COMMUNITY TELEVISION OF SOUTHERN CALIFORNIA, PETITIONER V. SUE GOTTFRIED, GREATER LOS ANGELES COUNCIL ON DEAFNESS, INC., ET AL. FEDERAL COMMUNICATIONS COMMISSION, PETITIONER V. SUE GOTTFRIED, GREATER LOS ANGELES COUNCIL ON DEAFNESS, INC., ET AL. No. 81-298 No. 81-799 In the Supreme Court of the United States October Term, 1981 On Writs of Certiorari to the United States Court of Appeals for the District of Columbia Circuit Brief for the Federal Communications Commission TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Statement: A. The regulatory context 1. The Communications Act of 1934 2. Section 504 of the Rehabilitation Act of 1973 B. Proceedings below 1. Proceedings before the Commission 2. The decision of the court of appeals Summary of argument Argument: I. Congress did not intend the Federal Communications Commission to adjudicate violations of Section 504 of the Rehabilitation Act A. Congress intended that Section 504 would be enforced by agencies providing federal financial assistance B. Congress did not intend that Section 504 would be enforced by agencies that issue licenses but do not provide federal aid C. Effective means of enforcing Section 504 already are available and duplicative enforcement by the Commission is unwarranted II. Compelling the FCC to determine whether broadcasters have complied with Section 504 would be inconsistent with the provisions and policies of the Communications Act of 1934 A. The Commission's expert judgment concerning the best means of making television accessible to the hearing impaired under the Communications Act should have been sustained B. The public interest standard would lose utility if unrelated statutory requirements were superimposed upon it III. Requiring the Commission to enforce the Rehabilitation Act in licensing proceedings would produce adverse practical consequences Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-42a) /1/ is reported at 655 F.2d 297. The decisions of the Federal Communications Commission (Pet. App. 47a-78a) are reported at 69 F.C.C.2d 451 and 72 F.C.C.2d 273. JURISDICTION The judgment of the court of appeals was entered on April 17, 1981. A timely petition for rehearing was denied on July 8, 1981 (Pet. App. 43a-46a). The petition for a writ of certiorari in No. 81-298 was filed on August 14, 1981. The petition in No. 81-799 was filed, after an extension, on October 27, 1981. The petition in No. 81-799 was granted on January 11, 1982. On that same date, the petition in No. 81-298 was granted limited to Question Two presented in the petition. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED The relevant statutory and regulatory provisions are set forth in Pet. App. 79a-90a. QUESTION PRESENTED Whether the Federal Communications Commission, in a broadcast licensing proceeding concerning a public television station, must make an independent assessment of the station's compliance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.(& Supp.III) 794, even though enforcement of that provision is committed to other federal agencies. /*/ STATEMENT A. The Regulatory Context This case concerns the allocation of responsibility for enforcing two separate statutes, both of which we describe briefly below. We also describe the relevant scheme of administrative regulation that has developed under each statute. 1. The Communications Act of 1934 Under the Communications Act of 1934, the Federal Communications Commission ("Commission") is given authority to grant and renew broadcast licenses when it finds that the public interest, convenience, and necessity will be served thereby. 47 U.S.C. 307(a), (d), 308(a), 309(a), (d). Television stations must apply for renewal of their licenses every five years, /2/ and any "party in interest," including a member of the station's audience, may petition to deny the application. 47 U.S.C. 309(d)(1). If an application presents "a substantial and material q-uestion of fact," or if the Commission "for any reason" is unable to find that the public interest, convenience, and necessity would be served by granting the application, it shall conduct a "full hearing" at which the applicant generally bears the burden of proof. 47 US.C. 309(e). The Communications Act contains no provision defining the duties of broadcasters toward handicapped persons or requiring the Commission to prescribe those duties. Nevertheless, for more than a decade, the Commission has attempted to encourage the development of technically and financially feasible means of making television accessible to the hearing impaired. In 1970, the Commission issued a Public Notice advising all licensees that television's capacity "to alert, assist and entertain persons with impaired hearing" should be utilized to the "fullest extent." The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F.C.C.2d 917 (1970). Toward that end, the Commission recommended that emergency announcements be made visually, as well as orally (ibid.). It also offered (id. at 918) the following suggestions: In respect to news programs -- that visual bulletins of the matter under discussion be presented, that weather maps have descriptive phrases placed on them and that some segment of the screen be, as far as possible, continually reserved for the presentation of the face of the announcer so as to permit lip-reading. In respect to informational programs -- that such programs be presented concerning the problems of the deaf and hard of hearing. * * * In respect to entertainment -- that during sports programs the scoreboard be frequently flashed on the screen, that names of players or persons being pictured be presented in written form and that broadcasts of movies be made with subtitles when films are available with subtitles. The Commission explained that its Public Notice was "advisory in nature," but warned (26 F.C.C.2d at 918-919) that it would monitor developments and would consider issuing rules establishing minimum requirements if broadcaster initiatives did not "develop satisfactorily." The Commission later adopted rules requiring that all emergency announcements be broadcast visually. Amendment of Part 73 of the Rules to Establish Requirements for Captioning of Emergency Messages on Television, 61 F.C.C.2d 18 (1976), modified on reconsideration, 62 F.C.C.2d 565 (1977) (codified at 47 C.F.R 73.1250(f)). In 1972, the Commission authorized the Public Broadcasting System (PBS) to begin an experimental program to assist hearing impaired persons. The experimental program was based on the use of "closed" captions in conjunction with television broadcasts. See Television Broadcast Signal for Captioning for the Deaf, 41 Fed.Reg. 5834 (1976). "Closed" captions are captions visible only on televisions equipped with special decoding devices. "Open" captions, by contrast, appear on all television screens like subtitles on foreign-language movies. The method selected by PBS was use of the vertical blanking space of Line 21 of the television broadcast signal for transmitting "closed" captions. Ibid. After several years of experimentation, PBS filed a Petition for Rulemaking requesting that Line 21 be reserved exclusively for closed captioning. See Television Broadcast Signal for Captioning for the Deaf, 41 Fed.Reg. 5834 (1976). The PBS proposal elicited comments from broadcasters, representatives of hearing impaired persons, electronics manufacturers, and others; those comments revealed pervasive agreement about the best method for making television accessible to the aurally handicapped. See Captioning for the Deaf, 63 F.C.C.2d 378 (1976). One network asserted that adoption of the PBS proposal might preclude implementation of a potentially more versatile system known as "teletext" /3/ then being tested in Great Britain (id. at 383). Some who submitted comments concluded that adoption of the PBS proposal might induce the widespread purchase of a generation of decoding devices that would soon be rendered technologically obsolete (id. at 387). All three commercial networks and the nation's leading manufacturer of motion picture film expressed the view that the proposed closed captioning system was incompatible with movies, a staple of television broadcasting (id. at 384). Moreover, estimates by PBS and the commercial networks of the costs of closed captioning varied dramatically (id. at 384-385). In addition, questions were raised concerning the number of persons for whom closed captioning was the least expensive method of providing access to television (id. at 386-387). The Commission concluded that there were too many unanswered questions, both technical and financial, to justify adoption of the PBS proposal (63 F.C.C.2d at 388-389). The Commission therefore permitted broadcasters to employ the system tested by PBS but did not impose mandatory requirements (id. at 389). The Commission stated (id. at 388): On the one hand we believe it is of the utmost importance that the hearing-impaired, a significant portion of our population, enjoy the tremendously powerful television medium. The Commission attempted to make this clear in the 1970 Policy Statement * * * . On the other hand, we find many unanswered questions * * * . Regardless of how we look at it, there is simply no easy solution. /4/ Most recently, the Commission issued a notice proposing to authorize the use of "teletext," as well as the Line 21 captioning system. See Proposed Authorization of Transmission Teletext by TV Stations, 46 Fed.Reg. 60851 (1981). The Commission noted that "teletext" may be capable of "providing captioning services that are in many respects superior to those of the (Line 21) captioning system and also offers many new features with potential value for all television users" (id. at 60853). The Commission explained that (id at 60851): In keeping with (our) responsibility to regulate use of the radio frequencies in accordance with the public interest, we believe it is important to provide a regulatory environment that is conducive to the emergence and implementation of new technology * * * . Thus, acting under the "public interest" standard of the Communications Act, the Commission has advised licensees that it expects them to make television accessible to the hearing impaired. It has facilitated experimentation in this field and has monitored developments. /5/ The Commission nonetheless has concluded that, at present, technological and financial problems are such that it should rely on voluntary initiatives rather than mandatory requirements under the Communications Act except with respect to emergency announcements. /6/ 2. Section 504 of the Rehabilitation Act of 1973 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.