Television v. Fed. Communications Comm'n, 564 F.2d 458 (D.C. Cir. 1977)

Jurisdiction in this court derives from section 402(a) of the Communications Act of 1934, 47 U.S.C. § 402(a) (1970), and 28 U.S.C. § 2342(1) (Supp. V 1975), petitioner’s interests being adversely affected by, and this appeal brought to determine the validity of, a final order of the FCC.

Regulations governing rulemaking proceedings before the Commission are codified at 47 C.F.R. § 1.400 et seq. (1976).

In its brief, ACT claims that 5,000 letters and memoranda were filed in support of its proposals, Petitioner’s Brief at 9, whereas the FCC apparently received only 2,000. See J.A. 117. In any case, only a few letters from non-industry parties opposed ACT’s proposals, generally on the ground that proper parental control over their children’s viewing habits would suffice. See id. ACT subsequently filed two empirical studies of children’s programming and advertising practices and detailed reply comments to opposing arguments.

In opposing ACT’s petition, industry members raised a number of basic objections: (1) that the various proposals, if adopted, would violate both the first amendment rights of the licensees and the censorship prohibition of 47 U.S.C. § 326 (1970); (2) that they were inconsistent with the FCC’s long-standing policy of leaving programming decisions to the judgment of the licensee so long as those decisions were consistent with the public interest; (3) that they were practicably unworkable because of the difficulty in defining and classifying children’s programs; (4) that prohibition of commercial sponsorship would only result in a self-defeating reduction in children’s programming for want of adequate funding; (5) that self-regulation by means of the NAB Code had been and would continue to be fully capable of dealing with any problems in this area; and, finally, (6) that the FCC should not endeavor to substitute its judgment for that of children’s parents. Government’s Brief at 5 n. 1; J.A. 117. Several of these arguments ultimately were adopted by the Commission, itself, as justification for its decision not to adopt any of the proposed rules for the time being.

The FCC specifically stated in accepting ACT’s petition for rulemaking: *46328 F.C.C.2d at 370-71; J.A. 118 (emphasis added).

The FCC solicited comments on the following general questions: 1. What types of children’s programs not now available do parties believe commercial TV stations should present? 2. To what extent, generally and with respect to particular programs and types of programs, does “children’s programming” have benefits to children beyond the fact that it holds their interest and attention and thus removes the need for other activity or parental attention? 3. What, generally speaking, is a definition of “children’s programming” which could serve for the Commission’s use in this connection? To what extent do children, particularly in the higher age groups mentioned by ACT, view and benefit from general TV programming? 4. What restriction on commercials short of prohibition — e. g. on types of products or services, what can be said, number, divorcement from program content, etc. — would be desirable? Comments should take into account in this connection the provisions of the NAB Television Code and its guidelines. 5. To what extent should any restriction on commercial messages in children’s programs also apply to such messages adjacent to children’s programs? Id. at 371-72; J.A. 120.

The wide-ranging inquiry of the FCC’s rule-making proceeding in Docket 19142 did npt include the additional related issues of violence and obscenity in television programming generally. These problems, however, were to be considered by the Commission in a report to the House and Senate Committees on Appropriations, due Dec. 31, 1974. See J.A. 2 n. 1.

ACT’s argument in support of this position was, in its own words, as follows: Petitioner’s Brief at 11.

Potential congressional action during this period also may have fanned the flickering flame of industry reform. In early 1974, for instance, three separate committees of Congress questioned the FCC’s Chairman about his agency’s dilatoriness in acting upon ACT’s rulemaking petition. See id. at 15 n. 18.

Approximately 400 commercial television licensees, or about 60% of all such stations, subscribed to the NAB Code during this period. Id. at 41 n. 61.

These reforms were paralleled to some extent by advertisers themselves. Three large pharmaceutical companies, for instance, announced during 1972 that they intended to stop advertising their drugs during children’s programs. Furthermore, in May of 1974, representatives of the advertising industry set up a children’s advertising unit within the National Advertising Review Board, although apparently no specific rules were ever adopted nor any other self-regulatory action ever taken. See id at 14 & n. 17.

