC actions complained of did not constitute "orders" within the meaning of 47 U.S.C. § 402(a) or 28 U.S.C. § 2342, which grants exclusive jurisdiction to a court of appeals, because the actions did not result in a "formal agency mandate issued at the culmination of some regular agency proceeding," 423 F. Supp. at 1079-80; (3) the FCC actions complained of did amount to "agency action" within the meaning of 5 U.S.C. § 551(13), 702, and 703, for which judicial review in the district courts was available unless the doctrine of exhaustion of administrative remedies was applicable, 423 F. Supp. at 1085-86 § n. 24; and (4) plaintiffs' constitutional claims were reviewable in the district court when the FCC actions complained of did not amount to final orders reviewable in a court of appeals, the doctrine of exhaustion of administrative remedies was inapplicable, and the FCC lacked the power to award damages for the alleged violations. Id. at 1086-89.
The court further acknowledged that "the existence of serious constitutional issues may be a factor encouraging exhaustion [of administrative remedies] in circumstances where the necessity of deciding such issues may be obviated by an administrative grant of relief on non-constitutional grounds," and that "orderly administrative procedures may [not] be bypassed automatically merely because the plaintiff claims that a particular administrative action is unconstitutional or otherwise in excess of its statutory powers." Id. at 1082, 1083 n. 21. The court nonetheless rejected defendants' contention that plaintiffs had not exhausted their administrative remedies prior to instituting these actions in the district court. Exhaustion was unnecessary, the court concluded, because (1) the FCC was "palpably without jurisdiction to interfere with broadcaster decisionmaking in the manner complained of," (the bedrock principle once more), id. at 1083; (2) the FCC was biased and had already prejudged the issues, so that resort to the Commission would be futile, id. at 1081-82; (3) the FCC had imposed an immediate burden on the exercise of important rights, id. at 1082; and (4) the FCC lacked the power to provide plaintiffs an adequate remedy, since it lacked the power to award damages, id. at 1088. As shall appear below, we have strong reservations about the validity of the first three reasons.
Finally, the court addressed defendants' contention that the doctrine of primary jurisdiction obligated the court to refer plaintiffs' claims to the FCC for an initial determination. The court earlier had concluded that the FCC was the "primary and exclusive forum" for initiating complaints based upon alleged FCC violations of section 326 of the Federal Communications Act because the Act did not give rise to a private cause of action and dismissed plaintiffs' claim based thereon. 423 F. Supp. at 1084. As to plaintiffs' First Amendment and APA claims, however, the court stated that: (1) "[N]othing would be served by having the FCC determine the factual questions surrounding the adoption of the family viewing policy," id. at 1090, even though the FCC possessed "recognized expertise in balancing the delicate First Amendment considerations involved in the television industry," id.; (2) "the First Amendment legal questions raised either involve no special FCC expertise ( e. g., state action and remedies) or are not in controversy ( e. g., the lack of FCC power to censor protected material)," id.; and (3) the issues involved in the case "are simply not the kind of questions which need `be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme,'" id. (quoting United States v. Western Pacific Railroad, 352 U.S. 59, 65, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)). We strongly disagree with each of these conclusions with respect to the First Amendment and APA claims.
III. PRIMARY JURISDICTION
The district court's findings of fact and conclusions of law of the liability issues, see Appendix B, make clear that it believed the FCC not only acted in an unconstitutional manner but also disregarded the requirements of the APA as well. That is, it achieved an improper goal in an improper manner. The court's conclusions strike at the very core of the pervasive issue concerning the scope of the FCC's power in regulating broadcasting and put at issue a technique of governing, viz., jawboning, that under one name or another has long been in use in government generally.
These are serious issues; yet both pertain to matters of great concern to the FCC and with respect to which it has special competence. Perhaps the district court is right and our reservations with respect to its fundamental holdings are without substance. Nonetheless, we cannot believe that the ultimate judicial resolution of these issues will not be aided by the FCC's thorough consideration of them. Then, and only then, should courts step with even modest confidence into these sensitive and difficult areas.
