In the Matter of POLICY STATEMENT OF
COMPARATIVE HEARINGS INVOLVING REGULAR RENEWAL APPLICANTS; In Re Petitions
Filed by BEST, CCC, AND OTHERS For Rulemaking To Clarify Standards in all
Comparative Broadcast Proceedings
RM-1551
FEDERAL
COMMUNICATIONS COMMISSION
24 F.C.C.2d 383
RELEASE-NUMBER: FCC 70-738
July
21, 1970 Released
Adopted July 8, 1970
JUDGES:
BY THE
COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER
JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*383]
1. On January 15, 1970 the
Commission released a Policy Statement on Comparative Hearings Involving
Regular Renewal Applicants, 35 F.R. 822, in which we set forth the approach we
intend to follow in comparative broadcast hearings where a new applicant
challenges a licensee seeking a renewal of license. The next day we released a Memorandum Opinion and Order adopted
January 14, 1970 in RM-1551, 21 FCC 2d 355, dismissing a petition for rule
making filed by BEST (Black Efforts for Soul in Television), CCC (Citizens
Communications Center), William D. Wright, and Albert H. Kramer in which the
petitioners proposed a new rule to clarify the standards in all comparative
broadcast hearings, including contests on renewal, along the lines of our 1965
Policy Statement on Comparative Broadcast Hearings, 1 FCC 2d 393. We now have
before us petitions for reconsideration of the January 15, 1970 policy
statement filed by BEST, et al. (BEST), and (jointly) by Hampton Roads Television
Corporation and Community Broadcasting of Boston, Inc. BEST has also filed a
petition [**2] "for repeal"
of the policy statement and a third petition, to reconsider the dismissal of
the BEST petition for rule making; these pleadings are based upon the memorandum
submitted with the petition to reconsider the policy statement. The petitions are opposed by several other
licensees, and replies have been received.
2. Our January 15, 1970 policy statement set
forth our proposed approach to the disposition of broadcast hearings involving
contests between new applicants and regular renewal applicants. It followed and supplemented our 1965 policy
statement on comparative broadcast hearings between new applicants for the same
facilities. Several of the objections
raised to the 1970 policy statement were treated in the opinion on BEST's
petition for rule making. Thus, as we
there made [*384] clear, the policy statement was not a rule
and did not have the force or effect of a rule; consequently, as we stated, "parties
are always free to argue in a hearing that a policy should be changed, or
should be applied differently because of the facts of their particular
situation." (21 FCC 2d at 356.) n1
Therefore, we must reject the contention that the adoption of the policy
statement contravenes [**3] the rule
making requirements of the Administrative Procedure Act. That statute specifically makes its notice
requirements inapplicable to "general statements of policy." 5
U.S.C. § 553(b). That the policy statement express our views
on matters of substance of course does not take it out of the statutory
exemption nor, in light of the further exemption for rules of procedure, does
the fact that it contains a procedural element. Substantive rules must be preceded by notice and comment. Substantive policy statements need not
be. While we understand that the
parties seeking reconsideration do not agree with our view that the policy
statement contains a unified expression of policies largely formulated in
earlier adjudicatory cases, their argument still misses the point that it is
only a policy statement -- subject to full reargument in individual cases --
with which we are dealing. Although, in
view of these considerations, we do not believe that a petition for reconsideration
properly lies under Section 405 of the Communications Act, it nevertheless
seems desirable to consider the contentions put before us. n2
n1 Even in the case of a rule,
parties are allowed to make a showing why the rule should be waived in a
particular case. See U.S. v. Storer
Broadcasting Co., 351 U.S. 192-204-205; Section 1.3 of our rules, 47 CFR
1.3. A fortiori, a party may show why a
policy should not be applied in his fact situation. In short, the touchstone for all Commission action remains the
public interest, and therefore, the Commission must be alert to a showing that
the public interest would be served by action different from that embodied in
any general rule or policy.
n2 Taking into consideration that we
are not adopting a binding rule and that these matters may be reopened in
particular cases, we do not believe that oral argument is either appropriate or
required. [**4]
3. It is urged that there is no support in fact
for the weight we have given to stability and predictability in station
operation. But we think it is amply
clear that in an industry requiring substantial investments, often with long
periods of financial loss, the public interest is served by a reasonable
assurance that good public service will constitute a protection against a
complete loss of the business. In this
connection, we point out that Hampton Roads and Community are incorrect in
their assertion that we have required a successful challenging applicant to
purchase the facilities of the incumbent licensee. We said that it would be expected that arrangements could and
would be made to purchase the facilities of the existing station, but we have
not imposed any such requirement. n3 It is no answer to this problem that many stations
are profitable, even highly profitable, for not only do many stations have
unprofitable operations for substantial initial periods, but for all stations
we can only expect the required initial and continuing investments if there is
a reasonable expectation, consistent with the overriding requirements of the
public interest, that the station will [**5]
be treated as a going business.