The NAB Code defines children’s programs as those broadcast at “hours other than prime time in which programs initially designed primarily for children under 12 years of age are scheduled.” Id. at 16 n. 22.

The INTV is comprised of some 50 independent television stations. Unlike the NAB, it has no Code. Self-regulatory powers are limited to the making of recommendations to its members. See id. at 42.

The Commission recognized that, of course, not every commercial television licensee belonged to either the NAB or the INTV. It emphasized, however, that “the Commission expects all licensees to make a good faith effort to bring their advertising practices into conformance with the policies established herein over the period preceding January 1, 1976.” 50 F.C.C.2d at 14 n. 13; J.A. 19 n. 13.

Pursuant to this announcement in the Report, the FCC amended its broadcast license renewal form to acquire information on licensees’ commercial practices after Jan. 1, 1976 on programs designed for children. Memorandum Opinion and Order re Renewal Form Amendments, 53 F.C.C.2d 161 (1975).

All seven FCC Commissioners concurred in the result reached in the Report, although three issued separate statements. 50 F.C.C.2d at 1; J.A. 1, 52-63. Commissioner Hooks concurred "in essence” with the Report, but would have set a lower limit of advertising minutes per hour than that established by either of the two industry associations and would have required that commercials be “clustered” before and after children’s programs to avoid undue suggestiveness. 50 F.C.C.2d at 35-36; J.A. 54-55. Commissioner Washburn also would have clustered commercials. Id at 36; J.A. 55. Commissioner Robinson, on the other hand, believed that “the Commission has gone about as far as appropriate, in light of the evidence presently before [it] and mindful of the ever-present dangers that lurk in the area of program regulation.” Id at 37; J.A. 56. He also suggested that “we candidly acknowledge that within proper limits [advertising] is not a sin, and certainly not a crime, to try to influence the consumption desires of children.” Id at -39; J.A. 61.

Specifically, petitioner urged the Commission to adopt a rule requiring broadcasters to carry 12 hours of children’s programming per week, of which 20% would be dedicated to education and instructional programs. See J.A. 71.

In this respect the policy embodied by § 405 is congruent with that underlying the broader non-statutory exhaustion of administrative remedies doctrine which a reviewing court would confront even in the absence of any statutory exhaustion requirement. As Chief Justice Vinson explained in Unemployment Compensation Comm. v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 91 L.Ed. 136 (1946): Id at 155, 67 S.Ct. at 251. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952); Joseph E. Seagram & Sons, Inc. v. Dillon, 120 U.S.App.D.C. 112, 114, 344 F.2d 497, 499 (1965).

Congress has not specified the method by which the Commission must acquire and assess the data relevant to its determination of what is in the public interest, beyond the procedural requirements of the APA. Certainly it has not seen fit to give interested persons the right to an “adjudicatory” hearing in proceedings such as Docket 19142 where the determinations to be made are essentially legislative and the interests involved are both complex and widely disparate. Compare 5 U.S.C. § 553(c) (Supp. V 1975) with United States v. Fla. East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972) and 47 U.S.C. §§ 303(r), 403, 409(c) (1970). If it had, petitioner’s opportunity for participation of course would be much greater, and would include, we should think, the opportunity to rebut directly the specific proposals offered by NAB officials. This is not to say that the well-recognized distinction between informal rulemaking and adjudications or formal rulemaking “on the record”, see Fla. East Coast Ry., supra, 410 U.S. at 245, 93 S.Ct. 810, is an appropriate guide to administrative decision-making in every case. Occasionally it is not. In Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973), for instance, we recognized that informal rulemaking under § 553 might require certain adversary procedures akin to adjudications or formal rulemaking when circumstances, such as often obtain in rate-making cases, made them appropriate. On other occasions, we also have required more limited procedures in addition to those specified in § 553. See, e. g., International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973) (requiring public oral argument); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972) (requiring a statement of reasons for rule); Walter Holm & Co. v. Hardin, 145 U.S.App.D.C. 347, 354, 449 F.2d 1009, 1016 (1971) (requiring public oral argument). See generally Williams, "Hybrid Rulemaking” Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U.Chi.L.Rev. 410 (1975); Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782, 790-801 (1974). Certainly where a balancing of various components of the public interest is a necessary condition for the grant of a particular application, something more than the minimal notice and comment procedures of § 553 may well be called for, see, e. g., Independent Bankers Ass’n v. Bd. of Governors of the Fed. Res. Sys., 170 U.S.App.D.C. 278, 290, 516 F.2d 1206, 1218 (1975), but this will seldom be true where the necessary balancing is undertaken in making a quasi-legislative policy of broad applicability.