(& Supp.III) 794 provides in relevant part that "(n)o otherwise qualified handicapped individual * * * shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance * * * ." /7/ Enforcement of these provisions of Section 504 has been committed to the federal agencies providing financial assistance. 28 C.F.R. 41.4-41.7. /8/ Each such agency must establish a system of enforcement to ensure that programs and activities receiving its funds comply with Section 504. 28 C.F.R. 41.5. That system must prescribe "(t)he enforcement and hearing procedures that the agency has adopted for the enforcement of title VI of the Civil Rights Act of 1964." 28 C.F.R. 41.5(a). Each funding agency also must promulgate regulations implementing Section 504 with respect to those programs and activities to which it provides financial assistance. 28 C.F.R. 41.4. The two principal federal agencies that provide financial assistance to television stations are the Departments of Education and Commerce. The Department of Education funds the production of educational television programs and makes them available to noncommercial educational stations at no cost or at a cost below their fair market value. See Pub. L. No. 97-35, Section 561, 95 Stat. 469 et seq. The Department of Commerce administers grants for the construction of educational broadcasting facilities. See 47 U.S.C. 390-394, amended by the Public Telecommunications Financing Act of 1978, Pub. L. No. 95-567, 92 Stat. 2405. Smaller subsidies are provided by other federal executive agencies, such as the National Endowments for the Arts and Humanities. /9/ Both the Departments of Education and Commerce have adopted regulations defining Section 504's requirements in general terms. /10/ More important for present purposes, both departments have established comprehensive procedures for enforcing Section 504. Each recipient of funds must submit periodic compliance reports, /11/ and the departments must periodically review recipients' activities. /12/ If an aggrieved person believes that an applicant or recipient has violated Section 504, he or she may file a written complaint with the relevant department, and a full investigation may be conducted. /13/ If a violation is found and compliance cannot be achieved by informal means, the department may suspend, terminate, or refuse to grant funds. /14/ The department also may attempt to effect compliance by any other means permitted by law, including referral of the case to the Department of Justice with a recommendation that proceedings be brought under any applicable federal law. /15/ In order to prevent conflicting interpretations and applications of Section 504, the Attorney General has been given the responsibility for coordinating the implementation of Section 504. /17/ In consultation with the funding agencies, the Department of Justice is now in the process of preparing regulatory guidelines concerning what obligations Section 504 imposes on broadcasters and producers receiving federal financial assistance. /18/ B. Proceedings Below 1. Proceedings Before the Commission Respondents petitioned the Federal Communications Commission to deny the 1977 license renewal applications of one noncommercial and seven commercial television stations in the Los Angeles area. The petitions charged, among other things, that the stations had failed to meet their "public interest" obligations under the Communications Act and had violated Section 504 of the Rehabilitation Act during the 1974-1977 license term under review by failing to offer sufficient programming understandable to hearing impaired persons. See Pet. App. 47a-49a. /19/ The Commission denied the petitions without conducting an evidentiary hearing (Pet. App. 47a-62a). After summarizing its continuing efforts to make television accessible to the hearing impaired (Pet. App. 51a-53a), the Commission explained that it had not imposed mandatory programming requirements upon licensees (id. at 53a). The Commission therefore rejected respondents' claim that the licensees had failed to meet their "public interest" obligations (id. at 57a-59a). The Commission also concluded that Section 504 of the Rehabilitation Act provided no basis for denying renewal of the stations' licenses (Pet. App. 59a-60a). The Commission held that the seven commercial stations were not subject to Section 504 because they did not receive federal financial assistance (Pet. App. 59a-60a). By contrast, the Commission observed that the noncommercial station, KCET, "might fall within the purview" of the statute since it received federal funds (id. at 60a). In accordance with its longstanding policy concerning law violations by licensees, the Commission stated that it would take into consideration any violations of Section 504 found by "the proper governmental agency to consider such matters," but it declined to make an independent assessment of KCET's compliance with Section 504 (ibid.). The Commission subsequently denied respondents' petition for reconsideration (Pet. App. 63a-78a). It noted (id. at 71a) that respondents' attorney had filed a complaint with the Department of Health, Education, and Welfare alleging that KCET had failed to comply with Section 504, /20/ and it reiterated that it would take into consideration any violation of Section 504 found by an appropriate agency (id. at 71a). The Commission also observed (id. at 76a-77a) that broadcasters' voluntary efforts to provide programming for the hearing impaired appeared promising, but it added that if those efforts were not "successful in making television programming more available and enjoyable to the hearing impaired, then it (might) be necessary for the Commission to determine if a rulemaking is warranted to ensure that the hearing impaired are not deprived of the benefits of television" (id. at 77a). 2. The Decision of The Court of Appeals A divided panel of the United States Court of Appeals for the District of Columbia Circuit vacated the Commission's denial of the petition concerning KCET (Pet. App. 1a-42a). In an opinion by Judge Wright, the majority held that KCET was bound by Section 504 because it received substantial federal grants. Noting that the "FCC is directed to renew broadcast licenses only if it finds that renewal would serve the 'public interest, convenience, and necessity'" (id. at 19a), the majority held that "the FCC's 'public interest' mandate must be construed to incorporate the national policy of nondiscrimination against the handicapped minority, at least insofar as that policy imposes specific legal obligations under Section 504 * * * (id. at 20a). The majority summarily rejected (Pet. App. 26a) the Commission's contention that it would have no basis for assessing compliance with Section 504 until the funding agencies articulated standards for broadcasters under that provision. The majority recognized that other agencies were "primarily responsible" for enforcing Section 504, and that a lawsuit was pending in which the court had ordered one of those agencies to issue a Section 504 compliance standard with respect to public broadcasters (id. at 18a, 8a-9a & n.22). /21/ The majority also acknowledged that "it is not the function of the FCC to adjudicate law violations, or, indeed, to regard itself as bound strictly by the specific dictates of the Rehabilitation Act" (id. at 26a). Nonetheless, the court concluded that the Commission is obligated "to effectuate the underlying national policy" expressed in Section 504 (ibid.). The court added (id. at 18a) that the Commission must endeavor to "define the station's responsibilities under the Rehabilitation Act and to enforce the Act's policies in license renewal proceedings." The majority similarly rejected the Commission's contention that it would be unfair to judge KCET's programming during the past license term by reference to the as yet undefined requirements of Section 504 in the field of broadcasting (Pet. App. 27a). The majority believed (ibid.) that license renewal proceedings should focus upon "the station's willingness -- as measured against its capacity and its viewers' need -- to provide programming for the aurally handicapped." Accordingly, the court remanded the case and directed the Commission "to inquire at least into the station's good faith, as manifest in its efforts to provide service in accord with the legislative policy goals of Section 504" (ibid.). In view of perceived delays in implementing Section 504 (Pet. App. 9a n.22, 26a-27a), the court admonished that the Commission "must therefore proceed immediately" )id. at 27a) and "accept its duty now" (id. at 29a). The court reached a different result with respect to the seven commercial broadcasting stations. Rejecting the argument that broadcast licenses constitute "Federal financial assistance" within the meaning of Section 504, the court unanimously held (Pet. App. 29a-35a, 40a) that the commercial stations lacked "specific obligations" under that provision. Acknowledging the efforts the Commission had made to encourage its licensees to make television accessible to the hearing impaired, and "(r)ecognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace," the court deferred to the Commission's determination of what was required from those stations under the public interest standard (id. at 37a-38a). At the same time, the court warned (id. at 38a) that "judicial action might become appropriate at a later date." Judge McGowan dissented from the court's decision concerning KCET. Noting that the Department of Education had been assigned the responsibility for developing compliance standards for Section 504 in the field of television programming and that the Commission stood "ready to take (those standards) fully into account in subsequent license renewal proceedings," he concluded (Pet. App. 40a-42a) that public television stations should not be required to undergo "the expense and uncertainty of renewal hearings" in the interim. The Commission, Community Television of Southern California, and respondents all petitioned for a writ of certiorari. The Commission's petition (No. 81-799) was granted, and that of Community Television of Southern California (No. 81-298) was granted Limited to Question Two presented in the petition. Respondents' petition was denied (J.A. 189a-190a) SUMMARY OF ARGUMENT I. This case concerns the proper method of enforcing Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.