And, certainly, it would make no sense to apply the policy statement
only to losing operations and to deny its benefits to any existing station
which is operating in the [*385] black.
This would hardly be an inducement to good operation. In short, a contrary policy would, we
believe, result in a chaotic situation wholly at odds with the Congressional
purpose in creating this agency and its predecessor.
n3 We note also that purchase of
physical facilities will not provide recompense for operating costs.
4. As mentioned above, we have attempted to
provide stability only insofar as it is consistent with the paramount public
interest, and have given no advantage to any existing licensee who is qualified
but only barely so. We have given up
the fullest advantages of competition only in favor of continuance of a solid
measure of performance without substantial defects. We have, however, maintained the competitive spur of the
statutory scheme by not only permitting but encouraging competing challenge to
renewal applicants who are believed to have only minimally served the public
interest. And to make this policy
effective, we have precluded "upgrading," [**6] either after the
competing application is filed or during the third year of the license term because
of the imminence of public challenge. n4 This, we stress, is a reasonable balancing of two
considerations -- the desirability of stability and the competitive spur of
challenge -- which best serves the public interest. It is said, nevertheless, that any such balancing is forbidden by
the Communications Act as already interpreted by the courts, and that nothing
short of a full comparative hearing involving all factors will suffice. We do not so read the statute. The cases relied upon all deal with initial
applications and do not reach the question of whether it is permissible or, as
we believe, necessary to give special weight to a sold record of performance in
the renewal situation. The question is
one of substantive policy, since our instruction to the examiners on the
conduct of the hearing is peripheral procedure. If the policy is reasonable, and we have set forth our reasons
for adopting it, we see no merit to the contention that it creates a right in
the frequency or its use beyond the terms of the license (see Sections 301,
304, 307(d), 309(h), 47 U.S.C. 301, 304, 307(d), [**7]
309(h)). The assignment of
conclusive weight to a solid record of operation in the public interest is not
the grant of a right to future use based upon past occupancy of a channel. As we have made amply clear, past occupancy
by itself is irrelevant under our policy statement. But there is nothing in the Communications Act that prohibits the
assignment of different weights to different public interest factors in this
situation, or the assignment of conclusive weight to a factors in this
situation, or the assignment of conclusive weight to a factor we find to be
determinative in its relationship to the public's interest in future use of the
frequency or channel. While this policy
may eliminate a direct comparison between applicants on factors such as integration
of ownership with management and diversification of control of the media of
mass communications, it does not sanction a grant to any renewal applicant [*386]
who is disqualified in any respect, or in the face of a competing
challenger, who is not substantially serving the public interest. Barring an unusual showing, it eliminates a
comparison but does so upon a basis rooted in actual operation of the
facilities in question. The [**8] Constitution is obviously not affronted by
this policy if we are correct in our judgment that it is a policy reasonably
calculated to best serve the public's interest. National Broadcasting Co. v. United States, 319 U.S. 190. n5
n4 In this connection, we note that
our assignment and transfer forms require a showing as to the programming
performance of the assignor or transferor, when an assignment or transfer is
sought more than 18 months after the later renewal. This is intended to insure that the transferor has not ignored
his renewal commitments in anticipation of sale. Thus, we would not permit transfers during the last 18 months of
a license period where the transferor's operation raises a substantial question
of basic qualification because of a failure to adhere to promises (or of course
for any other public interest reason coming to our attention at any time). This is not new policy, cf. Jefferson Radio
Co. v. Federal Communications Commission, 119 U.S. App. D.C. 256, 340 F. 2d 781
(1964), but it seems desirable to reiterate it here.
n5 See also Hale v. Federal
Communications Commission, U.S. App.