We acknowledge that were we able to accept as correct beyond challenge the district court's bedrock principle we would perceive less need of deference to the FCC's primary jurisdiction. However, the licensees are to a degree trustees for the benefit of the public and subject to reasonable regulations having as a goal or regime of law "compatible with the First Amendment rights of the public and the licensees." CBS v. DNC, 412 U.S. at 132, 93 S.Ct. at 2101 (1973). In the conflict of interests within the television industry between licensees, networks, broadcasters, writers, actors, producers, and the public, it must be remembered that the Communications Act makes the interests of the public paramount. Id. at 122, 93 S.Ct. 2080. In CBS v. DNC, the Supreme Court emphasized that the present system of broadcast regulation strikes a balance between private and public control of the broadcast spectrum.
Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of great delicacy and difficult. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved over the course of the past half-century. For, during that time, Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned. . .
The regulatory scheme evolved slowly, but very early the licensee's role developed in terms of a "public trustee" charged with the duty of fairly and impartially informing the public audience. In this structure the Commission acts in essence as an "overseer," but the initial and primary responsibility . . . rests with the licensee. This role of the Government as an "overseer" and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic "free agent" call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a "tightrope" to preserve the First Amendment values written into the Radio Act, and its successor, the Communications Act.
Id. at 102, 117, 93 S.Ct. at 2086, 2094.
Invocation of the primary jurisdiction doctrine provides a needed opportunity to obtain an explicit and well articulated determination by the FCC of whether its actions under Chairman Wiley properly walked the "tightrope." The classic statement of the principle underlying the primary jurisdiction doctrine was stated by Mr. Justice Frankfurter in Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952):
Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.
Although the doctrines of primary jurisdiction and exhaustion of administrative remedies serve cognate ends, Western Pacific Railroad, supra, distinguishes them in the following manner:
"Exhaustion" applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. "Primary jurisdiction," on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 [60 S.Ct. 325, 331, 84 L.Ed. 361].
Western Pacific Railroad, supra, 352 U.S. at 63-64, 77 S.Ct. at 165. Thus, even if our reservations regarding the district court's refusal to find that the plaintiffs had failed to exhaust available administrative remedies are unsound, we are convinced that primary jurisdiction in this proceeding belongs in the FCC.
Our conclusion, although firm and fixed, is reached in full realization of the considerable force of the district court's contrary view. That view rests on assertions that (1) the position of the FCC was already clear, (2) the views of the FCC could be presented in this case as well as in a formal administrative proceeding, (3) the FCC possessed no special expertise in formulating "a theory of governmental action under the First Amendment or [fashioning] appropriate remedies," 423 F. Supp. at 1091, and (4) the FCC cannot adjudicate a charge of "serious misconduct" involving itself and its Chairman, id.
The first of these propositions overstates the facts, while the second ignores the ordinary constraints imposed as a result of being a party to litigation. The position of the FCC in this lawsuit is clear enough and the activities of Chairman Wiley are beyond dispute. It is not known, however, what the position of the FCC would have been, or in the future will be, when confronted by the plaintiffs' claims in a proper administrative proceeding. Such a proceeding will make possible a range of responses by the FCC that are either foreclosed or made tactically difficult in the setting of this lawsuit as it developed in the trial court. Children shortly after leaving the cradle understand the difference between being forced to defend against a charge of naughtiness and being asked to consider whether they thought they had been nice. In the latter posture their response is much more likely to be open and forthcoming. Human psychology does not change too much between the cradle and the grave.
As to the third proposition, we simply have less confidence in the district court's bedrock principle than it does. Enough has already been said to indicate that there presently exist constraints on the right of individual licensees to present on the air such matters as they wish. Well known are the ramifications of the Fairness Doctrine, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Commission's rules regarding cigarette advertising, Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (D.C.Cir. 1968), and the Commission's position with respect to indecent language, FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). It simply is not true that the First Amendment bars all limitations of the power of the individual licensee to determine what he will transmit to the listening and viewing public. At issue in this case is whether a family viewing hour imposed by the FCC would contravene the First Amendment. This is a considerably more narrow and precise issue than is the district court's bedrock principle and with respect to which the FCC's expertise and procedures could provide enormous assistance to the judiciary.
