SNEED, Circuit Judge:
Plaintiffs Writers Guild of America, West, Inc. (Writers Guild)
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
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.
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;
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 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.
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
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 on 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.
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):
Although the doctrines of primary jurisdiction and exhaustion of administrative remedies serve cognate ends, Western Pacific Railroad, supra, distinguishes them in the following manner:
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
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.
While we agree that the use of these techniques by the FCC presents serious issues involving the Constitution, the Communications Act, and the APA,
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:
183 U.S.App.D.C. at 461, 564 F.2d at 482.
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.
The following paragraphs provide a reasonably complete chronological account of the major events, as established by the district court, 423 F.Supp. at 1092-1128, that occurred prior to the formal adoption by the NAB of the family viewing policy.
Chairman Wiley's initiative began October 10, 1974, when he delivered a speech to the Illinois Broadcasters Association in which he focused on "the question of violence and obscenity on television — particularly as to the effect of such presentations on our children.
On November 7, 1974, Chairman Wiley made the first of several personal lobbying efforts when he and members of his staff met with the Washington vice presidents of ABC, CBS, and NBC. He emphasized the need for action to reduce violent and sex-related programming on television, and proposed, inter alia, that each network issue a policy statement setting forth its position on televised violence and obscenity, that the stated policies include a provision for cautionary warnings to be televised whenever a program posed a problem, and that programs for which warnings were needed be scheduled for viewing later in the evening.
A second meeting occurred on November 22, 1974, when Chairman Wiley and FCC staff members met for two hours in the Chairman's office with the presidents of the networks and other network executives. Chairman Wiley directed attention to the existence of a serious problem concerning "`undue violence' and `fairly explicit' sexual material" on television. He again stressed the importance of confining shows that might prove harmful to children to the later evening hours and the desirability of providing warnings before showing particularly sensitive material. He reemphasized the need for some action in this area, indicating that the Commission was reluctant for legal and policy reasons to promulgate specific programming rules. He suggested that the networks issue a joint policy statement on the subject of televised sex and violence, and that the NAB express a new position in its Television Code. Arthur Taylor, the President of CBS, made it clear that he thought an industry-wide solution was necessary to deal with the problem. Chairman Wiley endorsed an industry-wide approach and commented that industry-wide compliance might be encouraged by including in license renewal forms new questions on stations' policies regarding the scheduling of programs containing sex or violence, or by issuing a general policy statement similar to the one issued in the children's television programming/advertising area, outlining what was expected of licensees regarding sex and violence, particularly when significant numbers of children were in the audience. The meeting concluded with the understanding that each network would send the FCC a statement of its current standards, that the FCC staff would meet with network officials in charge of broadcast standards, and that the participants in the November 22 meeting would meet again at a later date.
On November 29, 1974, former FCC Commissioner Nicholas Johnson, in his capacity as chairman of the National Citizen's Committee for Broadcasting, wrote to Chairman Wiley asking that the Commission "afford the National Citizens Committee for Broadcasting or other representatives of the public the right to observe any further negotiations between the Commission and the television networks with respect to so-called `sex and violence' in programming." Wiley refused, stating that he did not believe "any useful purpose could be served by opening these meetings to outside groups such as your own."
On December 10 and 11, 1974, members of the FCC staff met separately with executives responsible for program standards at each of the networks. In these sessions the FCC sought to clarify its position, to achieve an understanding of how the networks would apply a new scheduling policy to specific programs, and to learn more about the programming practices of the networks. On December 17, 1974, the same FCC staff members met with Chairman Wiley to review the current status of the discussions with the networks. The consensus of the group was that the networks had the idea that any further move by the Commission would appear heavy-handed, that the networks knew of the approaching December 31 deadline for the FCC's report to Congress, and that no "reminder" of the urgency of the situation was necessary. In
On December 30, 1974, Arthur Taylor, president of CBS, sent a letter to Wayne Kearl, chairman of the NAB Television Code Review Board, in which CBS proposed that the NAB Code be amended to reflect the principle that "[p]rogramming in the first hour of the network prime-time schedule should be suitable for family viewing." On the same day, the CBS proposal was released publicly and NBC issued a press release stating that its current schedule "reflects the policy of opening its prime time programming with series suitable for family viewing . . .. NBC intends to continue this policy, whether or not the NAB Code is amended to include a provision along these lines." On January 2 or 3 NBC issued another press release, dated January 6, 1975, in which it announced that it "plan[ned] to devote the first hour of its prime time network schedule to programming suitable for general family viewing."