D.C. , , F.2d (No. 22,751,
February 16, 1970), holding that issues of concentration of control applicable
to the industry as a whole and involving an overhaul of multiple ownership
policy, may appropriately be reserved for treatment in general rule making.
[**9]
5. We have carefully considered the arguments
contained in the petitions before us and we are not convinced that our
announced policy on comparative renewal proceedings is either illegal or unwise. Of course, those adversely affected may
raise any relevant contention in individual proceedings, where they will be
examined de novo. However, it should be
useful to all parties concerned to have the Commission set forth the overall
views to which its experience has led it.
Finally, we stress again what we said in concluding our 1970 statement:
In sum, we
believe that this is the best possible balancing of the competing aspects of
the public interest which are to be served in this area. However, the promise of this policy for
truly substantial service to the public will depend on the consistency and
determination with which the Commission carries out this policy in the actual
cases which come before it. Only if we
truly develop and hold to a solid concept of substantial service, will the
public derive the benefits this policy is designed to bring them. We pledge that we will do so, and in turn
call upon the industry and interested public to play their vital roles in the
implementation [**10] of this policy.
6. For the foregoing reasons, the petitions
before us ARE DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE,
Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
I dissent to the
denial of these petitions for reconsideration on three grounds: The
Commission's January 15, 1970 Policy Statement (1) violates Section 4 of the
Administrative Procedure Act (5 U.S.C. Section 553) or, at least, is an
abuse of agency discretion; (2) violates Section 309(e) of the 1934
Communications Act; and (3) violates the First Amendment to the United States
Constitution.
The
Administrative Procedures Act (APA) requires the Commission to follow certain
procedures (notification, opportunity to file comments, etc.) in all cases of
administrative "rule making." Section 2(c) of the APA defines a
"rule" as:
... the whole or
any part of any agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy or
to describe the organization, procedure, or practice requirements of any
agency...
Section 4(a) of the APA, however, exempt from rule
making:
...
Interpretative rules, general statements [**11] of policy, rules of agency organization, procedure, or practice...
[*387] The majority argues that the January 15,
1970 Policy Statement is an exempted "general statement of policy"
under Section 4(a), and not subject to the safeguards of Section 4. Although the legal precedent on this
question is by no means clear, I believe there are valid reasons for
disagreement.
The rule making
safeguards of the Administrative Procedure Act were clearly designed to limit
the discretion of federal agencies in their legislating function -- that is,
the adoption of substantive rules or general schemes of administration to
affect differing groups or individuals across-the-board. In delegating its legislative authority to
non-elected bodies of men not directly responsible to the electorate, I do not
believe that Congress intended to cast this and other agencies adrift on the
limitless sea of their own unbounded discretion, able to enact substantive
rules at will (under the guise of "policy statements") without due
consideration of interested parties' views.
This, at any rate, appeared to be the position of Attorney General
Francis Biddle who gave the following interpretation of "policy
statement" [**12] in a 1941 Report:
[Approaches] to particular
types of problems, which as they become established, are generally
determinative of decision... As soon as
the "policies" of an agency become sufficiently articulated to serve
as real guides to agency officials in their treatment of concrete problems, the
may advantageously be brought to public attention by publication in a precise
and regularized form. Report of the Attorney General's Committee on
Administrative Procedures, S.Doc. No. 8, 77th Cong., 1st Sess., pp. 26-27
(1941).
In other words, certain procedural
safeguards exist to protect the public in formal rule making and adjudication;
once law has been established through these procedures, however, the agency may
explain it to the public through "policy statements."
Procedurally, at
least, this Commission could have addressed the substance of its Policy
Statement through adjudicatory or rule making proceedings -- both of which
contain the safeguards of the adversary process. Arguably, however, it cannot do so without any procedural safeguards
at the time of adoption, as it has attempted here. Cf. Moss v. Civil Aeronautics Board -- F.2d -- (D.C. Cir., July
9, 1970). There [**13] must be some logical and legal
distinction between a "rule" and a "policy statement." An
administrative agency is apparently not free to characterize its action in any
way it sees fit:
The particular
label placed on it by the Commission is not necessarily conclusive, for it is
the substance of what the Commission has purported to do and has done which is
decisive. Columbia Broadcasting System v. United States, 316 U.S. 407, 416
(1942).
