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X 3H Federal Communications Commission and  United States of America,  X 31Respondentsă On Petition for Review of an Order of the Federal Communications Commission  X43 xCraig J. Blakeley argued the cause for petitioner. With him on the briefs was Ronald J.  V3Palenski.  X3 xC. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for  X3 Pw"respondents. With him on the brief were William E. Kennard, General Counsel, Daniel M.  X3 Pw"Armstrong, Associate General Counsel, Joel I. Klein, Acting Assistant Attorney General, U.S.  X3 Pw"XDepartment of Justice, Andrea Limmer, and Catherine G. O'Sullivan, Attorneys. James M. Carr,  X3 Pw"[Counsel, Federal Communications Commission, and Robert B. Nicholson, Attorney, U.S. Department of Justice, entered appearances.  XZ3xBefore: Sentelle, Randolph, and Garland, Circuit Judges.  X.3xOpinion for the Court filed by Circuit Judge Randolph.  X3 xRandolph, Circuit Judge: In 1996 the Federal Communications Commission ruled that  Pw"AFLAC Broadcast Partners, then the licensee of six commercial television stations and the  Pw"}owner-operator of a seventh, violated the Communications Act by refusing to sell time to  Pw"candidates for federal elective office who refused to agree to a forum selection clause contained  Pw"in AFLAC's standard "Agreement Form for Political Broadcasts." After the Commission's  Pw"decision, but before the case reached us, AFLAC sold all of its interests in the television stations  Pw"and apparently dissolved, with petitioner assuming its liabilities. Whether the case is now moot is the first, and as it turns out, the decisive issue.  u#Q "5'0*0*0**"  u#Q RI  xThe DoleKemp '96 Campaign wanted to buy time on AFLAC's stations. AFLAC  Pw"(insisted on its standard contract, which contained the forum selection clause. The clause  Pw"designated the Commission as the sole and exclusive forum for resolving disputes about excessive  Pw"charges for political advertising. DoleKemp refused to agree to the clause and AFLAC therefore  Pw"refused to sell it any time. In August 1996, DoleKemp lodged a complaint with the  Pw"(Commission, alleging that AFLAC's insistence on the forum selection clause violated the Communications Act.  ~xThe legal context of the complaint was this. Federal candidates for elective office have  Pw"a "right" to "reasonable access" to broadcast stations to air their advertisements. This right stems  Pw"from a remedy. The Act authorizes the Commission to revoke a broadcaster's license "for willful  Pw"&or repeated failure" to allow "legally qualified" candidates for federal elective office "reasonable  X 3 Pw"Haccess" to the broadcasting station. 47 U.S.C.  312(a)(7); see CBS, Inc. v. FCC, 453 U.S. 367  Pw"(1981). Federal candidates are not entitled to free advertising time. They must pay, but in the  Pw"{days close to election, broadcasters cannot charge them more than the "lowest unit charge of the  Pw"station for the same class and amount of time for the same period." 47 U.S.C.  315(b)(1). In  Pw"1991 the Commission declared that it, and it alone, had jurisdiction to decide whether  Pw"broadcasters had billed candidates for more than the lowest unit charge  315(b)(1) permitted;  Pw"that this was solely a federal question; and that state causes of action dependent on any duty  X3 Pw"arising from  315(b) were preempted. See In re Exclusive Jurisdiction With Respect to  Pw"Violations of the Lowest Unit Charge Requirements of Section 315(b) of the Communications Act  X3 Pw"of 1934, 6 F.C.C.R. 7511, 7511  1 (1991); see also Wilson v. A.H. Belo Corp., 87 F.3d 393,  X3 Pw"400 (9th Cir. 1996) (upholding the declaration); but see Miller v. FCC, 66 F.3d 1140, 1146 (11th  Pw"&Cir. 1995). Sometime after the Commission's announcement, AFLAC"in order to ensure that  Pw"&its candidate-customers would seek Commission resolution of any overbilling disputes"began insisting on the forum selection clause.  