Opinion for the court filed by TAMM, Circuit Judge.
TAMM, Circuit Judge:
This appeal comes to us upon a petition for review of a decision by the Federal Communications Commission (Commission or FCC) not to adopt certain rules proposed by a public-interest organization to improve children's television. We affirm the Commission because we find that it substantially complied with the applicable procedures, provided a reasoned analysis for its action, did not depart from established policies, and did not otherwise abuse its discretion.
A. The Rulemaking Proceedings
In February, 1970, Action for Children's Television (ACT), a Massachusetts non-profit corporation, submitted several proposals to the Commission to improve children's television fare, principally by eliminating all sponsorship and commercial content from such programming and by requiring all licensees to provide a minimum amount of age-specific programming for children. Specifically, ACT urged the adoption of the following rules:
(i) Pre-school; 7 am-6 pm daily ages 2-5 7 am-6 pm weekends (ii) primary; 4 pm-8 pm daily ages 6-9 8 am-8 pm weekends (iii) elementary; 5 pm-9 pm daily ages 10-12 9 am-9 pm weekends
Petitioner's Brief at 9; Government's Brief at 3.
The Commission accepted ACT's submission as a petition for rulemaking
By its own description, response to the Commission's Notice was "overwhelming". 50 F.C.C.2d 1, 2 (1974); J.A. 2. More than 100,000 comments were filed, filling 63 docket volumes, licensees and networks submitted extensive formal pleadings and programming data and, during 1972 and 1973, the Commission hosted three days of panel discussions and three days of oral argument during which representatives of the industry and members of the general public were afforded an opportunity to express their views regarding the full spectrum of children's television practices. See id. at 32-34; J.A. 49-51. ACT subsequently filed comprehensive reply comments, J.A. 125-87, in support of its essential position that "unless commercial pressures were eliminated, children would never receive adequate broadcast service."
In the wake of such manifestly widespread public support for ACT's proposed rules, and, perhaps, in apprehensive anticipation of possible agency adoption of those rules,
These salutary reforms in the broadcast industry
Id. at 16 (footnote added). Soon thereafter, the Association of Independent Television Stations (INTV)
These manifestations of industry willingness to improve the quality of children's television by self-regulation satisfied the Commission for the time being, and in October, 1974, it issued a Children's Television Report and Policy Statement, 50 F.C.C.2d 1 (1974); J.A. 1-63 (the Report), which identified areas where improvement was necessary in children's television and which explained the Commission's decision not to adopt specific rules governing children's television practices at that time.
B. The Report and Policy Statement
The Report addressed the issues raised during the proceedings in Docket 19142 from three related perspectives: (1) the Commission's authority to regulate programming and advertising practices generally; (2) broadcasters' previous performance in the area of children's television; and (3) the improvements expected of broadcasters if they were to meet their responsibilities to the child audience. It emphasized that broadcasters do have a special obligation to serve children.
50 F.C.C.2d at 5; J.A. 7. The Commission determined, however, that for the time being rules establishing minimum quantitative levels of age-specific programming did not appear necessary.
Id. at 6; J.A. 8-9 (footnote omitted).
The Report noted that the Commission was just beginning to receive the complete data necessary to assay broadcasters' performance in children's programming through its new renewal form, FCC Form 303, which for the first time required the submission of information on the amount of programming primarily directed to children. It cautioned that "the question of rules [may] be revisited as we gain experience under the new form." Id. n. 6; J.A. 8 n. 6.
Turning to advertising practices, the Report emphasized that the Commission's responsibilities under the Act "include an obligation to insure that broadcasters do not engage in excessive or abusive advertising practices." Id. at 8-9; J.A. 12. However, since the FTC at that time was already formally inquiring into many of the advertising practices complained of by parties in the Docket 19142 proceedings, the Report did not address all of the promotional practices that had been objected to, noting that the Commission traditionally had deferred to the FTC in matters of false or deceptive advertising practices. It nevertheless did consider that an examination of broadcasters' responsibilities to the child audience was warranted in two specific areas: (1) the overall level of overcommercialization; and (2) the need for clearly separating programming from advertising content.
Concerning the problem of overcommercialization, the Report stated that the important, long-standing Commission policy against licensees devoting an excessive amount of broadcast time to advertising assumed an even greater significance with respect to children's programs:
Id. at 11; J.A. 15. Nevertheless, the Commission concluded that, notwithstanding the legitimate concerns about overcommercialization and other advertising abuses, abolishing advertising altogether from such programs would merely be self-defeating and, hence, not in the public interest.