The district court's fourth assertion on which it rested its rejection of the primary jurisdiction doctrine falls of its own weight once the district court's findings regarding liability are put in doubt. The FCC and its Chairman engaged in "serious misconduct" only if the law is as the district court found it. Weaken that foundation and what appeared as "serious misconduct" looks more like, at worst, jawboning of the type often praised as effective leadership by those satisfied with its results and condemned as unprincipled administration by those who disapprove of those results.
Jawboning relates, of course, to the district court's holding that the Commission violated the APA in its use of informal procedures in the manner described above. The technique raises serious issues. It is not surprising that the Commission often seeks to "chart a workable `middle course' in its quest to preserve a balance between the essential public accountability and the desired private control of the media." CBS v. DNC, 412 U.S. at 120, 93 S.Ct. at 2095. One such "middle course" has been the tendency of the FCC to rely upon self-regulation by the broadcast industry to promote the public interest, a practice that has possibly had the salutary effect of diminishing the need for formal governmental intervention and regulation. See, e.g., ACT, supra. Moreover, reliance upon self-regulation no doubt has relieved both the FCC and the industry of the need to confront the dilemma of delineating the precise extent of the agency's formal regulatory authority in various areas. Hence, informal discussions between the Commission and members of the industry that lead to self-regulation constitute but one aspect of the ongoing effort by both the government and the licensees to negotiate the regulatory "tightrope" on which they confront one another. See CBS v. DNC, 412 U.S. at 117, 93 S.Ct. 2080.
We acknowledge that informal procedures permit the FCC to exercise "wideranging and largely uncontrolled administrative discretion in the review of telecommunications programming" which can be used to apply "sub silentio pressure" on broadcast licensees. Bazelon, FCC Regulation of the Telecommunications Press, 1975 Duke L.J. 213, 215. Regulation through "raised eyebrow" techniques or through forceful jawboning is commonplace in the administrative context, and in some instances may fairly be characterized, as it was by the district court in this case, as official action by the agency.
See Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 176-79, 194, 515 F.2d 397, 407-10, 425 (D.C.Cir. 1975) (Statement of Bazelon, C. J., concerning why he voted to grant rehearing en banc); Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390, 399, 478 F.2d 594, 603 (D.C.Cir.) (Statement of Bazelon, C. J., concerning why he would grant rehearing en banc, sua sponte), cert. denied, 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973); Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 366 n. 60, 473 F.2d 16, 77 n. 60 (D.C.Cir. 1972) (Bazelon, C. J., dissenting), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973); Robinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulation, 52 Minn.L.Rev. 67, 118-27 (1967).
See, e.g., United Steelworkers v. Weber, ___ U.S. ___, 99 S.Ct. 2721, 2737-38 n.2, 61 L.Ed.2d 480 (1979) (Rehnquist, J., dissenting) (affirmative action plan adopted under pressure from Office of Federal Contract Compliance Programs); ACT, supra, 183 U.S.App.D.C. at 452, 564 F.2d at 473 n. 27 (FCC jawboning to induce self-regulation in children's programming area); Hercules, Inc. v. FPC, 552 F.2d 74, 77-78 (3d Cir. 1977) (FPC jawboning to establish pipeline curtailment priorities in accordance with FPC policy when FPC lacked power to impose own curtailment plans without prior notice and hearing); Consolidated Edison Co. v. FPC, 168 U.S.App.D.C. 92, 101, 512 F.2d 1332, 1341 (D.C.Cir. 1975) ("Regulation through `raised eyebrow' techniques seems inherent in the structure of most administrative agencies, combining as they do both policy-making and adjudicative functions."); Consumers Union of U.S., Inc. v. Kissinger, 165 U.S.App.D.C. 75, 82, 506 F.2d 136, 143 (D.C.Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2406, 44 L.Ed.2d (1975) (Executive Department efforts to reduce steel imports via "voluntary imports restraints.") ("[N]othing in the process leading up to the voluntary undertakings or the process of consultation under them differentiates what the Executive has done here from what all Presidents, and to a lesser extent all high executive officers, do when they admonish an industry with [an] express or implicit warning that action, within either their existing powers or enlarged powers to be sought, will be taken if a desired course is not followed voluntarily.") See also AFL-CIO v. Kahn, No. 79-1564 (D.C.Cir. June 22, 1979), cert. denied, ___ U.S. ___, 99 S.Ct. 3107, 61 L.Ed.2d 879 (1979) ("Voluntary" wage-price program not "mandatory" economic control within meaning of § 3(b) of Council on Wage and Price Stability Act).