mxIn September 1996, the Commission ruled that AFLAC's refusal to sell time to federal  Pw"candidates unless they agreed to the clause violated the reasonable access provision of  312(a)(7)  X?3 Pw"'because it forced "a federal candidate ... to surrender another legal right." In re Complaint of  X*3 Pw"DoleKemp '96 Campaign, 11 F.C.C.R. 13036, 13040  6 (1996). The other "legal right," as best  Pw"we can gather, was the right to sue in state or federal court for recovery of overcharges, a right  X3 Pw"Zthe Commission said in its 1991 pronouncement did not exist. See id. at 1303940 WW 57. AFLAC thereafter deleted the offending clause and sold air time to DoleKemp.  JxThe Commission decided several other issues relating to AFLAC's standard contract, but  Pw"7the petition for review contests only the ruling on the forum selection clause. Petitioner thinks  Pw"this ruling is inconsistent with the Commission's position regarding its exclusive jurisdiction and  Pw"that, as applied in the ruling,  312(a)(7) violates the First Amendment to the Constitution. The Commission thinks the case is moot. PII "(0*0*0*+"Ԍ :xOne way of approaching the mootness question is to suppose DoleKemp had filed a  Pw"complaint against AFLAC in a district court rather than at the Commission, that the district court  Pw"%reached the same result as the Commission, that a preliminary injunction issued, and that AFLAC  Pw"'thereafter sold air time to DoleKemp without insisting on the forum selection clause. That  Pw"hypothetical case surely would be moot on appeal. "An appeal from an order granting a  Pw"preliminary injunction becomes moot when, because of the defendant's compliance or some other  Pw"[change in circumstances, nothing remains to be enjoined through a permanent injunction."  X_3 Pw"8Christian Knights of the Ku Klux Klan v. District of Columbia, 972 F.2d 365, 369 (D.C. Cir.  Pw"&1992). The demise of the DoleKemp ticket plus AFLAC's sale of its stations would preclude  Pw"saving the case from mootness on the basis that the issue was "capable of repetition, yet evading  X 3 Pw"Jreview." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); see Christian  X 3Knights, 972 F.2d at 36971.  xAs far as mootness is concerned, is the case before us any different? Yes, in several  Pw"Yways. For one thing the opposing party is the Commission rather than a private litigant. Once  Pw"an agency's action reaches a court of appeals on review, the controversy no longer consists of  Pw"simply the private dispute litigated before the agency. The controversy becomes, as then-Judge  Pw"%Scalia pointed out, a dispute between the private party "and the agency concerning the lawfulness  Xh3 Pw"kof the agency action." Radiofone, Inc. v. FCC, 759 F.2d 936, 940 (D.C. Cir. 1985) (separate  Pw"opinion). That DoleKemp received full satisfaction, therefore, does not necessarily put this  Pw"controversy to rest. As a regulator, the Commission has a continuing interest in forbidding forum  Pw"selection clauses like AFLAC's. Also, unlike an injunction ordering AFLAC to sell time to Dole Pw"Kemp, the Commission's Order was not restricted to granting relief to the complaining party.  Pw"Rather, the Order directed AFLAC "to conform its practices consistent with our holding herein."  X3 Pw"In re Complaint of DoleKemp '96 Campaign, 11 F.C.C.R. at 13041  10. In other words, the  Pw"jCommission directed AFLAC to stop insisting on the clause when any federal candidate sought  Pw"7to buy time from any of its stations. Whether the Order also reached back to contracts already signed and completed is a question we discuss later.  :xThese considerations, and others, are taken for granted in the Commission's mootness  Pw"argument. The Commission correctly focuses not on the circumstances of DoleKemp, but on  Pw"the change in AFLAC's situation brought about by the sale of its stations after the Commission's  Pw"jOrder issued. The natural and obvious question is why, in light of the sale, petitioner still cares  Pw"about the Commission's ruling? Petitioner gives this answer. AFLAC will not be negotiating  Pw"with candidates for air time in the future, but it entered into contracts containing the offending  Pw"%clause in the past. Petitioner tells us that not all of the state statutes of limitations have run. (We  X 3 Pw"shall assume that state statutes of limitations control. But see In re Complaint of Harvey Sloane,  Pw"12 F.C.C.R. 8513, 8515 WW 7, 9 (1997).) Stuck with AFLAC's liabilities, petitioner worries  Pw"about being haled into state court for having overcharged some former candidate for federal  Pw"Zoffice. If AFLAC's forum selection clause were valid"that is, if we agreed with petitioner's  Pw"arguments on the merits"the state court would respect our judgment and dismiss the complaint,  Pw"or perhaps transfer the case to the Commission. The Commission's Order, petitioner concludes,  Pw"is thus a source of a continuing injury because, so long as the Order stands, petitioner is being deprived of the benefit of the bargains AFLAC struck with federal candidates. "(0*0*0*+"Ԍ xOf course, infringements of common-law rights, including contract rights, can cause the  Pw"Jsorts of injuries that give rise to"in the Supreme Court's words""real," "live," "actual,"  Pw""cognizable," "present," "genuine," "ongoing," "continuing," "substantial" Article III "Cases" and  X3 Pw"7"Controversies." See Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 13738 (1939); United  X3 Pw"States Nat'l Bank of Oregon v. Independent Ins. Agents of America, 508 U.S. 439, 446 (1993);  X3 Pw"YArizonans for Official English v. Arizona, 117 S. Ct. 1055, 1068 (1997); Raines v. Byrd, 117 S.  X|3 Pw"Ct. 2312, 2317 (1997); ASARCO, Inc. v. Kadish, 490 U.S. 605, 619 (1989); City of Los Angeles  Xg3 Pw"v. Lyons, 461 U.S. 95, 102 (1983); Suitum v. Tahoe Regional Planning Agency, 117 S. Ct. 1659,  XR3 Pw"1664 n.7 (1997); Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Board of License  X=3 Pw"Comm'rs v. Pastore, 469 U.S. 238, 240 (1985); North Carolina v. Rice, 404 U.S. 244, 246  Pw"(1971). As some of these modifiers suggest, the controversy must exist not only at the start but  X 3 Pw"kalso throughout all stages of judicial review. See Arizonans for Official English, 117 S. Ct. at  Pw"H1068. And as we are regularly reminded, to save a case from mootness the ongoing injury must  X 3 Pw"be more than a "remote possibility," not "conjectural," more than "speculative." Warth v. Seldin,  X 3 Pw"422 U.S. 490, 507 (1975); City of Los Angeles, 461 U.S. at 102. This is where petitioner runs  Pw"Ginto trouble. Petitioner reports no litigation on the horizon, no complaints from federal candidates  Pw"on the verge of filing, no simmering disputes about to erupt into a lawsuit alleging excessive charges. And the problems do not end there.  xPetitioner treats the Commission's decision as having "voided" all of the forum selection  Pw"clauses in AFLAC's contracts. We doubt the decision was meant to have, or could have had, that  Pw"8consequence. Petitioner faces no impending threat of Commission sanctions if it asserts the  Pw"clause in state court litigation. The Commission acted under  312(a)(7), a provision granting  Pw"Yit authority to revoke a broadcaster's licenses. If, after the Commission's decision, AFLAC had  Pw"persisted in using and asserting the clause, the Commission could have invoked  312(a)(7) to  Pw"put AFLAC out of the broadcasting business, a prospect that would certainly have rendered the  Pw"case a live one for Article III purposes. But the sword is no longer hanging over AFLAC's head.  Pw"9AFLAC has no broadcasting licenses to revoke; it put itself out of the business after the Commission's decision.  xIn what respect, then, has the Commission "voided" AFLAC's forum selection clauses?  Pw"Petitioner replies: a state court would be "bound" by the Commission's ruling and thus would  Pw"refuse to enforce the clause. But are state courts so "bound"? Whether a federal court of appeals  Pw"would sustain the Commission's ruling that the clause violates  312(a)(7) remains to be seen.  