(& Supp.III) 794, which prohibits discrimination against the handicapped in any program or activity that received federal financial assistance. The court of appeals concluded that Section 504 applies to public television stations receiving such aid and requires efforts to make television programs understandable to the hearing impaired. The court of appeals further concluded that, under the existing enforcement scheme, Section 504 has not been implemented with sufficient promptness. In order to remedy that perceived deficiency, the court of appeals devised a new enforcement mechanism. In the court's view, the Federal Communications Commission must make an independent assessment of a public television station's compliance with Section 504 when determining whether to grant renewal of the station's broadcast license. The court expressed the belief that the "national policy" contained in Section 504 should be superimposed upon the "public interest" standard under which the Commission evaluates license renewal applications. A. In reaching the result that it did, the court of appeals failed to make any attempt to determine whether Congress intended the Commission to adjudicate complaints alleging violations of Section 504. An examination of the literal language used by Congress and the legislative history clearly shows that Congress intended that federal agencies providing financial assistance would be responsible for enforcement of Section 504, not licensing agencies like the Commission. Section 504 was patterned upon two earlier antidiscrimination statutes: Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and Section 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) . Congress expressly provided that the funding agencies would enforce those laws, and the legislative history of Section 504 makes it clear that Congress intended that provision to be enforced in the same manner. This conclusion is reinforced by the literal language of Section 504, which focuses on federal funding as the pivotal event that triggers the antidiscrimination requirement. B. Beyond this, Congress contemplated that Section 504 would be enforced through the exercise of specific remedial powers -- powers that are not possessed by the Commission. The remedies intended by Congress under Section 504 were termination of federal funding and injunctive relief. There is no suggestion in the text of the statute or its legislative history that Congress believed that the weighty sanction of denial of a broadcast license was an appropriate remedy for a violation of Section 504. C. The decision rendered by the court of appeals also is unsupported by practical considerations. Duplicative enforcement of Section 504 by the Commission is not necessary to achieve the statute's purposes. Comprehensive administrative procedures for enforcing Section 504 have been established by the funding agencies and are currently in operation. In addition, a private right of action under Section 504 has been widely recognized by the courts of appeals. Respondents themselves have made full use of these available methods of enforcement. II. Compelling the Commission to enforce Section 504 in broadcast license proceedings would clash with the provisions and policies of the Communications Act. The court of appeals believed that its newly fashioned enforcement mechanism could be erected on the basis of the "public interest" standard contained in the Communications Act. However, as the expert body charged with the task of regulating broadcasting under the Communications Act, the Commission is entitled to implement its view of the public interest and is not constrained by the policy views of the court of appeals. A. The Commission has developed a comprehensive approach to the problem of making television accessible to the hearing impaired. It has concluded that, at present, technological progress can best be stimulated by facilitating and encouraging experimentation and diverse voluntary efforts rather than by imposing mandatory requirements. While this approach has achieved significant results, the Commission has warned that mandatory requirements may be imposed if voluntary efforts are not satisfactory. And it has emphasized that it will consider violations of Section 504, as adjudicated by funding agencies and other appropriate governmental bodies, when rendering its decisions in broadcast license proceedings. The Commission's expert judgment concerning the proper construction of the "public interest" standard should not have been disturbed by the court of appeals. B. It is difficult to place limits on the rationale utilized by the court of appeals when it imposed new enforcement responsibilities on the Commission under the guise of construing the "public interest" standard. The "policies" of many federal statutes could be superimposed on the public interest standard in the same manner. The public interest standard would quickly lose its flexibility if it were expanded in this impractical and unjustified way. As this Court stressed in NAACP v. FPC, 425 U.S. 662, 669 (1976), "the use of the words 'public interest' in a regulatory statute is not a broad license to promote the general public welfare. Rather, the words take meaning from the purposes of the regulatory legislation." III. Finally, requiring the Commission to enforce Section 504 in licensing proceedings would produce adverse practical consequences. It would place a heavy and unnecessary administrative burden on both the Commission and broadcasters. And it would create a serious potential for conflicting administrative pronouncements. As the Chief Justice observed in his concurring opinion in NAACP v. FPC, supra, 425 U.S.at 674 (emphasis in original): "(t)o the extent that the judiciary orders administrative responsibility to be diffused, congressional intent is frustrated, regulated industries are subjected to the commands of different voices in the bureaucracy, and the agonizingly long administrative process grinds even more slowly." ARGUMENT I. CONGRESS DID NOT INTEND THE FEDERAL COMMUNICATIONS COMMISSION TO ADJUDICATE VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT A. Congress Intended That Section 504 Would Be Enforced By Agencies Providing Federal Financial Assistance The court of appeals held that the Federal Communications Commission must make an independent assessment of its licensees' compliance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.(& Supp.III) 794, but the court failed to cite any evidence that Congress intended such a result. In fact, it is abundantly clear that Congress intended that Section 504 would be enforced by the agencies providing federal financial assistance and not by licensing agencies like the FCC. Section 504 prohibits discrimination "solely by reason of * * * handicap" under "any program or activity receiving Federal financial assistance." Section 504 was patterned after two earlier enactments prohibiting other forms of discrimination, both of which employ language virtually identical to that contained in Section 504. Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d ("Title VI"), forbids discrimination "on the ground of race, color, or national origin" under "any program or activity receiving Federal financial assistance." Section 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681(a) ("Title IX"), prohibits discrimination "on the basis of sex" under "any education program or activity receiving Federal financial assistance." Congress expressly provided that Title VI and Title IX would be enforced by those agencies responsible for distributing federal aid. 42 U.S.C 2000d-1 requires "(e)ach Federal department and agency which is empowered to extend Federal financial assistance to any program or activity * * * " to "effectuate the provisions of section 2000d * * * with respect to such program or activity by issuing rules, regulations, or orders of general applicability * * * ." In addition, 42 U.S.C. 2000d-1 emplowers agencies to employ a number of specific sanctions, including the withholding or termination of funds, in order to obtain compliance with the implementing regulations. That statute also prescribes the procedures agencies must follow before imposing such sanctions. In 20 U.S.C. 1682, Congress provided for the enforcement of Title IX in almost identical terms. Although the Rehabilitation Act lacks a provision analogous to 42 U.S.C. 2000d-1 or 20 U.S.C. 1682, Congress clearly intended that Section 504 would be enforced in a similar manner. The detailed enforcement machinery of Title VI already was in place when Section 504 was enacted. That same enforcement scheme had been adopted for enforcement of Title IX one year earlier. See 20 U.S.C. 1682. The committee reports accompanying the 1974 amendments to the Rehabilitation Act leave no doubt that Congress intended the same enforcement procedures to apply under Section 504. The Senate report concerning the 1974 amendments to the Act stated (S. Rep. No. 93-1297, 93d Cong., 2d Sess. 39-40 (1974)): Section 504 was patterned after, and is almost identical to, the anti-discrimination language of section 601 of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1 (relating to race, color, or national origin), and section 901 of the Education Amendments of 1972, (20) U.S.C. 168(1) (relating to sex). * * * It does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended. The language of section 504, in following the above-cited Acts, further envisions the implementation of a compliance program which is similar to those Acts * * * . This approach to implementation of section 504, which closely follows the models of the above-cited anti-discrimination provisions, would ensure administrative due process (right to hearing, right to review), provide for administrative consistency within the Federal government as well as relative ease of implementation, and permit a judicial remedy through a private action. Substantially identical language appeared in the House conference report (H.R. Conf. Rep. No. 93-1457, 93d Cong., 2d Sess. 27 (1974)) and an earlier Senate report (S. Rep. No. 93-1139, 93d Cong., 2d Sess. 24 (1974)). /22/ See generally Cannon v. University of Chicago, 441 U.S. 677, 694-698 (1979) (because Title IX was patterned after Title VI it should be presumed that a similar method of enforcement was intended). In accordance with Congress' intent, a parallel enforcement scheme was implemented under Section 504. By Executive Order in 1976, the President designated the Department of Health, Education, and Welfare ("HEW") as the agency responsible for coordinating the implementation of Section 504. Exec. Order No. 11,914, 45 C.F.R.Part 85.App. A, at 374. /23/ The Executive Order specifically required the Secretary of HEW to "establish standards for determining who are handicapped individuals and guidelines for determining what are discriminatory practices, within the meaning of section 504." Ibid. The Order further provided that "(i)n order to implement the provisions of section 504, each Federal department and agency empowered to provide Federal financial assistance shall issue rules, regulations, and directives, consistent with the standards and procedures established by the Secretary of Health, Education, and Welfare" (emphasis added). In 1978, HEW issued regulations again directing each such department or agency to "issue * * * a regulation to implement section 504 with respect to the programs and activities to which it provides assistance." 45 C.F.R. 85.4(a), now 28 C.F.R. 41.4(a). HEW's regulations also contained general guidelines defining discriminatory practices. 45 C.F.R. 85.51-85.58, now 28 C.F.R. 41.51-41.58. This scheme of enforcement was approved by Congress in enacting the 1978 amendments to the Rehabilitation Act. Pub. L. No. 95-602, 92 Stat. 2982. As part of those amendments, Congress passed 29 U.S.C.(Supp. III) 794a(a)(2), which provides that persons aggrieved by violations of Section 504 shall have the benefit of the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)," Chief among those remedies is the withholding of financial assistance based upon a determination by the funding agency that its regulations have been violated. See 42 U.S.C. 2000d-1. Thus, 29 U.S.C.(Supp. III) 794a(a)(2) was clearly predicated upon the assumption that each funding agency would issue regulations under Section 504 and adjudicate claimed violations of that provision, just as they did under the prior laws that served as models for Section 504. The Senate Report accompanying the 1978 amendments makes this clear. See S. Rep. No. 95-890, 95th Cong., 2d Sess. 19 (1978) (emphasis added): It is the committee's understanding that the regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under section 504 conform with those promulgated under title VI. Thus, this amendment codifies existing practice as a specific statutory reguirement. In sum, Congress clearly intended that Section 504 would be enforced by the agencies providing federal financial assistance. There is nothing in the Rehabilitation Act itself, and not a single word in its legislative history, to suggest that Congress contemplated that agencies such as the FCC, which provide no federal aid, would adjudicate complaints under Section 504. On the contrary, it is apparent that direct enforcement by the FCC and other federal licensing agencies would be contrary to Congress' intent. B. Congress Did Not Intend That Section 504 Would Be Enforced By Agencies That Issue Licenses But Do Not Provide Federal Aid Section 504, like the provisions upon which it was patterned, applies to only those private programs and activities "receiving Federal financial assistance." Congress did not prohibit all discrimination against the handicapped, however desirable that goal may be. Congress did not exercise its power to regulate interstate commerce, or any other broad regulatory power. Rather, the constitutional authority supporting Section 504, as well as Title VI and Title IX, was Congress' authority to spend federal funds. /24/ Congress can, of course, impose specific conditions on those who voluntarily receive federal financial assistance. See generally Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937). When conditions attached to the receipt of federal aid are violated, two forms of relief are generally appropriate: termination of the aid by the funding agencies or enforcement of the conditions. Discussing Title VI and Title IX -- Section 504's statutory models -- this Court wrote in Cannon v. University of Chicago, supra, 441 U.S.at 704-705 (footnotes omitted): Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices. * * * The first purpose is generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices. That remedy is, however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred. In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded. The Court added (441 U.S.at 705 n.38): "Congress itself has noted the severity of the fund-cutoff remedy and has described it as a last resort, all else -- including 'lawsuits' -- failing." Thus, remedies of even greater severity -- such as the denial of a license essential for engaging in a particular business -- were not adopted by Congress. As an illustration of Congress' limited intent, this Court quoted (id. at 704 n.36) Representative Mink's remarks concerning Title IX (117 Cong.Rec. 39252 (1971)): Any college or university which has (a) * * * policy which discriminates against women applicants * * * is free to do so under (Title IX) but such institutions should not be asking the taxpayers of this country to pay for this kind of discrimination. Millions of women pay taxes into the Federal treasury and we collectively resent that these funds should be used for the support of institutions to which we are denied equal access. Congress contemplated the same enforcement mechanism under Section 504. Private programs and activities that failed to comply with the statute were not to be driven out of existence; rather, they were to be denied federal aid. The Federal Communications Commission does not provide federal financial assistance to its licenses and therefore cannot attempt to enforce Section 504 by terminating federal aid. The Commission also lacks power to enjoin discriminatory conduct. The Commission's power to influence the conduct of its licensees derives from its authority to grant or deny broadcast licenses but such licenses do not constitute "Federal financial assistance" within the meaning of Section 504. /25/ Congress has regulated broadcasting under its commerce clause power (see 47 U.S.C. 301), not under its power to spend federal funds. Accordingly, the Commission is not equipped with the specific remedial powers that Congress believed should be utilized to achieve compliance with Section 504. Enforcement of Section 504 in licensing proceedings also would be inconsistent with specific provisions governing the enforcement of that statute by the funding agencies. Those enforcement provisions, which are contained in regulations patterned after Section 504's statutory models, carefully limit and qualify the power of funding agencies to withhold financial aid. A funding agency, for example, may withhold funds only after filing with the Congressional committees having legislative jurisdiction over the program involved "a full written report of the circumstances and the grounds for such action." /26/ The Commission need not file any such report before denying a license. Similarly, if a funding agency decides to withhold funds, its action must be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found." /27/ That provision illustrates Congress' intent that the penalty imposed by an agency for violating Section 504 must be tied closely to the event triggering Section 504's application: the receipt of federal funds. The Commission, however, cannot limit the denial of a license to only one portion of a station's activities. In sum, it is apparent from the language of Section 504, the constitutional authority under which it was enacted, and the relevant legislative history, that direct enforcement of Section 504 in licensing proceedings is contrary to Congress' intent. C. Effective Means of Enforcing Section 504 Already Are Available and Duplicative Enforcement By the Commission is Unwarranted There might be some practical justification for the court of appeals' decision if Section 504 would otherwise go unenforced, but that is far from the case. First, the Departments of Education and Commerce, the two chief providers of federal financial assistance to broadcasters, have adopted procedures for receiving and resolving complaints of noncompliance with Section 504. /28/ Indeed, just such a complaint concerning KCET's programming was lodged by respondents with the Department of Education and recently was resolved. As that administrative action illustrates, the Department stands ready to review the programming of stations receing its assistance to determine whether the needs of the hearing impaired have been met as required by Section 504. Programs or activities found to have violated Section 504 face substantial sanctions, including the withholding of federal funds. 