## Facts

- Action for Children’s Television (ACT), a public-interest organization, petitioned the FCC to improve children’s television programming and advertising practices, including restrictions on commercials and sponsorship in children’s programs.
- ACT’s proposal sought stringent requirements, including eliminating or sharply limiting commercial and sponsorship content in children’s programming and requiring specified amounts of children’s programming.
- The FCC initiated an informal rulemaking process: it issued public notices, received extensive written comments over an extended period, and conducted informal panel discussions and oral presentations involving broadcasters, advertisers, educators, parents, and other interested parties.
- After completing the proceeding, the FCC declined to adopt ACT’s proposed rules.
- Instead, the FCC issued a Children’s Television Report and Policy Statement and final rules that relied heavily on a proposal advanced by the National Association of Broadcasters (NAB), allowing the television industry to police children’s advertising through self-regulatory measures.
- The FCC’s reliance on self-regulation was consistent with its prior practice of allowing substantial industry self-regulation in programming-related matters.
- ACT petitioned for judicial review in the D.C. Circuit, arguing that the FCC’s final action resulted from secret negotiations with industry representatives and was not properly exposed to public comment in the rulemaking record.

## Issues

1. Whether the FCC abused the APA’s informal rulemaking process by adopting an industry self-regulation approach that ACT claimed was developed through undisclosed, private negotiations and was not subject to meaningful public comment.
2. Whether the FCC’s refusal to adopt ACT’s proposed rules, and its choice to rely on self-regulation and a policy statement, was arbitrary, capricious, or otherwise an abuse of discretion.
3. Whether the FCC failed to give an adequate, reasoned explanation or unlawfully changed course from prior FCC policy regarding children’s programming and advertising.

## Decision

- The court affirmed the FCC’s decision and denied ACT’s petition for review.
- The court held the FCC substantially complied with applicable informal rulemaking procedures.
- The court rejected ACT’s claim that the FCC’s final approach was procedurally improper merely because industry representatives participated in discussions or advanced an alternative plan.
- The court found the FCC provided a reasoned analysis for rejecting ACT’s prescriptive rules and choosing a self-regulatory approach, and that the agency did not otherwise abuse its discretion.
- The court concluded the FCC’s action did not represent an unexplained departure from established FCC policy in the relevant area.

## Legal Principles

- Under APA informal rulemaking, an agency must provide notice of the subject and substance of the proceeding and an opportunity for interested persons to submit views; the agency need not re-notice every refinement of a proposal developed during the proceeding if the final action is within the range of options aired in the record.
- Courts review an agency’s policy choices under a deferential arbitrary-and-capricious standard; the court asks whether the agency considered the relevant material and gave a rational explanation for its decision, not whether the court would have selected a different policy.
- An agency may consider and adopt an approach advanced by regulated entities if the approach is consistent with the issues presented for comment and the agency’s reasoning is explained on the record.
- Claims that a rulemaking was improperly “secret” require more than evidence of industry participation; the key question is whether the process, taken as a whole, provided a fair opportunity for public participation on the central policy alternatives.
- When an agency’s final action aligns with its prior practice in an area, a challenger bears a heavier burden to show that the agency changed course without explanation.

## Conclusion

The D.C. Circuit upheld the FCC’s decision to decline ACT’s proposed children’s television advertising restrictions and to rely on an industry self-regulatory framework announced through the FCC’s report, policy statement, and related rules, concluding that the FCC substantially followed informal rulemaking procedures and offered a reasoned basis for its choice.


Action for Children's Television v. Federal Communications Commission, 564 F.2d 458 (1977)