Before us is a motion filed by the Federal Communications Commission to stay the mandate to be issued by this court pursuant to its opinion and order on the merits of this case. The Commission suggests that immediate compliance with portions of our mandate would impose a "substantial burden" on its resources. Since the Commission is moving quickly to petition the Supreme Court for a writ of certiorari in this case, it asserts that such a burden ought not be required until the Supreme Court can act on its petition. The National Association of Broadcasters supports the Commission's motion, arguing that immediate issuance of our mandate will require NAB's members to begin costly efforts leading to divestiture. The Department of Justice does not oppose the motion, but does not actively support it either. The National Citizens Committee for Broadcasting opposes the motion insofar as it would reinstate the requirement that petitioners to deny individual license renewal applications allege a Sherman Act section 2 violation as a precondition for a hearing on the question of undue economic concentration. NCCB would also have us stay that part of our order which vacates Commission orders requiring divestiture in 16 so-called "egregious" cases. It is not clear, however, that NCCB or anyone else will seek further review of this segment of our opinion.
AMERICA, RESPONDENTS KSL, INC., INTERVENOR. AMERICAN
NEWSPAPER PUBLISHERS ASSOCIATION, PETITIONER v. FEDERAL
COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS KSL, INC., INTERVENOR. THE BROCKWAY COMPANY, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA, RESPONDENTS KSL, INC., INTERVENOR. GRAY
COMMUNICATIONS SYSTEMS, INC., PETITIONER v. FEDERAL
COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS KSL, INC., INTERVENOR
Nos. 75-1064, 75-1152 75-1289, 75-1379, 75-1386, 75-1387, 75-1388, 75-1567, 75-1614, 75-1618 1977.CDC.71
Date Filed: April 5, 1977; As Amended April 11, 1977.
On Motion for Stay of Mandate.
Bazelon, Chief Judge, and Wright and Robinson, Circuit Judges.
Before ruling on these motions, it is important to review the salient points of our March 1 opinion. By its order in the cross-ownership case, the Commission divided its regulatory province into three parts. New broadcast licenses would not be issued to any applicant which also owned a newspaper co-located with the proposed broadcast station's area of license. Present co-located newspaper-broadcast combinations, with 16 exceptions, were grandfathered and, in addition, the Commission took the view that further challenges to the renewal of these stations' licenses would have to meet tougher threshold requirements. Divestiture was ordered only where the sole broadcast station in a locality was owned by the sole daily newspaper in the same locality.
The gist of our opinion is that the lines thus drawn between future and present co-located combinations and between the 16 egregious cases and all other present co-located combinations were arbitrary and capricious. We first indicated that the Commission had authority to promulgate its prospective rules even though the record was inconclusive on the question whether actual "abuses" flowed from newspaper-broadcast cross-ownership. We agreed with the Commission that long-established principles indicated that it could act to increase the diversity of broadcast media voices even when there was no evidence that a lack of diversity was producing harmful side effects. We recognized that the Commission had consistently acted on this principle and had received the approval of the courts (including the Supreme Court on a number of occasions) for this policy approach. Indeed, in its instant motion, the Commission has not asked us to stay our mandate insofar as it approves the ...