34 C.F.R. 100.10(f); 45 C.F.R. 80.10(f), 84.61; 46 Fed.Reg. 37068-37069 (1981). Second, the Department of Justice, the agency now responsible for coordinating implementation of Section 504, is presently preparing regulatory guidelines concerning what obligations Section 504 imposes on broadcasters and producers receiving federal financial assistance. Those regulations, when promulgated, will help to ensure uniform enforcement of Section 504 by the funding agencies with respect to all public television stations. Third, a private cause of action under Section 504 has been recognized by all eight circuits that have addressed the question. /29/ Respondents themselves brought suit under Section 504 against KCET, and various federal agencies. /30/ Because these alternative methods of enforcing Section 504 are available and fully adequate, the decision of the court of appeals requiring enforcement by the Commission serves no practical purpose. Respondents maintained below that enforcement by the FCC is necessary because other federal agencies have been derelict in discharging their enforcement responsibilities. Even if that complaint were justified, it would provide no basis for the court of appeals' decision. There is no precedent for the proposition that a court may transfer the responsibility for enforcing a statute from one agency to another if it believes that the agency to which Congress committed that responsibility has failed to perform the duties assigned by statute. Moreover, charges of undue delay in defining the requirements of Section 504 in this area do not adequately take account of the complexity of the problem of adapting television to serve the needs of the deaf. Among other things, a satisfactory solution must provide communication in a manner understandable to most hearing-impaired persons; it must not impose prohibitive costs upon hearing-impaired viewers; it must not interfere unduly with viewing by those without hearing impairments; it must not place unreasonable restrictions upon the journalistic and artistic freedom of television broadcasters and producers; and it must not impose such high costs on public television stations that they are driven out of business or forced to curtail other important services. In the face of problems of this magnitude, the goverment's inability to develop complete solutions on an immediate basis is perfectly understandable. II. COMPELLING THE FCC TO DETERMINE WHETHER BROADCASTERS HAVE COMPLIED WITH SECTION 504 WOULD BE INCONSISTENT WITH THE PROVISIONS AND POLICIES OF THE COMMUNICATIONS ACT OF 1934 The decisions of this Court have clearly delineated the respective roles of administrative agencies and reviewing courts, both as a general matter and with particular reference to the Federal Communications Commission. Agencies are charged with the duty to assess relevant factual and policy considerations and to "weigh the competing interests and arrive at a balance that is deemed 'the public convenience and necessity.'" /31/ An agency may render its judgment based on predictions and accumulated experience in the industry. A "'forecast of the direction in which the future public interest lies necessarily involves deductions based on the expert knowledge of the agency.'" FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 814 (1978). By contrast, the function of the reviewing court is limited. That function is exhausted once it is determined that the agency's decision is rationally based on relevant factors. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). That a court "might not have made the same determination on the same facts does not warrant a substitution of judicial for administrative discretion * * * " (FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946)), particularly when the agency's decision is based on its analysis of public policy, which is "entitled to the greatest amount of weight by appellate courts" (SEC v. Chenery Corp., 332 U.S. 194, 209 (1947)). The Communications Act of 1934 requires the Commission to exercise its administrative authority in a manner that serves the "public interest, convenience, and necessity." 47 U.S.C. 301, 303, 309(a), 310(d). Just last term in FCC v. WNCN Listeners Guild, 450 U.S. 582, 593 (1981), this Court reiterated that the public interest standard is a "'supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy.'" Id. at 593, quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940). The Court added that the Commission must be given "broad discretion" in determining how best to achieve the goal of securing the maximum benefits of broadcasting for all the people and that the Commission is permitted "to implement its view of the public-interest standard * * * 'so long as that view is based on consideration of permissible factors and is otherwise reasonable.'" 450 U.S.at 594, quoting FCC v. National citizens Committee for Broadcasting, supra, 436 U.S.at 793. See also National Broadcasting Co. v. United States, 319 U.S. 190, 224 (1943). In this case, the court of appeals turned aside the Commission's discretionary judgment concerning the proper construction of the public interest standard. Based upon its own view of what constitutes the public interest, the court of appeals required the FCC to incorporate into its public interest analysis an inquiry into the compliance of public broadcasting stations with Section 504. The court of appeals' approach is inconsistent both with the Communications Act itself and with this Court's decisions interpreting that Act. A. The Commission's Expert Judgment Concerning The Best Means of Making Television Accessible To The Hearing Impaired Under the Communications Act Should Have Been Sustained Consistent with its mandate under the Communications Act to "generally encourage the larger and more effective use of radio in the public interest," 47 U.S.C. 303(g), the Commission turned to the problem of making television accessible to the hearing impaired even before the Rehabilitation Act was enacted. The Commission's approach to the problem has three major components. First, the Commission has required visual transmission of all emergency announcements (47 C.F.R. 73.1250(f)). Second, it has encouraged and facilitated experiments and diverse voluntary efforts by broadcasters. /32/ At the same time, it has warned that mandatory requirements may be imposed if voluntary efforts are not satisfactory, but it has not yet established such requirements (see Pet. App. 77a). Third, it has stated that, in deciding whether to grant or renew a license, it will take into account any violations of Section 504 found by the funding agencies responsible for enforcing that provision (id. at 60a, 71a). The Commission's approach was developed over more than a decade, during which it acted to facilitate the development of feasible means to adapt television to the needs of the deaf. Its approach was based upon an appreciation of the difficult technical and economic problems involved and took into account, not only the legitimate needs of the hearing impaired, but the many other public needs that broadcasting must serve. The court of appeals should not have rejected the Commission's considered judgment based upon the court's view of what the public interest demands. In order to demonstrate the soundness of the Commission's judgment -- and the unwarranted nature of the court of appeals' intrusion -- we will discuss below each component of the Commission's approach. 1. The oldest and simplest component of the Commission's strategy is the requirement that emergency announcements be transmitted so as to appear in visual form on all television sets. See The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F.C.C.2d 917 (1970); Amendment of Part 73 of the Rules to Establish Requirements for Captioning of Emergency Messages on Television, 61 F.C.C.2d 18 (1976), modified on reconsideration, 62 F.C.C.2d 565 (1977). See 47 C.F.R. 73.1250(f) (Pet. App. 51a-53a). In this area, balancing the competing interests was easy. The importance of the information conveyed outweighs all other considerations. 2. Making television generally accessible to the hearing impaired, however, is a much more difficult and complicated problem. It is, first of all, a problem of considerable technical complexity. When the Commission first turned to this problem more than a decade ago, most of the technology now available had not yet been developed. It was largely through the combined efforts of the Commission, broadcasters, electronics manufacturers, and other government agencies that today's technology was devised and tested (see pages 3-7, supra). And, if progress continues, the present generation of technology may soon be rendered obsolete. /33/ The Commission's expert judgment has been that technological progress may best be stimulated by facilitating and encouraging experimentation and diverse voluntary efforts by broadcasters rather than by imposing mandatory requirements, at least in the absence of further guidance from government bodies responsible for directly enforcing Section 504. /34/ While the Commission has chosen to rely for the time being primarily upon the voluntary efforts of broadcasters and manufacturers, it also has made it clear that it will consider rulemaking should voluntary efforts fall short (see Pet. App. 71a). By announcing its intentions in this manner, the Commission has sought to provide an incentive for private initiative and experimentation. The Commission's reliance upon encouraging and facilitating voluntary efforts has achieved noteworthy results. As a result of experiments initially conducted by PBS, funded by the Department of Health, Education, and Welfare, and authorized by the Commission, much closed captioned programming is now broadcast by PBS and the two commercial networks. By February 1982, more than 30 hours of such programming was broadcast during the average week, /35/ and the necessary decoding devices were being sold at retail for a price comparable to that of many other home entertainment appliances. /36/ When those programs are added to the few programs broadcast with open captions and the many television shows, such as telecast of sports events, which may be enjoyed without the audio portion of the broadcast, it is apparent that television already is accessible to the hearing impaired to a considerable degree. Efforts to make television accessible to the hearing impaired must take account of economic factors. Captioning may be very expensive for an individual television station, /37/ and imposing special obligations upon public television stations, as did the court below, complicates the problem. Public television stations, which cannot sell advertising, are generally less able to bear the extra costs of captioning than their more prosperous commercial competitors. In addition, noncommercial television stations serve the public in large part by airing programs of specialized interest that lack the mass appeal required for broadcast on network affiliates. The extra cost of captioning may make