Judicial Review of Regulatory Decisions: The Changing Criteria

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In 1981, in a case called FCC v. WNCN Listeners Guild, the Supreme Court put to rest a decade-long battle between the District of Columbia Circuit Court of Appeals and the Federal Communications Commission (FCC).1 On the surface, this struggle between the nation's second most important judicial tribunal and a federal regulatory agency entailed simply a conflict over radio station format changes. Could a broadcast licensee's decision to change a radio format (from, say, classical to rock and roll) be challenged before the overseeing regulatory agency? The FCC said no; the Court of Appeals said yes. The radio format cases all had the same essential fact situation. A radio station would be sold (in the official lingo, a radio license would be transferred), and the new owner would change the program format. Listening audiences rebelled, formed interest groups, and petitioned the FCC to void the license transfer or require that the new owner keep to the old format. The FCC invariably refused to hold hearings, arguing that the choice of program formats is one for the judgment of the broadcast licensee. The Court of Appeals consistently ruled otherwise, arguing in effect that the public interest in diverse voices required the FCC to take a hard look at any contested format change.