The appropriate distinctions may
well turn on whether the agency takes action affecting a charge in substantive
legal rights (through a rule on adjudication), or whether the agency's action
merely explains or interprets existing policies or decisions previously enacted
through proper legal procedures (a policy statement). Thus, the Commission can issue a "Public Notice"
through its Office of Information, explaining or summarizing the import of a
particular rule; but it cannot adopt that rule, without procedural safeguards,
merely by captioning its document a "Public Notice" and pretending
that no substantive change in the law is involved.
[*388]
The issue here, therefore, turns on whether the January 15, 1970 Policy
Statement effected a substantive change [**14]
in our comparative renewal standards.
I frankly do not think even the majority can seriously contend that the
Commission has not substantially changed its hearing procedures in comparative
renewals by its January 15, 1970 Policy Statement. We have designated many cases for comparative hearings since the
Hearst case, yet we have never even suggested to the Examiner that he first determine
whether the incumbent licensee "has been substantially attuned to meeting
the needs and interests" of the community. Indeed, we have recently reimbursed Voice of Los Angeles, Inc.,
for costs incurred during the initial portions of a comparative challenge to
the license of KNBC, Los Angeles, essentially on the ground that our January
15, 1970 Policy Statement came as an unannounced surprise to Voice, and that
given the change in policy it would be inequitable not to permit them to
withdraw. National Broadcasting Co.,
Inc. (NBC), FCC 70-691 (Docket No. 18602) (released July 7, 1970). Prior to January 15, 1970, no communications
lawyer or even FCC Hearing Examiner would have dreamed that a competing
application would not even be considered if the incumbent licensee met certain
programming standards. [**15] Accordingly, we must conclude that a
substantive change in law has been made, and the rule making procedures of the
APA should apply.
Even if action
by policy statement is a legally available option to the Commission in this
case, I believe the Commission has abused its discretion by so acting without
clearly articulated reasons. In
dismissing petitioners' request for rule making. Petitions by BEST, 21 F.C.C.2d 355 (1970), the Commission cited
S.E.C. v. Chenery Corp., 332 U.S. 194 (1947), for the proposition that the
Commission has the discretion to choose between adjudication and rule
making. The Commission, however, does
not attempt to explain why the use of a policy statement in this case was preferable
to the use of adjudication and rule making.
Rather, it simply asserts that it had the power to act without the usual
procedural safeguards. Even conceding
that the Commission has this power, it must exercise its discretion in a
rational way in an opinion explaining its reasoning. Even Chency recognized that agency discretion was limited by
certain fundamental standards of fairness.
The Commission's
Policy Statement decision cannot be considered "reasonable" or
"fair" [**16] -- particularly in view of the political
events surrounding its adoption.
Following the decision in WHDH, Inc., 16 F.C.C. 2d 1 (1969), the
broadcasting industry sought to obtain from Congress the elimination or drastic
revision of the comparative hearing procedure.
See, e.g., Hearings on S. 2004 [Orderly Renewals] Before the
Subcommittee on Communications of the Senate Committee on Commerce, 91st Cong.,
1st Sess. ["The Pastore Bill"] (Dec. 1, 1969). Although more than 100 Congressmen and 23
Senators quickly announced their support, a number of citizens groups testified
that S. 2004 was "back door racism" and would exclude minorities from
access to media ownership in most large communities (Black Efforts for Soul In
Television), would perpetuate excessive concentrations of control (National
Citizens Committee for Broadcasting), and would remove [*389]
"competition" from broadcasting and "freeze out every
underrepresented class in American Society" (American Civil Liberties
Union). See Hearings on S. 2004, supra.
The impact of
citizen outrage measurably slowed the progress of S. 2004, and many Senate
observers began to predict the Bill would never pass. Then, without formal rule making [**17] hearings, or even
submission of written arguments, the Commission suddenly issued its January 15,
1970 Policy Statement -- achieving much of what Congress had been unable or
reluctant to adopt.
There were many
parties who had invested substantial time and money fighting the threatened
diminution of their rights, and who no doubt would have opposed our January 15,
1970 Policy Statement on numerous grounds.
In challenging S. 2004, many of these parties claimed to represent the
interests of important segments of our population: the minorities, the poor,
and the disadvantaged. By refusing even
to listen to their counsels, this Commission reached a new low in its
self-imposed isolation from the people; once again we closed our ears and minds
to their pleas. See, e.g., National
Broadcasting Co., 20 F.C.C. 2d 58 (1969); KSL, Inc., 16 F.C.C. 2d 340 (1969);
Office of Communication of the United Church of Christ [WLBT-TV], -- F. 2d --,
No. 19,409 (D.C. Cir., June 20, 1969), and 359 F.2d 994 (D.C. Cir. 1966).