such typically low-budget broadcasts impractical. The court of appeals, for reasons that it left largely unexplained, ignored the Commission's assessment of these factors under the Communications Act and charted a course of its own. 3. The final component of the Commission's approach is the decision not to make an independent assessment of its licensees' compliance with the Rehabilitation Act but to take into account any violations of that Act found by the funding agencies charged with the Act's enforcement (see Pet. App. 60a, 71a). In adopting that position, the Commission followed a sound and well-established policy. The Commission has long considered a proven violation of the law by a broadcast licensee to be a relevant factor in determining whether the grant or renewal of a license is in the public interest. Violations by Applicants of Laws of United States, 42 F.C.C.2d 399, 402-403 (1951); see 47 U.S.C. 309(a), 308(a). The Commission expects every licensee to possess good character /38/ and therefore takes into account any evidence, such as a proven violation of the law, that suggests that a licensee is incapable of fulfilling its duties as a public trustee. See Office of Communication of the United Church of Christ v. FCC, 425 F.2d 543, 548 (D.C. Cir. 1969); Central Texas Broadcasting Co., 74 F.C.C.2d 393, 396 (1979); Violations by Applicants of Laws of United States, supra, 42 F.C.C.2d at 401. It has been the Commission's general practice, however, to defer to the final determinations of the appropriate agency or court with respect to the question whether a licensee has violated a particular law. /39/ The Commission's approach is grounded upon important policy considerations. In deferring to the appropriate enforcement body, the Commission properly relies upon the judgment of institutions with expertise regarding the law in question; it avoids unseemly conflicts with other agencies and the judiciary; it eliminates the possibility of inconsistent judgments; and it conserves scarce governmental resources. /40/ The Commission has summarized these considerations as follows (61 F.C.C.2d at 30 n.4): In addition to budgetary constraints, the Commission's normal forbearance in this regard has been prompted by the desire both to maintain a proper working relationship with the judiciary and other governmental bodies charged with the responsibility of interpreting and enforcing the laws in question and to avoid burdening renewal applicants with unnecessary, costly multiple hearings. Not surprisingly, the Commission's policy has met with judicial approval. In National Organization for Women v. FCC, 555 F.2d 1002, 1016, 1017-1018 (D.C. Cir. 1977), the court of appeals implicitly approved the Commission's decision to await final action by the EEOC or the courts and not to act on the basis of a preliminary EEOC finding that there was a "'reasonable cause to believe'" that a licensee was guilty of employment discrimination. In an earlier case, the same court noted that "when one federal agency has rejected factual charges after an adequate investigation a sister agency may be entitled to rely upon the prior investigation in dismissing factually identical allegations without hearing." Retail Stores Employees Union, Local 880 v. FCC, 436 F.2d 248, 254 n.39 (D.C. Cir. 1970). The Commission's policy is fully consistent with its obligation under the Communications Act to determine that the granting of a broadcast license is in the public interest. Frequently, as in this case, the Commission will grant an application while reserving the right to take appropriate action upon the resolution of a pending administrative or judicial proceeding. Under certain circumstances, the Commission may also condition the grant upon the outcome of the proceeding or may defer processing the application until the proceeding is terminated. /41/ In all cases, the Commission is free to take a proven violation of the law into account in determining whether a license should be revoked or whether renewal should be denied. See 47 U.S.C. 312(a) (revocation proceedings); 47 U.S.C. 309(a), 308(a) (public interest finding is prerequisite to grant of renewal); 47 U.S.C. 308(b) (renewal applications may contain, inter alia, information as to character). 4. In sum, the Commission has developed a comprehensive approach to the problem of adapting television to serve the needs of the deaf. The court of appeals, however, favored a different approach. The court of appeals preferred direct enforcement of Section 504 by the Commission and rejected the Commission's longstanding practice of deferring to the appropriate enforcement agency when applying the "public interest" standard (Pet. App. 26a, 29a). The court chose not to articulate the policy reasons underlying its approach, but the soundness of the approach favored by the court is not at issue here. The Commission, not the court of appeals, is the expert body charged by Congress with primary responsibility for determining what the public interest requires under the Communications Act. FCC v. WNCN Listeners Guild, supra, 450 U.S.at 593-594; FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940). The Commission's interpretation of the public interest standard was based upon careful consideration of all relevant factors and was clearly reasonable. Its sound exercise of discretion concerning matters peculiarly within its competence should not have been disturbed. /42/ B. The Public Interest Standard Would Lose Utility If Unrelated Statutory Requirements Were Superimposed Upon It This Court's decisions consistently have held that "the use of the words 'public interest' in a regulatory statute is not a broad license to promote the general public welfare. Rather, the words take meaning from the purposes of the regulatory legislation." NAACP v. FPC, 425 U.S. 662, 669 (1976). The public interest standard contained in the Communications Act of 1934 was intended as "a supple instrument" for use by the expert body responsible for regulating the rapidly changing field of broadcasting. FCC v. WNCN Listeners Guild, supra, 450 U.S.at 593, quoting FCC v. Pottsville Broadcasting Co., supra, 309 U.S.at 138. That standard would quickly lose its utility, however, if the Commission were forced to superimpose upon it unrelated statutory requirements intended to be enforced by other agencies. The decision below threatens to impose on the public interest standard just such an unwarranted and impractical constraint. Without citing any evidence that Congress intended such a result, the court of appeals held that the "national policy" expressed in Section 504 must be incorporated into the public interest standard (Pet. App. 20a). If the court's decision were correct, then numerous other laws embodying important national policies would also have to be considered for inclusion within that standard. For example, 42 U.S.C. 6102, in language almost identical to that in Section 504, provides, with some exceptions, that "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance." Similarly, 20 U.S.C. 1681(a) provides, with a few exceptions, that "(n)o person in the United States, shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance * * * ." If Section 504 must be incorporated into the public interest standard, then it could certainly be argued that 42 U.S.C. 6102 and 20 U.S.C. 1681(a) must be included as well. It could be maintained that the Commission is required to determine whether licensees have complied with those provisions by scheduling adequate programming addressing the needs and discussing the problems of the elderly and of members of both sexes. No doubt similar arguments could be mounted on behalf of other legislation even less closely related to the Communications Act. In this manner, the public interest standard could easily become burdened with extraneous statutory requirements, all designed to serve important national policies. As precedent for its holding, the court of appeals noted that the Commission itself has adopted regulations dealing with the employment practices of licensees, even though the Equal Employment Opportunity Commission has primary responsibility for enforcement of the provisions of the Civil Rights Act of 1964 prohibiting discrimination in employment (Pet. App. 23a). There is, however, a critical difference between the Commission's voluntary decision to assume such responsibilities and imposition of them by a court. /43/ The Commission's "broad discretion" is not abridged if it elects to take on such duties or to look for guidance in other statutes when it is making its public interest judgments" The Commission would not knowingly take action that would interfere with its regulatory mission, and if it later learned that it had done so by inadvertence, its decision could be reversed unilaterally in most instances. /44/ By contrast, the court of appeals, lacking the Commission's expertise in the field of broadcasting and its familiarity with its own regulatory responsibilities, is much more likely to require the agency to assume responsibilities inconsistent with its broader duties. In addition, the court's actions, once taken, cannot easily be undone if the consequences prove undesirable. The court also noted that the Commission considers antitrust factors in performing its regulatory function (Pet. App. 20a). However, the Communications Act itself directs the Commission's attention to antitrust issues (see, e.g., 47 U.S.C. 313). /45/ Indeed, Congress affirmatively intended that the Communications Act would preserve a "field * * * of free competition." FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 474 (1940). Nondiscrimination against the handicapped, although an important national objective, does not bear the same close relationship to the Commission's regulatory goals. /46/ III. REQUIRING THE COMMISSION TO ENFORCE THE REHABILITATION ACT IN LICENSING PROCEEDINGS WOULD PRODUCE ADVERSE PRACTICAL CONSEQUENCES Not only is the decision of the court of appeals contrary to Congress' intent in enacting the Rehabilitation Act and inconsistent with the Communications Act, but that decision, if sustained, would have adverse practical consequences both for the Commission and for public broadcasters. First, the decision below