Id.; J.A. 16.
The Commission also relied on what it considered the encouraging decisions of the NAB and INTV to restrict advertising voluntarily
Id. at 13-14; J.A. 18-20 (footnotes omitted; emphasis added). It also announced that it would soon amend its renewal form once again to elicit information from licensees regarding the time devoted to advertising during children's programs,
Acknowledging the undesirability of particular advertising practices that had been addressed during the course of the rulemaking proceedings, such as "host selling", "tieins" and other product promotion ploys, the Report emphasized the need for maintaining a clear separation between program content and commercial message so as to avoid deceiving children, and detailed the special measures that broadcasters should undertake to meet their responsibilities in this regard. The Commission nevertheless again concluded that broadcasters should first be given an opportunity of proving that their own efforts would be effective in treating these problems.
Finally, the Commission stated that it expected the Report to have clarified broadcasters' responsibilities throughout this area.
Id. at 18; J.A. 26. However, since the Commission intended to evaluate improvements in children's television resulting from the industry's self-regulatory efforts, as it had repeatedly emphasized throughout the Report, the proceedings in Docket 19142 were left open.
C. Subsequent Developments
Following up upon its announced intention to obtain "adequate information on broadcasters' advertising practices in programs designed for children," id. at 13; J.A. 19, the Commission subsequently amended section IV-B of its broadcast renewal form, FCC Form 303, to elicit a variety of data on licensee's past and proposed commercial practices. 53 F.C.C.2d 161 (1975); J.A. 64-66. In so doing, the Commission again underscored its intention of closely monitoring broadcasters' efforts at self-regulation.
Id.; J.A. 64 (citation omitted).
Unsatisfied by these efforts, however, ACT filed a timely petition for reconsideration of the Report in which it advanced three basic policy recommendations. First, it argued that the Commission should adopt rules establishing specific amounts and percentages of time to be dedicated to children's programming,
II. PROCEDURAL COMPLIANCE
ACT claims at the outset that the manner in which the Commission concluded these rulemaking proceedings "epitomizes abuse of the administrative process" by its failure to solicit public comment on the industry proposals for self-regulation negotiated "behind the closed doors of Chairman Wiley's office in a private meeting with NAB officials . . . [in which] the industry was clearly coerced into action under the threat of FCC regulation." Petitioner's Brief at 25. ACT contends that such action undermines the administrative process since it denies public participation at every stage of the regulatory process when issues of critical public importance are considered, frustrates effective judicial review, and renders the extensive comment-gathering stage "little more than a sop. . . ." Id. at 26-28.
In response the Commission argues preliminarily that ACT's procedural objections are not reviewable because neither ACT nor any other party raised them before the Commission through a petition for reconsideration. Government's Brief at 55-57. The literal language of section 405 of the Communications Act, 47 U.S.C. § 405 (1970), certainly supports this contention:
Id. See also 47 C.F.R. § 1.429(j) (1976).
The purpose of section 405 is to afford the Commission the initial opportunity
ACT offers no justification for its failure to raise the issue of "closed door bargaining" in its petition for rehearing beyond unsupported conclusory assertions that it is "most unlikely" that the Commission would have attempted to cure its "error" had ACT in fact raised the issue in time for the Commission to do so. Petitioner's Reply Brief at 20-21. Such an assertion would be uncompelling in the absence of any concrete indication that reconsideration would have been futile, cf. Office of Communication of United Church of Christ v. FCC, 150 U.S.App.D.C. 339, 344, 465 F.2d 519, 524 & n. 17 (1972), and, in other circumstances, we would be constrained from entertaining the objection. That objection, however, essentially alleging a denial of administrative due process, raises neither a novel factual issue for which an initial Commission determination is quite clearly both necessary and appropriate, nor a legal issue on which the Commission, see, e. g., Rules Governing Ex Parte Communications, 1 F.C.C.2d 49 (1965), and even this court, see Courtaulds (Alabama) Inc. v. Dixon, 111 U.S.App.D.C. 115, 294 F.2d 899 (1961); see generally Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221 (1959), has not already made known its general views to the contrary. Thus, we believe that a thorough airing of the merits of ACT's procedural challenge would not be inappropriate in this case, especially in light of the agency's tentative conclusion of these informal rulemaking proceedings shortly after ex parte discussions with regulatee representatives.