The majority
argues for the Policy Statement's validity by contending that its "only a
policy statement" which may be fully reargued in future cases when it is
applied. This argument [**18] will deter groups that otherwise might have
entered comparative contests. Between
WHDH, Inc. and our Policy Statement, a number of applicants filed competing
license challenges with the Commission.
To my knowledge, not one TV application has been filed since January 15,
1970 -- and one major applicant has even withdrawn on the basis of our Policy
Statement. See National Broadcasting
Co., Inc. (KNBC), FCC 70-691 (Docket No. 18602) (released July 7, 1970)9 In
addition, our Policy Statement will doubtless be applied to future cases
without exception. No man is likely to
reverse himself once he has announced his decision in public, and no one
seriously believes that applicants will be able to reargue the merits of our
January 15, 1970 Policy Statement and obtain an impartial and open-minded
reception. As in Moss v. Civil
Aeronautics Board, -- F.2d --, (D.C. Cir., July 9, 1970), the basic decisions
have been made ex parte in "closed sessions," and there is little
anyone can do to re-open them.
Finally, the
Commission's abuse of discretion becomes particularly severe in light of the
First Amendment questions discussed below.
Whatever discretion the Commission may have to choose [**19] various procedural modes in other
cases, that discretion must be narrowly limited where it results in a
curtailment of speech freedoms. Our
failure to follow normal rule making procedures, there fore, is an abuse of
agency discretion and cannot be justified by the principles of Chenery.
The January 15,
1970 Policy Statement also violates, in rather clear fashion, Section 309(e) of
the 1934 Communications Act. That
Section provides that if the Commission cannot find that the grant of any [*390]
particular license application will serve the "public interest,
convenience, and necessity," it must designate the application for "a
full hearing in which the applicant... shall be permitted to participate. c In other words, the Commission must either
grant a license application, or provide the applicant with a full hearing on
the merits. Thus, where an incumbent
licensee is challenged by an otherwise acceptable new applicant, Section 309(e)
bars rejection of the competing application without a hearing. Yet this rejection is precisely what will
happen under the Policy Statement when the Examiner finds the incumbent
"substantially attuned" to community needs and interests. In Ashbacker Radio [**20] Corp. v. FCC, 326 U.S. 327, (1945), the FCC
granted one of two mutually exclusive applications and designated the other for
hearing. The Supreme Court reversed,
saying:
We do not think
it is enough to say that the power of the Commission to issue a license on a
finding of public interest, convenience or necessity supports its grant of one
of two mutually exclusive applications without a hearing of the other. For if the grant of one effectively
precludes the other, the statutory right to a hearing which Congress has
accorded applicants before denials of their applications becomes an empty
thing. We think that is the case
here. (326 U.S. at 330.)
As Ashbacker said, "where two
bona fide applications are mutually exclusive, the grant of one without a
hearing to both deprives the loser of the opportunity which Congress chose to
give him." Id. at 333. Although Ashbacker involved competing applications
for a new facility, its reasoning is equally applicable here. Even Hearst Radio, Inc. (WBAL), 15 F.C.C.
1149 (1951), and Wabash Valley Broadcasting Corp., 34 F.C.C. 677 (1963), which
the Commission cite to support its January 15, 1970 Policy Statement, granted
both applicants a full [**21] hearing
on all issues involved. I believe
Congress intended in Section 309(e) to give new applicants with allegedly
improved programming proposals at least a hearing to prove their claims. The Commission's Policy Statement eliminates
this right.