See, e. g., Report and Statement of Programming Policy, 44 F.C.C. 2303, 2308-09, 2312-13, 2317 (1960); Public Service Responsibilities of Broadcast Licensees (“Blue Book”) 55-56 (1947).

See note 19, supra. Since the Commission clearly was not engaged in a quasi-judicial function, where trial-type procedures would be appropriate and the substantial evidence test applied upon judicial review, some kind of hearing was not necessary even though various facts germane to the general policy determinations under consideration in fact have been the object of some disagreement. See Washington Utilities & Transp. Comm’n v. FCC, 513 F.2d 1142, 1165 & n. 31 (9th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

Chrysler Corp. v. DOT, 472 F.2d 659, 669 (6th Cir. 1972) (agency may “act on the basis of date contained in its own files or on its own views or opinions”); Consumers Union v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2d Cir. 1974) (it may be “sufficient that the regulations [are] supported by evidence in the Commission’s files, or even by its experience”); see Flying Tiger Line, Inc. v. Boyd, 244 F.Supp. 889, 892 (D.D.C.1965). With this doubtlessly in mind, the FCC took care to point out in its Notice of Inquiry and Proposed Rule Making that it might “also take into account other relevant data before it, in addition to the specific data invited by this Notice.” 28 F.C.C.2d at 372-73; J.A. 121.

Section 553(c) provides that “[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553(c) (Supp. V 1975) (emphasis added).

As a practical matter, of course, a reviewing court generally will have a less substantial record to review in cases of informal rulemaking than it will when faced with administrative action undertaken upon a formal hearing held pursuant to §§ 556 and 557. Consequently, a reviewing court must perforce rely even more on an agency’s statement of reasons, if it is not effectively to abdicate its proper role in the administrative process. On the other hand, the sufficiency of an agency’s “statement” must also be gauged in light of the court’s more limited scope of review in passing upon informal rulemaking. The reviewing court’s legitimate function in such cases is limited for the most part to assuring that an agency, “given an essentially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future.” Automotive Parts & Accessories Ass’n v. Boyd, 132 U.S.App.D.C. 200, 208, 407 F.2d 330, 338 (1968).

In Ruckelshaus this court held that both the legislative history and statutory scheme of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 135 et seq. (1970), require the EPA Administrator to issue a notice of cancellation and thereby to commence administrative proceedings whenever he finds that a substantial question exists concerning the safety of a registered pesticide. 439 F.2d at 594. Since the Administrator had refused to initiate the required proceedings, though he had independently concluded that the use of DDT should be reduced as much as practicable during the continuation of further studies, we were fully justified in admonishing that Id. Likewise, in a case emphasized by petitioner, Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891 (1970), we were faced with a demonstrably *473different situation from the one now confronting us. A number of congressmen petitioned this court to review the lawfulness of certain fare increases filed by the airlines with the Civil Aeronautics Board (CAB). The rate-making proceeding at issue involved ex parte meetings with airline representatives followed by what was alleged to be nothing more than a pro forma public hearing limited to oral argument. Id. at 152, 430 F.2d at 893. We found that the CAB’S order, setting forth a rate-making formula for increased fares which the Board “propose[d] to accept”, id. at 155, 430 F.2d at 896, resulted in Board-prescribed rather than carrier-proposed rates, since “the pressures on the carriers to file rates conforming exactly with the Board’s formula were great, if not actually irresistible.” Id. at 156, 430 F.2d at 897. As such, we held the Board’s action invalid for failure to comply with the statutory notice and hearing requirements of Federal Aviation Act § 1002(d), 49 U.S.C. § 1482(d) (1964), and, by necessary implication, for ignoring the rate-making criteria specified in § 1002(e) of the Act, id. § 1482(e). Clearly, then, Moss presents a very different case from the one sub judice. The only statutory procedural requirements applicable to the FCC’s informal rulemaking in this case are to be found in the APA and its own regulations, none of which petitioner has specifically identified as having been violated.