ACT's characterization of the Commission's action as an abuse of the administrative process misconceives the agency's role in, and the flexibility of, the informal rulemaking proceeding through which the Commission explored the issues raised by
In addition to notice, an agency must permit meaningful public participation by giving "interested parties an opportunity to participate in the rule making through a submission of written data, views, arguments with or without opportunity
Under section 553, then, ACT and other interested members of the public, including industry representatives, were entitled to a reasonable opportunity to comment and submit data in support of, or in opposition to, the rules proposed. The Commission substantially met this requirement by permitting a lengthy period for the submission of written comments and by holding six days of informal panel discussions and formal oral arguments. The information gathered by the Commission during this informal rulemaking process, along with any information put forth by the agency itself, represent the factual basis on which the agency must necessarily proceed in making its final determination. This factual predicate must be limited in this way in order to give interested parties proper notice of the reasoning behind the agency's actions and to give meaning to the right to submit comments on the proposed rule. While the agency must consider, analyze and rely on these factual materials which are in the public domain, the agency may draw upon its own expertise in interpreting the facts or upon broader policy considerations not present in the record. We believe that the Commission operated within this framework in this case.
We do not consider that ACT's lack of opportunity to respond directly to NAB's specific self-regulatory proposals vitiated the Commission's decision to accept tentatively those proposals, as indicia that self-regulation could prove effective, in lieu of adopting specific rules. On balance, the procedures used by the Commission constitute substantial compliance with the APA's mandate of limited, yet meaningful, public participation. See Texaco, Inc. v. FEA, 531 F.2d 1071, 1081-82 (Em.App.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976).
The Commission's treatment of the various issues and its extended explanation for the action taken detailed in the Report show that ACT's participation in these proceedings was not just pro forma, and that its submissions were not simply ignored. We have long recognized that any judicial review of administrative action cannot be meaningfully conducted unless the court is fully informed of the basis for that action. See, e. g., P.A.M. News Corp. v. Hardin, 142 U.S.App.D.C. 227, 231, 440 F.2d 255,
Id. at 395, 514 F.2d at 817.
Here, notwithstanding that no rule was adopted
In holding that ACT's position was not prejudiced by the manner in which the Commission pursued the temporary resolution of these proceedings, we wish to emphasize that we are not insensitive to ACT's disenchantment with what it considered to be the agency's undue deference to the interests of those it was created to regulate. Meaningful public participation is always to be encouraged, since, at the very least, it "[p]ermits administrative agencies to inform themselves and to afford adequate safeguards to private interests." Final Report of the Attorney General's Committee on Administrative Practice 103 (1941), quoted in S. Doc. No. 248, 79th Cong., 2d Sess. 19-20 (1946). See Bonfield, Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U.Pa.L.Rev. 540, 540-49 (1970). We previously have warned that "when Congress creates a procedure that gives the public a role in deciding important questions of public policy, that procedure may not lightly be sidestepped by administrators." Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 84, 439 F.2d 584, 594 (1971);
Home Box Office, supra at ___, 567 F.2d at 57. Executive Order 11920, which the opinion quotes and essentially adopts as an overarching principle of administrative law, is an executive branch prohibition of ex parte contacts with White House staffers regarding international air route allocations when such route certifications are before the President for approval. See id. at ___, 567 F.2d at 56.
For the reasons set forth below, we agree with Judge MacKinnon that the above-quoted rule should not apply—as the opinion clearly would have it—to every case of informal rulemaking. Home Box Office, supra (opinion concurring specially filed May 20, 1977). However, notwithstanding our views to the contrary, we hold only that Home Box Office's broad proscription is not to be applied retroactively in the case sub judice inasmuch as it constitutes a clear departure from established law when applied to informal rulemaking proceedings such as undertaken in Docket 19142. See generally Linkletter v. Walker, 381 U.S. 618, 627-29, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).
In the absence of support for its position in the Administrative Procedure Act,
In so applying Sangamon, the panel in Home Box Office had to clear one substantial hurdle of decisional law: this court's decision—two years after Sangamon—in Courtaulds (Alabama) Inc., supra, where we held that an FTC rule generically defining a certain fiber as "rayon" was not voided by the agency's acceptance of ex parte materials supplied by the manufacturer-plaintiff's competitors. The court in Courtaulds stated:
Id., 294 F.2d at 904-05 n. 16.
