## Facts

- The FCC issued a public Notice addressing industry complaints about radio stations airing allegedly “drug oriented” music.
- The Notice stated its purpose was to remind broadcast licensees of an existing public-interest obligation to know and evaluate the content of programming.
- The Notice indicated licensees should make “reasonable efforts” to determine, before broadcast, the meaning of music with potentially drug-related lyrics, with relevant knowledge held by management-level personnel.
- The Notice generated confusion about terms such as “reasonable efforts” and “ascertain before broadcast.”
- The FCC issued a Second Notice/Order clarifying that suggested compliance methods (e.g., pre-screening by a responsible employee, monitoring while played, and considering/responding to complaints) were illustrative and not mandatory or exclusive.
- A licensee petitioned for review, asserting the FCC’s guidance chilled protected speech, imposed new obligations without required rulemaking, and was too vague.

## Issues

1. Whether the FCC’s Notice and Second Notice/Order regarding “drug oriented” music constituted unconstitutional restraint or censorship under the First Amendment.
2. Whether the FCC’s action was a substantive rule requiring notice-and-comment rulemaking, rather than a nonbinding policy statement or interpretation of existing duties.
3. Whether the FCC’s terminology and refusal to provide further specificity rendered the guidance unconstitutionally vague or otherwise reflected an abuse of discretion.

## Decision

- The court affirmed the FCC’s action and denied the petition for review.
- The court held the FCC’s statements did not impose a prior restraint or unconstitutional censorship because they did not ban specific content and preserved editorial discretion.
- The court concluded the FCC documents were interpretive/policy guidance reminding licensees of preexisting public-interest obligations, not new binding duties requiring notice-and-comment rulemaking.
- The court held the guidance was not impermissibly vague and the FCC did not abuse its discretion by declining to issue further detailed standards.

## Legal Principles

- Agency communications that reiterate existing statutory or regulatory obligations and offer nonexclusive, nonmandatory examples of compliance may be treated as policy statements or interpretive guidance, not substantive rules requiring notice-and-comment procedures.
- FCC oversight tied to a broadcaster’s public-interest responsibilities does not violate the First Amendment where the agency does not directly prohibit particular programming and does not convert guidance into binding commands.
- Flexible standards may satisfy due process where regulated parties receive sufficient notice of expected good-faith compliance and enforcement is not driven by undefined, mandatory criteria; generality alone does not establish unconstitutional vagueness in a public-interest regime.

## Conclusion

The D.C. Circuit upheld the FCC’s “drug oriented” music notices as nonbinding guidance that reminded broadcasters of existing public-interest duties, did not compel content suppression, did not require APA rulemaking, and was not unconstitutionally vague.


Yale Broad. Co. v. FCC, 478 F.2d 594 (D.C. Cir. 1973)