We note that section 4 of the Government in the Sunshine Act, Pub.L. No. 94-409, 90 Stat. 1241 (Sept. 13, 1976), amends § 557 of the APA, 5 U.S.C, § 557 (1970), so as expressly to prohibit ex parte communications of the kind engaged in by NAB officials here, but only whenever a hearing is required to be conducted in conformity with APA § 556, id. § 556. Such a hearing was not required in the informal rulemaking proceedings in Docket 19142, however. We express no view as to the possible applicability of section 3(a) of the same Act, amending title 5 of the Code to include new § 552b on open meetings, to these discussions between industry representatives and Chairman Wiley, except to note that these discussions would appear not to fall strictly within the Sunshine Act’s definition of “meeting”, see 5 U.S.C. § 552b(a)(2), and that, in any event, these new procedural requirements have only become effective after the contacts in question.

Petitioner also asserts that the FCC abused its authority by exploiting its sensitive relationship with broadcast licensees to coerce them into a measure of self-regulation, just as it had in the “family viewing hour” programming policy area. Petitioner’s Brief at 26-27. In Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. 1064 (C.D.Cal.1976), a district court recently held that the adoption of the family viewing hour policy by the television networks and the NAB at the behest of the Commission violated the APA because the Commission ignored § 553’s requirement that interested persons have an opportunity to participate in the policy-making process, whether they be members of the public or representatives of the regulated industry. 5 U.S.C. § 553 (Supp. V 1975). Id. at 1151. In the case sub judice, however, we have concluded that the FCC substantially complied with the procedural requirements of § 553, and we do not consider that the meetings between the FCC’s Chairman and NAB representatives compel a contrary conclusion. If we were to accept the proposition implicit in petitioner’s argument — that the FCC may never resort to discussions with members of the industry in a general effort to have its regulatees conform to their public service obligations — the Commission would have little choice but to abandon any reasonable expectation of salutary self-regulation and to affirmatively regulate throughout the areas of children’s programming and advertising. The problem, of course, is necessarily a matter of degree, and an agency may well be found to have abused its authority were it to employ overbearing “jawboning” or “arm-twisting” tactics. In the Writers Guild decision, the Commission was held to have overstepped its authority when the Commission *474Chairman threatened “regulatory actions up to and including the relicensing process . . if broadcasters did not reduce substantially the amount of violent and “adult” material shown during evening hours. Id. at 1149. At least in the case now before us, however, we are satisfied that the Commission did not coerce the industry into accepting agency-decreed policies or standards negotiated at closed-door meetings. Any coercion that may have been involved in this case would appear to result more from petitioner’s commendable energies and interest in improving children’s television by petitioning for these proceedings than from the Commission itself.

Where Congress wanted to prohibit ex parte contacts it clearly did so. Thus APA § 5(c) forbids ex parte contacts when an “adjudication” is underway, but even that prohibition does not apply to “the agency or a member or members of the body comprising the agency.” 5 U.S.C. § 554(d)(C) (1970). On the other hand, we have APA § 6(a), a rather cryptic provision, which states in relevant part: Id. § 555(b) (emphasis added). Section 555 sets forth “[ajncillary matters” which by subsection 555(a) apply to sections 551 through 559, including of course informal rulemaking under section 553. Most of the subsections in section 555, including subsection 555(b), deal with ancillary matters that would normally arise only in the context of adjudications. However, like subsection 555(e) which by its terms applies to “any agency proceeding,” subsection 555(b) applies to any “agency function,” which certainly includes rulemaking. The above-quoted language can reasonably be *475read as sanctioning ex parte contacts, subject of course to an agency’s determination that they are consistent with “the orderly conduct of public business.” Thus, this particular subsection gives added support to the Commission’s contention that “[t]he fact that the public was not part of meetings Chairman Wiley held with industry representatives no more means the public was excluded from participation in this proceeding than does the fact that the public was not part of meetings former Chairman Burch had held with representatives of ACT.” Government’s Brief at 58. If Congress wanted to forbid or limit ex parte contacts in every case of informal rulemaking, it certainly had a perfect opportunity of doing so when it enacted the Government in the Sunshine Act, Pub.L. No. 94-409, 90 Stat. 1241 (Sept. 13, 1976). Referring to Executive Order 11920 and the general policy declaration of the Sunshine Act’s section 2, which states that it is “the policy of the United States that the public is entitled to the fullest.practicable information regarding the decisionmaking processes of the Federal Government,” the court in Home Box Office goes on to conclude that “[c]ertainly any ambiguity in how Sangamon should be interpreted has been removed by [these] recent congressional and presidential actions.” Home Box Office, supra, 185 U.S.App.D.C. at -, 567 F.2d at 56. In our view, any support that these actions might lend to that decision’s extension of Sangamon to all informal rule-making proceedings is rendered nugatory by what Congress chose not to do. That it did not extend the ex parte contact provisions of amended section 557 to section 553 — even though such an extension was urged upon it during the hearings — is a sound indication that Congress still does not favor a per se prohibition or even a “logging” requirement in all such proceedings.