On January 7, 1975, the NAB Television Code Review Board met in a special session requested by CBS, to consider the CBS proposal for a "family viewing hour." The Board took no formal action on the proposal but instead passed a resolution directing the Program Standards Committee to "review and to make recommendations affecting (1) principles relating to the scheduling of programs in early evening prime-time periods and (2) the use of suitable advisory legends as to the nature of program content." The group "agreed" that the resolution "[did] not commit the Program Standards Committee to recommend any specific action." The Committee was obligated only to present a report to the Television Code Review Board during the NAB convention in April 1975.
On January 8, 1975, ABC announced that "the first hour of each night of its prime time network entertainment schedule will be devoted to programming suitable for general family audiences starting with the new television season in the fall of 1975." ABC's announcement also contained the following statement:
On January 9, 1975, Chairman Wiley and the FCC staff met again with the participants in the November 22 meeting. The president of the NAB and the Senior Executive Vice President for Governmental Relations of the NAB attended the meeting as well, by invitation of Chairman Wiley. He sought to facilitate an expeditious adoption of the family viewing policy, to clarify various aspects of the policy, and to encourage extension of the policy to the first two hours of prime time programming. He also inquired whether it would be possible to secure NAB Board approval of the proposal prior to the April convention, given that the FCC had to report to Congress in mid-February.
On January 15, 1975, the NAB Television Board of Directors met and passed a resolution which provided in part that:
The Program Standards Committee of the Code Review Board subsequently met on January 28, 1975, to consider what role the NAB should assume concerning the family viewing policy, and passed the following resolution:
The Television Code Review Board met on February 4, 1975, and adopted the following statement as a proposed amendment to the NAB Television Code:
On February 10, 1975, Chairman Wiley addressed the National Association of Television Program Executives and emphasized that "the question of what is appropriate for family viewing necessarily must be judged in highly subjective terms" and that "the lack of an acceptable objective standard is one of the best reasons why — the Constitution aside — I feel that self-regulation is to be preferred over the adoption of inflexible governmental rules." Wiley spoke out again on February 13, 1975 in a speech before the Radio and Television Commission of the Southern Baptist Convention:
On February 19, 1975, the FCC submitted its Report to Congress. See Report on the Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C.2d 418 (1975). The Report recounted the longstanding public and congressional concern with the effects of television on young people, mentioned the growing number of complaints about violent and sexually-oriented programs filed with the Commission, and noted the receipt of various petitions to deny broadcast license renewals as well as petitions for rulemaking in the area of televised violence.
Id. at 419.
Id. at 419-20 (footnotes omitted).
The Report then outlined the actions taken by Chairman Wiley in his attempt to "serve as a catalyst for the achievement of meaningful self-regulation." Id. After noting the publication of network policy statements concerning program guidelines and the adoption of the proposed amendment to the NAB Television Code, the Report concluded that:
Id. at 422, 424.
On March 24, 1975, Chairman Wiley and members of his staff met with the President of the Association of Independent Television Stations (INTV) to discuss the application of the family viewing policy to independent stations.
On April 8, 1975, the NAB Television Board of Directors formally adopted the family viewing policy as an amendment to the Television Code.
In its discussion of the liability issues presented in the case, the district court reached the following conclusions which also rest on the bedrock principle already referred to.