Action for Children's Television v. FCC, 999 F.2d 19 (1st Cir. 1993)

Action for Children's Television ("ACT") petitions for review of the decision of the Federal Communications Commission denying ACT's request that the FCC take action to combat "hidden commercials" on television that promote smoking. We deny the petition.

In 1966, acting on a private citizen petition, the FCC required broadcasters, under the "fairness doctrine," to air anti-smoking messages in response to advertisements by cigarette companies. See Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842, 90 S. Ct. 50, 51, 24 L. Ed. 2d 93 (1969).¹  In 1969, Congress enacted the Cigarette Labeling and Advertising Act ("the Cigarette Act"), 15 U.S.C. §§ 1331 et seq., which pertinently provided that "it shall be unlawful to advertise cigarettes or little cigars over any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." 15 U.S.C. § 1335.

In 1970, an organization called Action on Smoking and Health ("ASH") petitioned the FCC to require broadcasters to continue to air anti-smoking messages, despite the prohibition contained in the Cigarette Act, partly on the ground that the cigarette industry was using "hidden commercials" to circumvent the Act. The quoted phrase, as ACT uses it, refers to cigarette company sponsorship of sporting events during which the cigarette brand name or logo is displayed on signs or banners, which in turn are broadcast during televised coverage of these events, such as the Marlboro Grand Prix auto race and the Virginia Slims tennis tournament. The FCC denied the ASH request. The agency said that it found no hard evidence of the use of "hidden commercials" by the cigarette industry, and concluded that "if such abuses do occur ..., the appropriate action in such an eventuality would be to secure full and effective compliance with the 1969 law, and not to deal with it by offsetting anti-smoking messages." Formulation of Appropriate Further Regulatory Policies Concerning Cigarette Advertising and Antismoking Presentations, 27 F.C.C.2d 453, 458 n. 5 (1970).

In 1990, ACT filed with the FCC the petition at issue in this case. ACT claimed that there is now indisputable evidence that the cigarette industry is using "hidden commercials." According to the petition the Department of Justice has never initiated any enforcement proceedings under the Cigarette Act and therefore appears to have concluded that hidden commercials do not violate the statute, creating the need for FCC action. ACT requested the FCC to issue a "declaratory ruling" requiring licensees to air anti-smoking messages to offset the harm caused by the hidden advertising. Because the fairness doctrine was no longer in existence, ACT relied on the "public interest standard" set forth in the Communications Act of 1934 to govern the regulation and licensing of broadcasters. 47 U.S.C. § 303; see also id. §§ 307(a), 309(a), 310(d).

ACT's petition was denied by the Commission in August 1992. In re Petition For Declaratory Relief Regarding Anti-Smoking Messages Filed by Action for Children's Television, 7 F.C.C.R. 5466 (1992). The FCC said that this issue had been raised and resolved in the 1970 proceedings brought by ASH, and that ACT had presented nothing new. The Commission stated that it "continue[d] to believe that the Cigarette Act itself is properly looked to as defining both the conduct that is prohibited [with respect to cigarette advertising] and the remedies that are available to redress violations." Id. It is undisputed that the Department of Justice, not the FCC, is exclusively charged with enforcing the provisions of the Cigarette Act. See 15 U.S.C. § 1339. ACT now petitions this court for review.² 

An agency's decision not to undertake a new project, regulation, or enforcement action has been treated by courts as a somewhat unusual animal in the menagerie of agency actions that may be presented for judicial review. Of course, where there is a statutory obligation on the agency to take a relatively specific action, a court might easily conclude that it had both a standard to apply to a shirking agency and a duty to enforce the standard. More often, agencies make decisions not to act under rather broad statutory standards or, as is typically true of enforcement actions, under a general mandate to enforce the law.

In such cases courts have been reluctant to second-guess agencies when they decline to act. In some areas, paralleling prosecutorial decisions not to seek indictment, courts are reluctant to intervene at all; in others, they have recognized great discretion in the agency when it declines to act and required only minimal justification. See Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985); United Church of Christ v. FCC, 911 F.2d 813 (D.C. Cir. 1990). As the circuit most experienced in these matters said in another case, Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1046 (D.C. Cir. 1979) (citations omitted):

An agency's discretionary decision not to regulate a given activity is inevitably based, in large measure, on factors not inherently susceptible to judicial resolution--e.g., internal management considerations as to budget and personnel; evaluations of its own competence; weighing of competing policies within a broad statutory framework.

This court has made similar observations, see, e.g., Ward v. Skinner, 943 F.2d 157, 161 (1st Cir. 1991), and the standard of deference thus adopted controls this case. We need not conclude that the FCC's refusal to undertake a rule-making is automatically immune from judicial review, no matter how egregious the occasion or how troubling the agency's explanation. Here, the FCC's explanation is quite rational. In sum, the agency ruled that Congress provided a general ban on television cigarette advertising as part of a "comprehensive" federal program, 15 U.S.C. § 1331, and, if the ban is being infringed at the margins, Department of Justice enforcement is the preferable course. Given the FCC's broad discretion as to how to deploy its limited resources, this is an adequate explanation.

ACT says that the explanation is faulty to the extent that hidden commercials are a "loophole" in the law and thus beyond the reach of the Department of Justice.³  Even if this were so, it would not make the FCC's position unreasonable. Instead, it could rationally leave to Congress the task of adjusting the balance it struck in its "comprehensive" statute. Plugging loopholes might also be a rational goal for the agency (we have no occasion here to consider preemption arguments); but agency resources are limited and selecting which rational goals to pursue is part of the agency's function.

There is even less to ACT's alternative criticism that the FCC's decision in this case is inconsistent with its reasoning in its earlier decision declining to act on ASH's petition. ACT argues that the FCC there declined to act because it found a lack of evidence that hidden commercials were a significant problem and, ACT says, it has now provided the missing evidence. But the FCC went on to say in the ASH case that, if the problem proved real, the solution would be "to secure full and effective compliance with the 1969 law, and not to deal with it by offsetting anti-smoking messages." 27 F.C.C.2d at 458 n. 5. There is no inconsistency.

The petition for review is denied.