Having been distinguished in a footnote, see Home Box Office, supra, 185 U.S.App.D.C. at — n. 124, 567 F.2d at 56, 98 U.S.App.D.C. 432, Courtaulds was effectively overruled two pages later. See id. at -, 567 F.2d at 57. The Home Box Office opinion also states that footnote 16 of Courtaulds, quoted supra, is plainly in error to the extent it suggests that Sangamon did not involve rulemaking. Id. at - n. 124, 567 F.2d at 56. We do not think that this is what this court meant to imply in Courtaulds; rather we believe that that opinion was simply recognizing that there are different kinds of informal rulemaking of which TV channel allocations are one very special sort because of their “adjudicatory” overtones.

As further support “favoring extension of the ex parte prohibition of the Sunshine Act to informal rulemaking,” the Home Box Office opinion offers two items: Senate Subcommittee hearings on S.1289, Open Communications Act of 1975, and a study offered by the Association of the Bar of the City of New York. See Home Box Office, supra, 185 U.S.App.D.C. at - n. 128, 567 F.2d at 57. These warrant little comment in light of Congress’ failure to heed them, but it is at least instructive to point out that Mr. Henry Geller, amicus in Home Box Office and counsel to petitioner in the case sub judice, wrote in a prepared statement entered during the hearings on S.1289: Hearings before the Subcomm. on Admin. Prac. & Proc., 94th Cong., 1st Sess. 103 n. 12 (1976). We agree, and believe that the case now before us falls squarely within that exception.

Finally, the court in Home Box Office further held that Commission reception of ex parte communications violated the agency’s own rules published at 47 C.F.R. § 1.415 (1975). The panel there admits that this “inference” is “less easy to draw,” in part because of “the apparent long-standing Commission interpretation of its own rules to allow ex parte contacts . . . .” Home Box Office, supra at - n. 122, 567 F.2d at 55. We cannot agree that ex parte contacts in the instant case violated Rule 1.415 for the proffered justification for such a conclusion is irreconcilable with the fact that the Commission since 1965 has had rules that forbid ex parte contacts by interested persons in “restricted” adjudicatory and rulemaking proceedings. See 47 C.F.R. §§ 1.1201 et seq. (1976). If the Commission intended to prohibit ex parte contacts in a case such as this, we should presume that it simply would have done so explicitly under Rules 1.1201 et seq.

The Commission has been delegated authority to promulgate rules and regulations “from time to time, as public convenienceTmterest, or necessity requires . . . .” 47 U.S.C. § 303(r) (1970). It may also use its licensing function to promote the public interest. See id. §§ 307(a), 309(a) (initial grants); id. § 307(d) (renewals); Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956) (award to a competing applicant on basis of superior programming); Henry v. FCC, 112 U.S.App.D.C. 257, 302 F.2d 191, cert. denied, 371 U.S. 821, 83 S.Ct. 37, 9 L.Ed.2d 60 (1962) (sole applicant rejected for inadequacy of proposed programming); cf. 47 U.S.C. § 303(m) (1970) (suspension); id. § 312(a) (Supp. V 1975) (revocation).

