National Association of Independent Television Producers Anddistributors, Petitioner, v. Federal Communications Commission and the United States Ofamerica, Respondents,westinghouse Broadcasting Company, Inc., Intervenor, 516 F.2d 760 (D.C. Cir. 1975)

In May 1970, in response to increasing network domination of television, the Federal Communications Commission enacted the Prime Time Access Rule (PTAR).¹  The rule required that licensees in the nation's fifty largest metropolitan areas broadcast independently produced programming during at least one of the four hours of evening viewing designated "prime time." A corollary, the "off-network rule,"²  specified that programs previously aired by networks could not be used to satisfy the nightly PTAR requirement. Though previous attempts to revise the rule have been frustrated by court action, a modified version designated "PTAR III" is presently scheduled to take effect on September 8, 1975.³ 

Xerox Corporation acquired a license to show Alistair Cooke's America series in the United States. The license included the first two complete showings of the series. Because the first presentation, during the '72-'73 television season, fell in the 10:00-11:00 P.M. time slot, Xerox sought to rebroadcast the program the next season at an earlier hour in order that it might reach a substantial audience of schoolchildren. To facilitate rebroadcast in an earlier time slot, Hughes Television Network and Needham, Harper and Steers Advertising, Inc. (Hughes), agent for Xerox, petitioned the FCC for waiver of its off-network rule. Hughes conceded that licensees were free to show America at any hour they desired, simply by preempting regular network shows, but argued that waiver would induce licensees in the top fifty markets covered by PTAR to carry the program. Hughes asserted that because the show was independently owned and produced, and because it was universally acknowledged to be of unusual educational merit, waiver was justified.

Petitioner National Association of Independent Television Producers and Distributors (NAITPD) opposed Hughes' request, joined by intervenor Westinghouse Broadcasting Company, CBS, and Metromedia Producers Corporation. These parties objected to the proposed waiver on four grounds: (1) that it undermined the avowed purpose of the rule, the guarantee to independent producers of a significant and ascertainable amount of air time;⁴  (2) that it was unnecessary for rebroadcast of the series; (3) that FCC endorsement of the program for the reason that it was "instructive" rather than "entertaining" would involve the agency in a morass of subjective judgments for which it had formulated no standards and which it had strenuously been urged to eschew in prior rulemaking proceedings; and (4) that administrative favoritism toward programs based on quality or content posed grave First Amendment questions.⁵  Hughes filed a "Reply to Comments and Oppositions" in which it asserted that the argument that the America waiver was unnecessary "ignore(d) the realities of program distribution and clearance," which dictated that "without the added incentive of a prime time access waiver, America will be unable to compete with entertainment programs for clearance by stations in early prime time."⁶  Moreover, Hughes insisted that it had not "asked the Commission to make its own determination" regarding the quality or importance of the America series, but had merely asked the Commission not to "close its eyes" to the judgments of educators and critics.⁷ 

The FCC determined in March 1973 to hold the Hughes request in abeyance pending final resolution in Docket No. 19622 (In re Consideration of, and Possible Changes in, the "Prime Time Access Rule.") ⁸  No resolution had been achieved at the start of the '73-'74 television season, and thus the FCC acted upon Hughes' request and granted the waiver. By that time arrangements for broadcast of the show outside prime time hours or in lieu of network programming had been made in all but four of the fifty markets governed by PTAR. According to a condition in the Commission's order, America was broadcast with a waiver in those four metropolitan areas and according to prior arrangements in the other cities.

Pursuant to 47 U.S.C. § 402(a)⁹  incorporating by reference the general review provisions of 28 U.S.C. § 2341 et seq.,¹⁰  NAITPD now petitions this court to reverse the FCC's decision, to direct the agency to fashion an appropriate remedy to correct "specific detriment" allegedly caused by the waiver, and to set aside its order as precedent. In effect, we are asked to declare that a waiver granted for the reasons the FCC offered in this case is contrary to law, and to rule that Hughes' request for a new off-network waiver to facilitate rebroadcast of America during the '75-'76 season should be denied. Because intervening events have virtually negated the possibility that the administrative decision NAITPD challenges will recur, we find the controversy moot and decline to reach the merits.

In January 1975 the FCC issued its Second Report and Order¹¹  in Docket No. 19622, an interminable proceeding dedicated to consideration of possible modification of PTAR. That Report and Order produced PTAR III, a creature strikingly similar to the original rule adopted in 1970 but different in one respect critical to this lawsuit: PTAR III exempts from the three-hour per evening limitation on network programming certain species of programming, including the broad category of "documentary programs." The Commission specifically noted that America would come under this rubric,¹²  obviating a waiver request to promote broadcast of the series during prime time. In April 1975 the Second Circuit upheld this aspect of PTAR III in the face of NAITPD's argument that FCC sponsorship of vaguely defined types of educational programs involves impermissibly value judgments and violates First Amendment freedoms.¹³  NAITPD moved the Second Circuit to postpone the effective date of the new rule to afford adequate notice to parties who must gauge the availability of air time for their respective programs, as that court had done once before.¹⁴  The Second Circuit has denied the motion, NAITPD v. FCC, No. 75-4021, filed June 17, 1975, and thus the waiver grant NAITPD contests here cannot recur after September 8, 1975.

Until May 27, 1975, the possibility existed that the FCC might grant a new America waiver before PTAR III took effect. On that date the Commission released a Memorandum Opinion and Order¹⁵  rejecting a request by Time-Life Films, Inc., co-producer of the America series and current holder of the right to display it in this country, that existing prime-time limitations be waived to aid broadcast of the program before the 1975 Fall television season commenced. The Commission's decision was predicated in part on NAITPD's argument, also offered here, that precisely because of the importance, quality, and timeliness of the program, "waiver is not necessary for (its) presentation."¹⁶  The Commission also heeded the Second Circuit's admonition that it should avoid standardless ad hoc judgments, particularly those apparently involving the discrimination of "meritorious or desirable programming."¹⁷ 

Thus the dispute between NAITPD and the Commission has ceased to be a live controversy. Neither a declaration that the waiver for the '73-'74 season was improper nor a prohibition against such decisions in the future would serve any purpose, for the owners of America have been ordered to abide by the existing off-network provision until September 8, 1975, and granted an explicit exemption from it after that date. Because the case is moot, we are without power to test the legality of the Commission's decision below. North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971); Hall v. Beals, 396 U.S. 45, 49, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969). Thus, according to the mandate of United States v. Munsingwear, 340 U.S. 36, 71 S. Ct. 104, 95 L. Ed. 36 (1950), we dismiss this appeal and remand to the Commission in order that it may vacate its order.

Appeal dismissed.