will impose a significant and unnecessary administrative burden upon the Commission. During the next three years, almost all of the nation's approximately 270 public television stations will be required to apply for renewal of their licenses. Following the decision of the court of appeals, petitions by aurally handicapped persons may be expected in many such cases. And in every case the Commission will have to determine whether the station has complied with the "underlying national policy" expressed in Section 504. As this Court recognized in Southeastern Community College v. Davis, 442 U.S. 397, 412 (1979), "the line between a lawful refusal to extend affirmative action and illegal discrimination (is not) always * * * clear." Yet the Commission will be required to determine what Section 504 requires without the benefit of an interpretation from the funding agencies charged with the responsibility for enforcing that statute. Moreover, since the decision below unequivocally requires the Commission to begin enforcing Section 504 at once, the Commission will be compelled to define that provision's requirements on a case-by-case basis during licensing proceedings. Second, the court of appeals' decision creates a serious potential for conflicting administrative requirements. Because the court insisted that the Commission interpret Section 504's requirements in licensing proceedings and without awaiting the articulation of standards by the funding agencies, the Commission's interpretation of Section 504's requirements in the field of television programming may well precede those of the funding agencies. If the funding agencies do not follow the Commission's lead, then broadcasters may be faced with inconsistent administrative commands. /47/ If, on the other hand, the funding agencies feel compelled to abide by the Commission's interpretation, then the primary responsibility for interpreting Section 504 will be shifted from those agencies, contrary to Congress' intent. As the Chief Justice recently has observed: "(t)o the extent that the judiciary orders administrative responsibility to be diffused, congressional intent is frustrated, regulated industries are subjected to the commands of different voices in the bureaucracy, and the agonizingly long administrative process grinds even more slowly." NAACP v. FPC, 425 U.S. 662, 674 (1976) (Burger, C.J., concurring) (emphasis in original). Third, the decision below threatens to impose upon the Commission and noncommercial television stations the burden of protracted and costly hearings. Noncommercial television stations vary greatly in size, financial strength, audience, and independent production capabilities. Their ability to provide special services for the hearing impaired therefore varies widely as well. In apparent recognition of these differences, the decision below indicates that Section 504's requirements will vary from station to station (Pet. App. 27a). The Commission is directed to assess each station's "willingness -- as measured against its capacity and its viewers' need -- to provide programming for the aurally handicapped" (ibid.) (emphasis added). If a petition to deny license renewal based on noncompliance with Section 504 is filed, the station's "capacity" to provide service to the hearing impaired and "its viewers' need" may constitute "substantial and material questions of fact" (47 U.S.C. 309(d)) requiring a "full hearing" (47 U.S.C. 309(e)). Such hearing would impose a substantial and unnecessary financial burden upon already hard-pressed noncommercial stations, as well as the Commission. /48/ CONCLUSION The portion of the court of appeals' judgment vacating the Commission's denial of the petition opposing KCET's application for license renewal should be reversed. Respectfully submitted. REX E. LEE Solicitor General STEPHEN M. SHAPIRO Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General STEPHEN A. SHARP General Counsel DANIEL M. ARMSTRONG Associate General Counsel C. GRAY PASH, JR. LINDA L. OLIVER Attorneys Federal Communications Commission March 1982 /*/ The parties to the proceeding in the court of appeals were as follows: Sue Gottfried; Greater Los Angeles Council on Deafness, Inc.; Federal Communications Commission; American Broadcasting Companies; CBS, Inc.; Golden West Broadcasters; KCOP Television, Inc.; Metromedia, Inc.; National Broadcasting Company, Inc.; RKO General, Inc.; and Community Television of Southern California. /1/ "Pet. App." refers to the appendix to the petition in No. 81-799. /2/ Section 307 of the Communications Act of 1934, 47 U.S.C. 307, as amended by Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, Section 1241(a), 95 Stat. 736. Until last year, the maximum license term was three years. See 47 U.S.C. 307; see also Station License Period, 88 F.C.C.2d 355 (1981). /3/ Teletext, like the Line 21 system, transmits information in the vertical blanking interval of the standard television signal and requires decoding. However, "(t)eletext has the potential to serve a wide variety of applications" in addition to captioning, such as "weather reports, news, comparative shopping prices, and community bulletins." Proposed Authorization of Transmission Teletext by TV Stations, 46 Fed.Reg. 60851, 60852 (1981). /4/ One of the most recent developments is an experimental system, called "Real Time," which may permit captioning of some types of live broadcasts. /5/ Licensees generally have heeded the Commission's recommendations and have voluntarily scheduled a substantial amount of programming accessible to the hearing impaired. By February 1982, more than 30 hours of closed captioned programs were being broadcast during the average week by PBS, ABC, and NBC. CBS has not employed the Line 21 closed captioning system presently authorized because it believes that "teletext" is superior. See Proposed Authorization of Transmission Teletext by TV Stations, 46 Fed.Reg. 60851 (1981 ); Captioning for the Deaf, 63 F.C.C.2d 378, 383 (1976). /6/ The Commission's concern for the communications needs of the hearing impaired also is reflected in proceedings concerning other types of communications. In 1978 the Commission began an inquiry into expanding the use of teletypewriter systems in order to provide the deaf with a substitute for the telephone. Telecommunication Services for the Deaf and Hearing-Impaired, 67 F.C.C.2d 1602 (1978). Recently, the Commission concluded a rule making proceeding that reallocated two radio channels to provide paging services for the hearing impaired, blind, and physically handicapped. Amendment of Part 90 of the Commission's Rules to Provide for Operation of Tactile Paging Devices for the Deaf, Blind and Physically Handicapped, 84 F.C.C.2d 750 (1981). /7/ In 1978, after the expiration of the 1974-1977 license term under review in this case, Section 504 was amended to prohibit discrimination against the handicapped, not only "under any program or activity receiving Federal financial assistance," but also "under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C.(Supp.III) 794. This amendment has no bearing on the issues before the Court in the present case. Even if the Commission were deemed an "Executive agency" within the meaning of the amendment, programming of broadcasters licensed by the Commission is not a "program or activity conducted by" the Commission itself. /8/ Enforcement of Section 504 originally was committed to the funding agencies by Exec. Order No. 11,914, 45 C.F.R.Part 85 App. A, at 374, which required each such agency to issue rules, regulations, and directives implementing the statute. That Executive Order also empowered each agency to withhold assistance from programs or activities that failed to comply (ibid.). /9/ Noncommercial education stations also receive grants from the Corporation for Public Broadcasting, "a nonprofit corporation" that is "not * * * an agency or establishment of the United States Government." 47 U.S.C. 396(b). Because KCET, like other noncommercial educational television stations, receives financial assistance from federal executive departments and agencies as well as the Corporation for Public Broadcasting (see Pet. App. 17a-18a), this case does not present the question whether receipt of funds from the latter entity would by itself suffice to make Section 504 applicable. See 47 U.S.C. 398. /10/ The Department of Education's substantive Section 504 regulations are contained in 34 C.F.R.Part 104. The Department of Commerce has temporarily adopted (see 46 Fed.Reg. 37068-37069 (1981)) the Section 504 regulations originally issued by HEW. See 45 C.F.R.Part 84. The Department of Commerce also has issued its own proposed regulations implementing Section 504 (43 Fed.Reg. 53765-53767 (1978)). In addition, the National Telecommunications and Information Administration (NTIA), which administers the Department of Commerce facilities grants, has issued a regulation stating that "NTIA shall enforce Section 504 * * * ." 15 C.F.R. 2301.28(d). /11/ Under 34 C.F.R. 104.61, the Department of Education's Title VI enforcement procedures (34 C.F.R. 100.6-100.10) apply to Section 504 as well. As previously noted (see footnote 10, supra), the Department of Commerce is temporarily operating under implementing regulations issued by HEW. 46 Fed.Reg. 37068-37069 (1981). Under these regulations (see 45 C.F.R. 84.61), HEW's Title VI procedures (45 C.F.R. 80.6-80.10) were made applicable to Section 504 proceedings. Under the Department of Commerce's proposed regulations implementing Section 504 (43 Fed.Reg. 53765-53767 (1978)), the Department's own Title VI procedures (15 C.F.R. 8.7-8.14) would apply. These three sets of Title VI procedures do not differ significantly. /12/ 34 C.F.R. 100.6(b); 45 C.F.R. 80.6(b). See 15 C.F.R. 8.7(b). /13/ 34 C.F.R. 100.7(a); 45 C.F.R. 80.7(a). See 15 C.F.R. 8.7(e). /14/ 34 C.F.R. 100.7(b), (c); 45 C.F.R. 80.7(b), (c). See 15 C.F.R. 8.8(a), 8.10(a). /15/ 34 C.F.R. 100.7(d), 100.8(a); 45 C.F.R. 80.7(d), 80.8(a). See 15 C.F.R. 8.10(b), 8.11(a). /16/ 34 C.F.R. 100.8(a); 45 C.F.R. 80.8(a). See 15 C.F.R. 8.11(a). /17/ The responsibility for coordinating the implementation of Section 504 initially was given to the Secretary of Health, Education and Welfare ("HEW"). Exec. Order No. 11,914, 45 C.F.R.Part 85 App. A, at 374. In that capacity, HEW issued general guidelines. 