X3 Pw"HLike the lower federal courts, state courts fulfilling their duty to comply with Chevron, U.S.A.,  X3 Pw"kInc. v. NRDC, 467 U.S. 837 (1984), would not necessarily have to uphold the Commission's  X 3 Pw"decision as a matter of federal law. See Arizonans for Official English, 117 S. Ct. at 1064 n.11;  X!3ASARCO, 490 U.S. at 617.  xMore important, petitioner forgets that the Commission acted to enforce  312(a)(7), to  Pw"kprevent AFLAC from refusing to sell time to federal candidates. Yet the litigation petitioner  Pw"fears would not be about AFLAC's refusal to sell time. No former federal candidate could sue  Pw"ZAFLAC for charging too much unless the candidate had agreed to the forum selection clause,  Pw"Ybought time, and broadcast advertisements on AFLAC's stations. The Commission's Order did  Pw"not direct AFLAC to take any action with respect to these individuals. The Order, as counsel for  Pw"the Commission stated at oral argument, was prospective only. With respect to candidates who")0*0*0*,"  Pw"{aired their advertisements, it is possible that AFLAC overbilled them, but it is not possible that  Pw"AFLAC violated  312(a)(7) by refusing to sell them time. The Commission's Order, in short,  Pw"could not have "voided" the forum selection clauses in contracts already consummated, yet these  Pw"are the only contracts petitioner thinks may be subject to litigation in state court sometime in the future.  xThere is nothing to petitioner's related point that the severability clause in AFLAC's  Pw"standard contract will itself render the forum selection clause void. The severability clause states  Pw"that "if any term or provision of this Agreement contravenes or is invalid under any federal, state  Pw"|or local law, court decision, rule, ordinance or regulation or administrative sanction (including  X 3 Pw"that of the FCC as upheld by a reviewing court with applicable jurisdiction ), [t]his Agreement  Pw"shall be construed as if it did not contain the offending term or provision." J.A. 38 (italics  Pw"added). This clause cannot breathe life into a controversy that has come to rest. If we declare  Pw"the case moot we will not have "upheld" the Commission and so the severability provision would not make the forum selection clause inoperative.  xWhat other possible legal consequences could flow from the Commission's Order? We  Pw"suppose some hypothetical state court litigant could try to invoke collateral estoppel to prevent  Pw"{petitioner from relying on the forum selection clause. But petitioner does not raise this specter,  Pw"doubtless because it is so far-fetched. We do not deny that agency adjudications may have  X63 Pw"preclusive effects. See Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 10708  X!3 Pw"(1991); Restatement (Second) of Judgments  83 (1982). But if the state court agreed with  Pw"our analysis of  312(a)(7) and the prospectiveonly effect of the Commission's Order, and if the  Pw"state court generally followed the same principles of offensive use of collateral estoppel as we  X3 Pw"do, petitioner would have no cause for concern. See Parklane Hosiery Co. v. Shore, 439 U.S.  X3 Pw"322, 331 (1979); Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 197 (D.C. Cir.  X3 Pw"[1996), cert. denied, 117 S. Ct. 1468 (1997); 47 C.F.R.  1.45(c) (1997); North American  X3 Pw"|Telecomm. Ass'n, FCC 86304 app., File No. E851, 60 R.R.2d 1355, 1365 (Aug. 1, 1986);  X3 Pw"see also Montana v. United States, 440 U.S. 147, 157 (1979); Jack Faucett Assocs., Inc. v.  Xs3American Tel. & Tel. Co., 744 F.2d 118, 125 (D.C. Cir. 1984).  xWhat we are left with, then, is simply the impact of the Commission's precedent"or more  Pw"precisely, the impact of the rationale contained in it"on a state court in future litigation. Yet  Pw"(we have said before, and we say again, that the "mere precedential effect of [an] agency's  Pw"{rationale in later adjudications" is not an injury sufficient to confer standing on someone seeking  X3 Pw"judicial review of the agency's ruling. Radiofone, 759 F.2d at 939; see also Shell Oil Co. v.  