Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
Monroe Communications Corporation petitions this court to issue a writ of mandamus directing the Federal Communications Commission to act on certain matters relating to a comparative license renewal hearing to which Monroe is a party. The writ of mandamus is available only in exceptional circumstances, and we hold the delay at issue here is not so great as to justify that response. However, the presence of seemingly uncontradicted allegations of bad faith on the part of the FCC lead us to retain jurisdiction of the case pending a final resolution of the comparative proceeding.
Video 44 has held the license to operate Chicago's UHF television channel 44 since 1970. During that tenure, channel 44 changed from a conventional UHF station broadcasting a variety of public affairs, sports, children's, and religious programming into a subscription television ("STV") service — available during most hours of the day only to those who obtain a decoder to unscramble the over-the-air signal — carrying virtually nothing but entertainment programming. In re Video 44, 102 F.C.C.2d 419, 456-57 (1985) ("Initial Decision"). After Video 44 filed an application for renewal of its license, see 47 U.S.C. § 307(c) (1982), Monroe, in November of 1982, filed a competing application for the right to operate on Video 44's frequency. The Administrative Law Judge held a comparative renewal hearing on these mutually exclusive applications in December of 1983.
The Administrative Law Judge released the Initial Decision a little over a year later, on February 21, 1985. As a threshold matter, the ALJ considered whether STV stations should be subject to the same requirements facing other television broadcast licensees. He concluded that "subscription television licenses [sic] have an obligation to the public that is no less than the obligation of conventional television licensees." Initial Decision, 102 F.C.C.2d at 461. The ALJ then held that Video 44's past performance entitled it to no renewal expectancy — that preference accorded incumbent licensees for past programming merit, see Central Fla. Enter. v. FCC, 683 F.2d 503, 506 (D.C.Cir.1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983). Accordingly, he compared Video 44 and Monroe using the standard criteria applied to new applicants for a license, and determined Monroe to be superior. Initial Decision, 102 F.C.C.2d at 462-63.
Video 44 asked the full Commission to delete the obscenity issue. The Commission directed the ALJ to suspend proceedings and, on April 16, 1986, issued a memorandum opinion addressing both issues. It ruled that STV operators were to be judged by "essentially" the same renewal standards as those applied to a conventional licensee. In re Video 44, 103 F.C.C.2d 1204, 1207-08 (1986) ("First Commission Decision"). The Commission further held that, although consideration of the obscenity issue was consistent with existing precedent, the FCC should not "attempt to determine in the first instance whether material is obscene, but rather, should defer to local authorities," since the Supreme Court's criteria for obscenity rely on local community standards. Id. at 1210. See generally Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The Commission concluded that it would thenceforth consider allegations of obscenity only if the licensee had been convicted of violating 18 U.S.C. § 1464 (1982) (proscribing the transmission of obscenity or indecency), First Commission Decision at 1210-11, and the Commission accordingly deleted the obscenity issue and returned the matter to the Review Board.
On May 19, 1986, Monroe filed with the Commission a petition for reconsideration of that portion of the First Commission Decision deleting the obscenity issue. In September of that year the Review Board announced it would hold the matter in abeyance pending Commission action on that petition. In October, pursuant to 47 C.F.R. § 0.362(b) (1986), which allows any party to a proceeding to ask the full Commission to decide a matter on which the Review Board has failed to act within 180 days of the Initial Decision's issue, Monroe moved that the Commission resolve all outstanding issues in the proceeding, arguing that the First Commission Decision in April, returning the matter to the Review Board, began the 180 day period.
In April 1987, despairing of further Commission action, Monroe filed a petition for a writ of mandamus in this court.
Mandamus is an extraordinary remedy, warranted only when agency delay is egregious. See TRAC, 750 F.2d at 79; Potomac Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C.Cir.1983). Delay is measured by a "rule of reason," informed whenever possible by discernible congressional expectations, respecting the pace at which proceedings should advance. The reasonableness of a delay depends in part on the potential impact of any attempt to accelerate the progress of the matter in question on other agency activities of equal or higher importance, as well as on the nature of the interest involved. TRAC, 750 F.2d at 80. Monroe concedes the interests at stake here are commercial, not directly implicating human health and welfare,
Monroe notes first that 47 U.S.C. § 155(d), the FCC's organic statute, establishes as an "objective" the issue of a final decision within six months of the close of the initial hearing; at this writing, the Initial Decision is thirty-five months old. With respect to rehearings — perhaps the chief cause of delay here — the Senate Commerce Committee has stated that ninety days "should be clearly sufficient to act on any petition for rehearing." S.REP. No. 576, 87th Cong., 1st Sess. 7 (1961). This reconsideration took twenty months. Finally, the entire renewal proceeding, aimed at awarding a five-year license, 47 U.S.C. § 307(c), has gone on for more than five years.
With respect to the obscenity issue, Monroe points out that, within months of the First Commission Decision, the FCC sent letters of inquiry regarding allegations that broadcasters — not convicted under 18 U.S.C. § 1464 — had transmitted obscene or indecent material. In April 1987, the Commission issued three memorandum opinions (the "Indecency Actions," reported beginning at 2 F.C.C.2d 2698 (1987)) confirming it would investigate such allegations in the first instance. Monroe observes that the FCC represented to this court in a proceeding related to the Indecency Actions that various petitions for reconsideration in the Indecency Actions could be resolved in five months, argues that the Indecency Actions involve the same issue as the petition for reconsideration in this case, and concludes that the FCC has all but admitted that the priority properly accorded Monroe's petition makes twenty months an unreasonable delay.
To be sure, an undesirably large amount of time has passed during this proceeding; the three years of administrative limbo following the Initial Decision have benefited neither the parties nor the public.
On the other hand, motion is not necessarily the same thing as progress — as the protagonist of "Charlie on the MTA" well knew — and we are troubled by Monroe's suggestion it is merely being taken for a ride. It alleges that the FCC has acted in bad faith; that it harbors an institutional antipathy toward comparative renewal proceedings that will cause it to delay in any way possible consideration of the transfer of a broadcast license from one holder to another.
The FCC has declined to rebut the allegation squarely, replying only that the contention "runs to the merits of the Commission's actions, not to the issue of unreasonable delay." But this answer, it seems to us, is unsatisfactory. The charge that the FCC never intends to resolve the issue at all is something quite different from a suggestion that the Commission has, out of bias, improperly ruled in a comparative proceeding; the latter sort of malfeasance would create a final, reviewable order, while delay could continue indefinitely. See TRAC, 750 F.2d at 76. Therefore, while mandamus is not warranted — indeed, the facts of this case fall so short of egregious
* * * * * *
Accordingly, we order that the court's mandate issue forthwith, and that the record in this proceeding be remanded to the Commission. Until the time of the final order awarding the license in question, Monroe may petition this court for appropriate relief in the event the FCC fails, absent a good faith reason, to adhere substantially to the schedule it set for itself by its representations to us through counsel. See supra note 5.
It is so Ordered.