The “substantial evidence” test of § 706(2)(E) of the APA, 5 U.S.C. § 706(2)(E) (1970), generally applies only to straight-forward adjudications or formal rulemaking “on the record” held pursuant to §§ 556 and 557. See Automotive Parts & Accessories Ass’n, supra, 407 F.2d at 338.

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962).

Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).

The public interest standard which governs Commission regulation of the broadcast medium has been precisely defined in only a few regulatory areas. E. g., 47 U.S.C. § 315 (Supp. V 1975) (“equal time” provision); 47 C.F.R. § 73.651 (1976) (minimum operating times); id. § 73.636(a)(1) (multiple ownership rules). For the most part, it is not susceptible of specific definition because of its vague, subjective nature. This was not unintended. The Supreme Court explained in National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), that the standard could not be inflexible if the FCC were, as Congress obviously intended, to adapt its regulatory actions to changed circumstances: Id. at 219, 63 S.Ct. at 1011.

See, e. g., Silva v. Romney, 473 F.2d 287, 292 (1st Cir. 1973); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 88, 439 F.2d 584, 598 (1971); Pressley v. FCC, 141 U.S.App.D.C. 283, 288-89, 437 F.2d 716, 721-22 (1970); Environmental Defense Fund, Inc. v. HEW, 138 U.S.App.D.C. 381, 428 F.2d 1083 (1970); Cherry v. Mathews, 419 F.Supp. 922, 924 (D.D.C.1976) (secretary of HEW required to promulgate regulations effectuating § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1975). But see SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), where the Supreme Court stated:

Of course, if it were, this might be a different case. See Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 183, 454 F.2d 1018, 1026 (1971); Greater Boston Television Corp., supra, 444 F.2d at 852. See also text accompanying note 20, supra.

The Commission noted in the Report that its first recognition of children’s programming as a distinct category came in its Programming Policy Statement, 44 F.C.C.2d 2303, 2314 (1960), which listed “Programs for Children” as one of fourteen “major elements usually necessary to meet the public interest, needs and desires of the community.” Id. Children’s programs were not singled out for special emphasis, and, as usual, ultimate decisions on specific programming content were left to the discretion of the licensee. See 50 F.C.C.2d at 4; J.A. 6.

ACT argues forcefully that the Commission erred in not adopting a rule to prohibit product commercials from programs specifically directed to pre-school aged children, inasmuch as the Commission itself found that such commercials are per se deceptive. Petitioner’s Brief at 28-32; Petitioner’s Reply Brief at 8-12. Contrary to what ACT maintains, the Commission in fact did not specifically find that pre-school aged children could not distinguish between programming content and commercial message under any circumstances. Its Report did note that there was “evidence that very young children cannot distinguish conceptually between programming and advertising . . 50 F.C.C.2d at 11, J.A. 15, and that “on the basis of the information gathered in the course of [its] inquiry, it has become apparent that children, especially young children, have considerable difficulty distinguishing commercial matter from program matter.” Id. at 15; J.A. 21. The Commission nevertheless “recognizefd] that, as many broadcasters noted, these findings are not conclusive. . . . ” Id. We cannot now say that the positive actions taken by the FCC to alleviate these apparent difficulties — by mandating a clear separation of programming from advertising and avoidance of “host-selling”, for example — were insufficient as a matter of law. Nonetheless, the Commission has warned that “special safeguards may be required to insure that the advertising privilege is not abused . . .,” id. *481at 11, J.A. 15, and, having recognized that a serious problem exists in this area, the agency has a continuing responsibility to do something further about it should subsequent experience demonstrate that more needs to be done.

FCC, Public Service Responsibilities of Broadcast Licensees (1947).

FCC, Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949).

See notes 10, 13, supra.

The only sanction available against an NAB member found to have violated a Code provision is revocation of membership. Petitioner maintains that the NAB rarely resorts to this sanction “since that also means that the Association loses the station’s membership dues Petitioner’s Brief at 41. The INTV, on the other hand, apparently has no sanctions available to it beyond the power of recommending compliance.