"The Commission approved of his activities before the fact, permitted him to engage in activities which they knew would be perceived as regulatory moves by the agency, were regularly kept abreast of the developments, and provided input into the process." 423 F. Supp. at 1122. See id. at 1077 n. 13, 1120-23, 1130. But see Illinois Citizens Committee for Broadcasting, supra, 169 U.S.App.D.C. at 171, 515 F.2d at 402 (speech by FCC Chairman Burch not "agency action").
While we agree that the use of these techniques by the FCC presents serious issues involving the Constitution, the Communications Act, and the APA, we nevertheless believe that the district court should not have thrust itself so hastily into the delicately balanced system of broadcast regulation. Because the "line between permissible regulatory activity and impermissible `raised eyebrow' harassment of vulnerable licensees" is so exceedingly vague, Bazelon, supra, 1975 Duke L.J. at 217, it is important that judicial attempts to control these techniques be sensitive to "the particular regulatory context in which it occurs, the interests affected by it, and the potential for abuse." Consolidated Edison Co. v. FPC, 168 U.S.App.D.C. 92, 101, 512 F.2d 1332, 1341 (D.C.Cir. 1975) (footnote omitted). The development of standards governing the agency's use of informal methods to influence broadcast industry policy is an issue "that should be dealt with in the first instance by those especially familiar with the customs and practices of the industry." Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 305, 93 S.Ct. 573, 582, 34 L.Ed.2d 525 (1973). See also CBS v. DNC, 412 U.S. at 102-03, 93 S.Ct. 2080. Deferral to the FCC is, we believe, essential to further the purposes of the delicately balanced system of broadcast regulation. See L. Jaffe, Judicial Control of Administrative Action 158-59 (1965); Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980, 984 (1975). Hence, primary jurisdiction over plaintiffs' challenges to the official agency action complained of in this case as a violation of the APA rests with the FCC.
Courts are becoming increasingly more sensitive both to the innuendo inherent in the relationship between regulators and regulatees as well as to the need to formulate appropriate limits on ex parte contacts between an agency and those whom it is charged to regulate. See generally Home Box Office, Inc. v. FCC, 185 U.S.App.D.C. 142, 184-192, 567 F.2d 9, 51-59 (D.C.Cir. 1977); ACT, supra, 183 U.S.App.D.C. at 447-57, 564 F.2d at 468-78; Moss v. Civil Aeronautics Board, 139 U.S.App.D.C. 150, 156-161, 430 F.2d 891, 897-902 (D.C.Cir. 1970).
In conclusion, we think it appropriate to note our support for the following views expressed by the District of Columbia Circuit Court in ACT, another case in which FCC jawboning activities were involved:
The Commission, as the expert agency entrusted by Congress with the administration and regulation of the crucial, dynamic communications field, required and deserves some latitude in carrying out its substantial responsibilities. It may not be the sole guardian of the public's interest in broadcasting — licensees, the courts and the general public in varying ways share responsibility with it for defining and advancing that interest — but, in the formulation of broadcast policy, the Commission nevertheless must continue to play a leading role.
If our relationship with the Commission and other federal agencies is to remain a partnership, we may not succumb to the temptation of casting ourselves in the unsuited role of primus inter pares.
Accordingly, we vacate the judgment of the district court and remand with instructions to refer plaintiffs' claims against the government defendants to the FCC, and to hold in abeyance plaintiffs' claims against the private defendants pending resolution and judicial review of the administrative proceedings before the FCC.
Vacated and Remanded.