Home Box Office distinguished Courtaulds in two ways: 1) by referring to the fact that in both Home Box Office and Sangamon "the substance of the contacts was kept secret" whereas in Courtaulds the court found "no evidence that the Commission improperly did anything in secret or gave to any interested party advantages not shared by all . . ." id. at 904-05; and 2) by noting that Courtaulds did not involve resolution of competing claims to a valuable privilege. See Home Box Office, supra, 185 U.S.App.D.C. at ___ n. 124, 567 F.2d at 56. Of course, these bases for distinguishing Courtaulds from Home Box Office also distinguish our present case with the same and perhaps even greater force.
On the other hand, the Home Box Office opinion does not discuss the case cited in the Courtaulds footnote quoted above, Van Curler Broadcasting Corp. v. United States, 98 U.S.App.D.C. 432, 236 F.2d 727 (en banc), cert. denied, 352 U.S. 935, 77 S.Ct. 226, 1 L.Ed.2d 163 (1956). In this en banc decision we held that certain ex parte contacts between Commission members and CBS representatives during informal rulemaking proceedings on a TV channel assignment did not invalidate the Commission's subsequent allocation.
Id. at 730. While the rulemaking in Van Curler was limited to one particular channel assignment, the "nation-wide intermixture problem" was not irrelevant to that proceeding. The petitioners were UHF licensees complaining of the allocation of a VHF channel to a community in their area of service, and FCC intermixture policy would perforce have served as an all-important background for this rulemaking action. The court in Sangamon distinguished Van Curler thusly:
269 F.2d at 224 n. 6. While the meaning of this statement is not entirely clear, it appears to say that because the Commission said it was not influenced by the ex parte contacts the reviewing court need not presume otherwise—a position not in harmony with the presumption of agency irregularity implicitly underwritten by the Home Box Office decision. Compare Home Box Office, supra, 185 U.S.App.D.C. at ___, 567 F.2d at 54. We do not propose to argue that Van Curler stands for the proposition that ex parte contacts always are permissible in informal rulemaking proceedings—they are of course not—but we do think it can be read as supporting the proposition that ex parte contacts do not per se vitiate agency informal rulemaking action, but only do so if it appears from the administrative record under review that they may have materially influenced the action ultimately taken.
On the other hand, though, we have Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)—a somewhat Delphic opinion
If we go as far as Home Box Office does in its ex parte ruling in ensuring a "whole record" for our review, why not go further to require the decisionmaker to summarize and make available for public comment every status inquiry from a Congressman or any germane material—say a newspaper editorial—that he or she reads or their evening-hour ruminations? See generally Davis, supra § 13.12 (Supp.1970). In the end, why not administer a lie-detector test to ascertain whether the required summary is an accurate and complete one? The problem is obviously a matter of degree, and the appropriate line must be drawn somewhere. In light of what must be presumed to be Congress' intent not to prohibit or require disclosure of all ex parte contacts during or after the public comment stage, see note 27, supra, we would draw that line at the point where the rulemaking proceedings involve "competing claims to a valuable privilege." Home Box Office, supra, 185 U.S.App.D.C. at ___, 567 F.2d at 61 (MacKinnon, J., concurring specially). It is at that point where the potential for unfair advantage outweighs the practical burdens, which we imagine would not be insubstantial, that such a judicially conceived rule would place upon administrators.
See also Automotive Parts & Accessories Ass'n v. Boyd, 132 U.S.App.D.C. 200, 208-13, 407 F.2d 330, 338-43 (1968).
In sum, we believe that the nature of the proceedings in Docket 19142 was not of the kind that made this rulemaking action susceptible to poisonous ex parte influence. Private groups were not competing for a specific valuable privilege. Furthermore, this case does not raise serious questions of fairness. Chairman Wiley met with representatives of NAB, as Chairman Burch had met with representatives of ACT, and there is no indication that he "gave to any interested party advantages not shared by all." Home Box Office, supra, 185 U.S.App.D.C. at ___ n. 124, 567 F.2d at 56, quoting Courtaulds (Alabama) Inc., supra, 294 F.2d at 905. Nor is it a case, as Home Box Office was, where the
ACT's real dispute, of course, is with the merits of the Commission's decision not to promulgate rules, a subject to which we now turn.
III. REVIEW OF THE MERITS
ACT challenges the Commission's interpretation of the Communications Act's public interest standard
We agree with the Commission that its decision not to adopt specific regulations governing advertising and programming practices for children's television was a reasoned exercise of its broad discretion.
Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 100, 359 F.2d 282, 284 (1966). As a corollary of this broad general discretion, the Commission has considerable latitude in responding to requests to institute proceedings or to promulgate rules, even though it possesses the authority to do so should it see fit. "Administrative rule making does not ordinarily comprehend any rights in private parties to compel an agency to institute such proceedings or promulgate rules." Rhode Island Television Corp. v. FCC, 116 U.S.App.D.C. 40, 44, 320 F.2d 762, 766 (1963); see NAACP v. FPC, 172 U.S.App.D.C. 32, 47, 520 F.2d 432, 447 n. 53 (1975), aff'd, 425 U.S. 662, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976); Mackey v. United States, 103 U.S.App.D.C. 146, 255 F.2d 898, 899 (1958). There may be situations in which exceptions to this general rule governing the promulgation of rules are warranted,
The Commission's decision was not an abrupt departure from past policies.
ACT also argues that Commission reliance on action by the NAB and INTV is presumptively ineffective because these associations have only limited participation
The Commission did not act arbitrarily or otherwise abuse its broad discretion in declining to adopt ACT's proposed rules as its own, or, for that matter, in declining to adopt any rules whatsoever for the time being. It has set forth its views in this area in a thorough and detailed manner. Its Report manifests a reasoned consideration of the issues raised during these proceedings and contains clearly stated conclusions which justify the approach taken. Our review may take us no further.
We might occasionally wish that judges were imbued with legislative powers as well, but we know that under our constitutional system of government we are not. Our authority is limited, both constitutionally and by statute, and this is no less true when we sit in review of the orders of
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. Rather, our function in passing upon these particular proceedings must come to an end once we have concluded that the Commission's action was a reasoned exercise of its discretion. Having so concluded upon a careful review of the record before us, the order of the Commission challenged by ACT herein is
28 F.C.C.2d at 370-71; J.A. 118 (emphasis added).
Id. at 371-72; J.A. 120.
Petitioner's Brief at 11.
Id. at 155, 67 S.Ct. at 251. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Joseph E. Seagram & Sons, Inc. v. Dillon, 120 U.S.App.D.C. 112, 114, 344 F.2d 497, 499 (1965).
This is not to say that the well-recognized distinction between informal rulemaking and adjudications or formal rulemaking "on the record", see Fla. East Coast Ry., supra, 410 U.S. at 245, 93 S.Ct. 810, is an appropriate guide to administrative decision-making in every case. Occasionally it is not. In Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973), for instance, we recognized that informal rulemaking under § 553 might require certain adversary procedures akin to adjudications or formal rulemaking when circumstances, such as often obtain in rate-making cases, made them appropriate. On other occasions, we also have required more limited procedures in addition to those specified in § 553. See, e. g., International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973) (requiring public oral argument); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972) (requiring a statement of reasons for rule); Walter Holm & Co. v. Hardin, 145 U.S.App.D.C. 347, 354, 449 F.2d 1009, 1016 (1971) (requiring public oral argument). See generally Williams, "Hybrid Rulemaking" Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 410 (1975); Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782, 790-801 (1974). Certainly where a balancing of various components of the public interest is a necessary condition for the grant of a particular application, something more than the minimal notice and comment procedures of § 553 may well be called for, see, e. g., Independent Bankers Ass'n v. Bd. of Governors of the Fed. Res. Sys., 170 U.S.App.D.C. 278, 290, 516 F.2d 1206, 1218 (1975), but this will seldom be true where the necessary balancing is undertaken in making a quasi-legislative policy of broad applicability.
Likewise, in a case emphasized by petitioner, Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891 (1970), we were faced with a demonstrably different situation from the one now confronting us. A number of congressmen petitioned this court to review the lawfulness of certain fare increases filed by the airlines with the Civil Aeronautics Board (CAB). The rate-making proceeding at issue involved ex parte meetings with airline representatives followed by what was alleged to be nothing more than a pro forma public hearing limited to oral argument. Id. at 152, 430 F.2d at 893. We found that the CAB's order, setting forth a rate-making formula for increased fares which the Board "propose[d] to accept", id. at 155, 430 F.2d at 896, resulted in Board-prescribed rather than carrier-proposed rates, since "the pressures on the carriers to file rates conforming exactly with the Board's formula were great, if not actually irresistible." Id. at 156, 430 F.2d at 897. As such, we held the Board's action invalid for failure to comply with the statutory notice and hearing requirements of Federal Aviation Act § 1002(d), 49 U.S.C. § 1482(d) (1964), and, by necessary implication, for ignoring the rate-making criteria specified in § 1002(e) of the Act, id. § 1482(e). Clearly, then, Moss presents a very different case from the one sub judice. The only statutory procedural requirements applicable to the FCC's informal rulemaking in this case are to be found in the APA and its own regulations, none of which petitioner has specifically identified as having been violated.