X 3 Pw"FERC, 47 F.3d 1186, 120102 (D.C. Cir. 1995); Crowley Carribean Transport, Inc. v. Pe9a, 37  X!3 Pw"YF.3d 671, 674 (D.C. Cir. 1994); Telecommunications Research & Action Ctr. v. FCC, 917 F.2d  X"3 Pw"585, 588 (D.C. Cir. 1990). The "later adjudications" mentioned in Radiofone were later  Pw"adjudications by the same agency. But the principle still has force, indeed is all the more telling,  Pw"in our context, which deals with the effect of an agency precedent on later state court  Pw"proceedings. It is all the more telling because the "precedent" we are considering is not the  XR&3 Pw"product of the future decisionmaker, that is, the state court. Unlike the situation in Radiofone,  X='3stare decisis therefore will not apply. "((0*0*0*+"Ԍ xAny assessment of the impact of the Commission's ruling thus necessarily entails a long  X3 Pw"string of "ifs." If a former federal candidate who entered into the standard contract thought he  X3 Pw"or she had been overcharged by AFLAC; and if this individual marched into a state court; and  X3 Pw"if the state judge found that the Commission had decided the validity of the forum selection  X3 Pw"Iclause in contracts already completed; and if this judge thought that the Commission's Order  X3 Pw"decided the matter correctly, taking due account of the principles of Chevron; and if the state  X3 Pw"judge therefore declared the forum selection clause invalid under  312(a)(7); and if, despite  Xk3 Pw"Chevron, the state judge rejected the Commission's 1991 pronouncement that the agency had sole  Pw"&and exclusive jurisdiction over these matters, so that the state case could go forward"then and  Pw"7only then would petitioner suffer harm from the Commission's Order, the harm being having to  Pw"defend itself in a state court rather than before the Commission. We would be unwilling to credit  Pw"Hsuch gross speculation for the purpose of establishing standing, and we are equally unwilling to  Pw"do so for the purpose of deciding the related question whether we have a live controversy before us.  mxNone of what we have written would be affected if, as petitioner seems to suggest, we  Pw"treated the Commission's decision here as a "declaratory ruling" articulating a general policy that  Pw"similar forum selection clauses in political advertising contracts with federal candidates are  Pw"Hinconsistent with  312(a)(7). Characterizing the Commission's decision that way neither gives  Pw"it greater status in terms of its binding effect in state court litigation, nor makes it more likely  XB3 Pw"that petitioner will be injured by the decision. See Tennessee Gas Pipeline Co. v. Federal Power  X-3 Pw"Comm'n, 606 F.2d 1373, 1382 n.40 (D.C. Cir. 1979). Accordingly, we hold that this petition for judicial review is moot. NIII  xOur decision that the case is now moot leads to the question"on which we ordered  Pw"supplemental briefing"whether we should vacate the Commission's unreviewed Order. The  X3 Pw"Supreme Court's decision in A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324  Xy3 Pw"(1961), is, we believe, controlling. Extending the principle of United States v. Munsingwear, 340  Xd3 Pw"YU.S. 36 (1950), to "unreviewed administrative orders," Mechling held that federal courts should  Pw"|vacate agency orders they decline to review on grounds of mootness. 368 U.S. at 329. Since  X83 Pw"HMechling we have, as a matter of course, vacated agency orders in cases that have become moot  X#3 Pw"Iby the time of judicial review. See, e.g., Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 79  X3 Pw"k(D.C. Cir. 1988); Radiofone, 759 F.2d at 938; Hollister Ranch Owners' Ass'n v. FERC, 759  X3F.2d 898, 90102 (D.C. Cir. 1985); Tennessee Gas Pipeline, 606 F.2d at 138283.  