Finally, I
believe the January 15, 1970 Policy Statement imposes burdens on freedom of
speech which are inconsistent with the First Amendment. Freedom of the press, for example, must do
more than protect newspaper publishers from government censorship; it must also
ensure that access to ownership of the print media is not blocked. Freedom of the press would not exist in this
country if the government, while refraining from direct censorship over
newspaper content, made it excessively difficult for people to own, control or
publish a newspaper. The Supreme Court
has on numerous occasions recognized the distinct connection between diversity
of ownership of the mass media and the diversity of ideas and expression
required by the First Amendment. See,
e.g., Associated Press v. United States, 326 U.S. 1, 20 (1945). And in Red
Lion, the court said:
It is the
purpose of the First Amendment to preserve an uninhibited marketplace of ideas
[**22] in which truth will ultimately
prevail, rather than to countenance monopolization of that market, whether it
be by the Government itself or a private licensee. Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 390 (1969) (emphasis added).
[*391]
Although the Commission's Policy Statement is ostensibly grounded in
economic considerations, it undeniably impedes access to ownership of the
broadcast media, and is therefore deeply imbued with First Amendment
considerations. Upon review of agency
and Congressional action, the Supreme Court will generally pay great deference
to administrative and legislative expertise and experience in matters involving
economic regulation, see e.g., Williamson v. Lee Optical of Oklahoma, 348 U.S.
483 (1955); but it has clearly warned that "[there] may be narrower scope
for operation of the presumption of constitutionality when legislation appears
on its face to be within a specific prohibition of the Constitution, such as
those of the first ten Amendments...." United States v. Carolene Products
Co., 304 U.S. 144, 152 n. 4 (1938). Because the First Amendment freedoms of
speech and the press occupy a "preferred position" in the spectrum of
constitutionally guaranteed [**23]
liberties, Kovacs v. Cooper, 336 U.S. 77, 88 (1949), see Saia v. New
York, 334 U.S. 558, 562 (1948); Thomas v. Collins, 323 U.S. 516, 529-30 (1945);
United States v. Cruickshank, 92 U.S. (2 Otto) 542, 552-53 (1876), the
government must prove that a "compelling," N.A.A.C.P. v. Button, 371
U.S. 415, 438 (1963); Sherbert v. Verner, 374 U.S. 398, 403 (1963), or
"paramount," Thomas v. Collins, 323 U.S. 516, 530 (1945),
governmental interest exists to justify restrictions upon First Amendment
freedoms.
I think it is
obvious that the Commission has made no "compelling" or
"paramount" showing of necessity for the doctrines adopted in its
January 15, 1970 Policy Statement. We
have taken no hard economic evidence on the issue; we have consulted directly
with neither licensees nor the public on this issue; and we have considered no
alternatives to this scheme of regulation.
The Supreme
Court has also indicated in First Amendment cases that legislative bodies must
use "less drastic means" of regulation whenever possible to create
the least interference with individual liberties, E.g., United States v. Robel,
389 U.S. 258, 268 (1967); Shelton v. Tucker, 364 U.S. 479, 488 (1960); see
generally, [**24] Note, Less Drastic Means and the First
Amendment, 78 Yale L.J. 464 (1969); Wormuch & Merkin, The Doctrine of the
Reasonable Alternative, 9 Utah L. Rev. 254, 267-93 (1964). If the Commission is
concerned that the scheme of competitive applications established by Congress
in 1934 is unduly severe on the broadcasting industry, and that "stability
and predictability in station operation" is needed to safeguard its
"financial investments," then there are clearly "less drastic
means" for accomplishing this goal than eliminating altogether potential
licensees who might better serve their communities. The FCC, for example, might give losing incumbent licensees a tax
certificate entitling it to involuntary conversion treatment under Section 1033
of the Internal Revenue Code. Another
possibility would be to require the winning applicant to reimburse the losing incumbent
for the fixed costs of his investment -- or perhaps even his programming
investments during the past two or more years.
The point, simply, is that there are any number of alternative ways to
increase stability in the broadcast industry without substantially impeding the
access of various groups to ownership.
The importance
[**25] of the First Amendment in this
proceeding is three fold: [*392] First, the restrictions the Commission has
placed on entry into the broadcasting field may well violate the standards of
the First Amendment; second, the significant involvement of First Amendment
issues in the comparative renewal procedure places on this Commission a greater
burden of justifying its action than it has met; and third, the First Amendment
considerations should limit the discretion of this agency to adopt substantive
rules without the safeguards of the Administrative Procedure Act. We may be able to justify purely economic
regulations by our alleged fund of "accumulated experience"; but we must
do more when we curtail access to media ownership. We must demonstrate a "compelling" need for these
regulations, and that there are no "less drastic means" available to
us. This we have clearly failed to do.