Id. at 1151.
In the case sub judice, however, we have concluded that the FCC substantially complied with the procedural requirements of § 553, and we do not consider that the meetings between the FCC's Chairman and NAB representatives compel a contrary conclusion. If we were to accept the proposition implicit in petitioner's argument—that the FCC may never resort to discussions with members of the industry in a general effort to have its regulatees conform to their public service obligations—the Commission would have little choice but to abandon any reasonable expectation of salutary self-regulation and to affirmatively regulate throughout the areas of children's programming and advertising. The problem, of course, is necessarily a matter of degree, and an agency may well be found to have abused its authority were it to employ overbearing "jawboning" or "arm-twisting" tactics. In the Writers Guild decision, the Commission was held to have overstepped its authority when the Commission Chairman threatened "regulatory actions up to and including the relicensing process . .," if broadcasters did not reduce substantially the amount of violent and "adult" material shown during evening hours. Id. at 1149. At least in the case now before us, however, we are satisfied that the Commission did not coerce the industry into accepting agency-decreed policies or standards negotiated at closed-door meetings. Any coercion that may have been involved in this case would appear to result more from petitioner's commendable energies and interest in improving children's television by petitioning for these proceedings than from the Commission itself.
Id. § 555(b) (emphasis added). Section 555 sets forth "[a]ncillary matters" which by subsection 555(a) apply to sections 551 through 559, including of course informal rulemaking under section 553. Most of the subsections in section 555, including subsection 555(b), deal with ancillary matters that would normally arise only in the context of adjudications. However, like subsection 555(e) which by its terms applies to "any agency proceeding," subsection 555(b) applies to any "agency function," which certainly includes rulemaking. The above-quoted language can reasonably be read as sanctioning ex parte contacts, subject of course to an agency's determination that they are consistent with "the orderly conduct of public business." Thus, this particular subsection gives added support to the Commission's contention that "[t]he fact that the public was not part of meetings Chairman Wiley held with industry representatives no more means the public was excluded from participation in this proceeding than does the fact that the public was not part of meetings former Chairman Burch had held with representatives of ACT." Government's Brief at 58.
If Congress wanted to forbid or limit ex parte contacts in every case of informal rulemaking, it certainly had a perfect opportunity of doing so when it enacted the Government in the Sunshine Act, Pub.L. No. 94-409, 90 Stat. 1241 (Sept. 13, 1976). Referring to Executive Order 11920 and the general policy declaration of the Sunshine Act's section 2, which states that it is "the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government," the court in Home Box Office goes on to conclude that "[c]ertainly any ambiguity in how Sangamon should be interpreted has been removed by [these] recent congressional and presidential actions." Home Box Office, supra, 185 U.S.App.D.C. at ___, 567 F.2d at 56. In our view, any support that these actions might lend to that decision's extension of Sangamon to all informal rulemaking proceedings is rendered nugatory by what Congress chose not to do. That it did not extend the ex parte contact provisions of amended section 557 to section 553—even though such an extension was urged upon it during the hearings—is a sound indication that Congress still does not favor a per se prohibition or even a "logging" requirement in all such proceedings.
Hearings before the Subcomm. on Admin. Prac. & Proc., 94th Cong., 1st Sess. 103 n. 12 (1976). We agree, and believe that the case now before us falls squarely within that exception.
Id. at 219, 63 S.Ct. at 1011.
We cannot now say that the positive actions taken by the FCC to alleviate these apparent difficulties—by mandating a clear separation of programming from advertising and avoidance of "host-selling", for example—were insufficient as a matter of law. Nonetheless, the Commission has warned that "special safeguards may be required to insure that the advertising privilege is not abused . . .," id. at 11, J.A. 15, and, having recognized that a serious problem exists in this area, the agency has a continuing responsibility to do something further about it should subsequent experience demonstrate that more needs to be done.