xNot surprisingly, the Commission opposes this course of action. It argues against vacatur  Pw"on the grounds that (1) AFLAC caused this dispute to become moot through its "unilateral,  Pw"kvoluntary action"; (2) it is entirely "speculative" that the Commission's Order will have any  Pw"|preclusive effects on petitioner in the future; and (3) the continuing precedential force of the Order remains valuable to the public.  XC'3 xThe Commission's first point misinterprets U.S. Bancorp Mortgage Co. v. Bonner Mall  X.(3 Pw"Partnership, 513 U.S. 18 (1994). Vacatur is generally not justified, the Court held, when "the  Pw"6party seeking relief from the judgment below caused the mootness by voluntary action" in settling")0*0*0*,"  X3 Pw"the case. Id. at 24. The specific holding of Bancorp, concerning as it does settlements, has no  X3 Pw"application here. Nor does the Court's general reasoning. See id. at 25, 29; see also Anderson  X3 Pw"v. Green, 513 U.S. 557, 560 (1995); Karcher v. May, 484 U.S. 72, 83 (1987); Mahoney v.  X3 Pw"Babbitt, 113 F.3d 219, 22122 (D.C. Cir. 1997); National Black Police Ass'n v. District of  X3 Pw"Columbia, 108 F.3d 346, 35152, 354 (D.C. Cir. 1997); National Football League Players Ass'n  X3 Pw"v. ProFootball, Inc., 79 F.3d 1215, 121617 (D.C. Cir. 1996). AFLAC announced the sale of  Pw"7its stations before DoleKemp even complained to the Commission. It did not sell the stations in order to moot this case; in fact, its successor argues vigorously that the case is still alive.  lxThe Commission's second point, we believe, goes to the equities. Once we pass from the  Pw"&issue of mootness to the issue of remedy, we still may encounter some lingering though remote  Pw"jpossibility of residual collateral harm to petitioner from the unreviewed Order. Recourse to the  Pw""equitable tradition of vacatur" may be warranted, then, partly because it eliminates that  X 3 Pw"possibility altogether. Bancorp, 513 U.S. at 25. In saying this we simply follow"as indeed we  X 3 Pw"must"the Court's lead in Munsingwear, 340 U.S. at 41, which utilized vacatur "to prevent a  Pw"judgment, unreviewable because of mootness, from spawning any legal consequences." In  X3 Pw"Mechling also the barge owners as petitioners wanted the Interstate Commerce Commission's  Pw"order vacated to avoid having it serve as a defense in future actions they might bring against  Xt3 Pw":railroads for damages. See 368 U.S. at 32829. It may, as the Commission puts it, be  Pw""speculative" whether leaving the Order standing could cause some residual harm, but vacating  XH3 Pw"the Order puts the speculation to rest. See, e.g., Radiofone, 759 F.2d at 941; Hollister Ranch  X33 Pw"Owners' Ass'n, 759 F.2d at 90102; see also Greenwich Collieries v. Director, Office of  X3 Pw"Workers' Compensation Programs, United States Dep't of Labor, 732 F.2d 343, 34445 (3d Cir. 1984).  9xThe Commission's third reason for opposing vacatur again reflects a misunderstanding of  X3 Pw"%Bancorp. Recognizing the value of judicial opinions to the public, Bancorp stated that precedents  Pw"}should not be treated as "merely the property of private litigants" to be casually set aside  Pw"'whenever, through settlement rather than appeal, a party avoids the full consequences of an  X3 Pw"adverse judgment. 513 U.S. at 26, 27 (internal quotation marks and citation omitted); see also  Xl3 Pw"Mahoney, 113 F.3d at 22223. The Court never suggested, nor have we, that the precedential  Pw"nvalue of a decision alone renders vacatur inappropriate. Such a rule would swallow  X@3 Pw"Munsingwear. The petitioner in this case did not, through the sale of AFLAC's broadcasting  Pw"interests, attempt to employ some sort of "refined collateral attack" on the Commission's Order.  X3 Pw"Bancorp, 513 U.S. at 27. Having sought "review of the merits of an adverse ruling" and having  Pw"|been "frustrated by the vagaries of circumstance, petitioner ought not in fairness be forced to  X 3 Pw"jacquiesce" in the Commission's judgment. Id. at 25; see also Tennessee Gas Pipeline, 606 F.2d at 138283. H* * * xAFLAC's petition for review is dismissed as moot and the Commission's Order is vacated.  XI'3`(#So ordered.