45 C.F.R.Part 85, amended and redesignated as 28 C.F.R.Part 41 in 46 Fed.Reg. 40686-40687 (1981). By Exec. Order No. 12,250, 45 Fed.Reg. 72995 (1980), HEW's responsibility was transferred to the Attorney General, but the general guidelines previously issued by HEW were retained. /18/ Those regulations will be included in new and expanded coordinating regulations that will replace those previously issued by HEW. In January 1982, draft regulations were circulated to the affected agencies for comment. /19/ The petitions also argued that the stations had failed to comply with the Commission's requirement that all licensees "ascertain" the problems, needs, and interests of the communities they serve (see Pet. App. 48a). The Commission's rejection of that claim (id. at 54a-56a) was not disturbed by the court of appeals and is not at issue here. /20/ Respondents subsequently filed a similar complaint against KCET with the Department of Commerce. The complaint originally filed with HEW was recently decided in KCET's favor by the Department of Education. The complaint filed with the Department of Commerce is still pending. /21/ Respondents filed suit in the United States District Court for the Central District of California against Community Television of Southern California (the licensee of KCET-TV), related public broadcasting entities, and various federal agencies, including the FCC. Greater Los Angeles Council on Deafness (GLAD) v. Community Television of Southern California (KCET), No. CV 78-4715-R (C.D. Cal. Nov. 17, 1981). Respondents alleged that the broadcasters had violated Section 504 by failing to caption their programs and that the federal agencies had failed to enforce Section 504 with respect to public broadcasters. The district court first dismissed the claim against the broadcasters, finding that they had not been shown to have violated Section 504. In November 1981, it issued an order requiring the FCC and the Departments of Education, Justice, and Health and Human Services to adopt Section 504 compliance standards for public broadcasters. While apparently adopting respondents' theory that only open captioning will satisfy the requirements of Section 504, the court also enjoined the funding agencies from distributing monies to producers unless full compliance with Section 504 is assured either by contract or regulation. The district court's order was stayed by the court of appeals pending appeal. Greater Los Angeles Council on Deafness v. Bell, No. 81-5952 (9th Cir.). Respondents also have filed administrative complaints against KCET with the Departments of Education and Commerce (see page 13 note 20, supra). In February 1982, the Department of Education issued a decision finding that KCET had complied with Section 504. The Department concluded that Section 504 does not require open captioning, as respondents maintain, and does not forbid KCET's practice of transmitting educational programs supplied by the Department in the form in which they are received, whether with or without closed captions. /22/ See also 120 Cong.Rec. 30551 (1974) (remarks of Sen. Stafford); 120 Cong.Rec. 35972 (1974) (remarks of Rep. Vanik). /23/ Exec. Order No. 11,914 was revoked and replaced by Exec. Order No. 12,250, 45 Fed.Reg. 72995 (1980), which transferred the coordination and enforcement authority for Section 504 from HEW to the Department of Justice. The regulations adopted by HEW pursuant to that executive order remain in effect pending the adoption of new regulations by the Department of Justice. 45 Fed.Reg. 72997 (1980). The HEW regulations, 47 C.F.R.Part 85, were recently recodified at 28 C.F.R.Part 41. 46 Fed.Reg. 40686-40687 (1981). /24/ See 117 Cong.Rec. 39252 (1971) (remarks of Rep. Mink concerning Title IX); 110 Cong.Rec. 2468 (1964) (remarks of Rep. Celler concerning Title VI); 110 Cong.Rec. 6544 (1964) (remarks of Sen. Humphrey concerning Title VI). /25/ See Pet. App. 29a-35a. See also our Brief in Opposition to Petition, No. 81-651, cert. denied (Jan. 11, 1982). /26/ 34 C.F.R. 100.8(c); 45 C.F.R. 80.8(d). Cf. 20 U.S.C. 1682; 42 U.S.C. 2000d-1. /27/ 34 C.F.R. 100.8(c); 45 C.F.R. 80.8(d). Cf. 20 U.S.C. 1682; 42 U.S.C. 2000d-1. /28/ See pages 9-11, supra. /29/ Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1380 (10th Cir. 1981); Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir. 1980); Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1229-1230 (7th Cir. 1980) (private right of action at least until relevant implementing regulations are issued); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258-1259 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397 (1979); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977). This Court has not decided the question. See Pennhurst State School v. Halderman, 451 U.S. 1, 31 (1981) (remanding for consideration of Section 504 issues); University of Texas v. Camenisch, 451 U.S. 390 (1981) (issuance of preliminary injunction in private action under Section 504 moot); Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5 (1979) (issue not decided). But see Cannon v. University of Chicago, 441 U.S. 677, 694-698 (1979) (private right of action under Title IX of Education Amendments of 1972 presumed because patterned after Title VI of Civil Rights Act of 1964). See also S. Rep. No. 93-1297, 93d Cong., 2d Sess. 40 (1974); S. Rep. No. 93-1139, 93d Cong., 2d Sess. 25 (1974); H.R. Conf. Rep. No. 93-1457, 93d Cong., 2d Sess. 27 (1974). /30/ Suits against funding agencies for nonenforcement also have been recognized. See, e.g., Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en banc) (per curiam); Paralyzed Veterans of America v. Smith, No. 79-1979 WPG (C.D. Cal. June 17, 1981); Cherry v. Mathews, 419 F.Supp. 922 (D.D.C. 1976). /31/ Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 293 (1974). The agency's function is "not only to appraise the facts and to draw inferences from them but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies." United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241 (1945). /32/ See Pet. App. 52a, 60a-61a, 77a; Captioning for the Deaf, supra, 63 F.C.C.2d at 388; The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, supra, 26 F.C.C.2d at 918. See also Proposed Authorization of Transmission Teletext by TV Stations, 46 Fed.Reg. 60851 (1981). /33/ The Commission has learned from early experience that moving too quickly in areas of developing technology can lead ultimately to confusion, delay, and unnecessary expense to the public. In 1940, for example, the Commission first authorized FM radio broadcasting in a portion of the radio spectrum. Report on Frequency Modulation, 39 F.C.C. 29 (1940). Five years later, after broadcasters had invested in transmitting equipment and listeners had purchased some 400,000 FM receivers, the Commission determined that FM radio broadcasting should be moved to a different part of the radio spectrum. Nongovernment Frequency Allocations, 39 F.C.C. 68, 116-121 and 39 F.C.C. 222, 225-226 (1945). Similarly, in the early 1950s, the Commission authorized one technology for the transmission of color television broadcasts only to select a different technology three years later after the first action had been affirmed by this Court. See Color TV First Report, 41 F.C.C. 1 (1950), Color TV Second Report, 41 F.C.C. 111 (1950), aff'd, Radio Corp. of America v. United States, 95 F.Supp. 660 (N.D. Ill. 1950), aff'd, 341 U.S. 412 (1951); Color TV Transmissions, 41 F.C.C. 658 (1953). /34/ While the Commission has not imposed mandatory requirements under the public interest standard of the Communications Act, that does not mean that such requirements may not be properly imposed by funding agencies under the Rehabilitation Act. As we have noted, those two statutes differ in the purpose, reach, and means of enforcement. /35/ See note 5, supra. /36/ A separate decoding device that can be attached to a regular television set is sold at cost by Sears Roebuck & Co. for $289.95. Sears Spring/Summer 1982 Catalog 749 (1982). Sears also sells a color television set with a built-in decoder for $160 more than the price of tne same set without the device. The Internal Revenue Service has ruled that such devices qualify as itemized medical deductions when purchased by hearing-impaired persons. Rev. Rul. 80-340, 1980-2 Cum.Bull. 81. /37/ The National Captioning Institute charges approximately $2500 per hour of programming. /38/ The statutory basis for inquiring into character qualifications is found in Section 308(b) of the Communications Act, 47 U.S.C. 308(b), which states that "(a)ll applications for station licenses, or modifications or renewals thereof, shall set forth such facts as the Commission by regulation may prescribe as to the citizenship, character, and financial, technical, and other qualifications of the applicant to operate the station * * * " (emphasis added). /39/ See, e.g., Taft Broadcasting Corp., 76 F.C.C.2d 45, 48-51 (1980); FCC Form 303, 59 F.C.C.2d 750, 763 (1976), reconsideration granted in part and denied in part, 61 F.C.2d 27, 30 n.4 (1976); WTAR Radio-TV Corp., 55 F.C.C.2d 891, 895 (1975); RKO General, Inc., 47 F.C.C.2d 827, 829 (Rev. Bd. 1974); Northeast Oklahoma Broadcasting Co., 40 F.C.C.2d 543, 544 (Rev. Bd. 1973); Lake Erie Broadcasting Co., 33 F.C.C.2d 1009, 1010 (Rev. Bd. 1972); Bangor Broadcasting Corp., 33 F.C.C.2d 687, 689 (Rev. Bd. 1972). The Commission formalized this policy with respect to employment discrimination complaints in Memorandum of Understanding between the Federal Communications Commission and the Equal Employment Opportunity Commission, 70 F.C.C.2d 2320 (1978), petition for review dismissed, National Association of Broadcasters v. FCC, No. 78-2038 (D.C. Cir. Dec. 17, 1979). Under the terms of the Memorandum, "the FCC may in its discretion await final outcome of a court proceeding and may condition any action on a final court determination." 70 F.C.C.2d at 2328, 2332. /40/ As a general matter, the Commission will not consider allegations that a licensee violated the law if the appropriate enforcement authorities have determined the charges to be without merit. See, e.g., Sunshine Wireless, Inc., 72 F.C.C.2d 739, 742-743 (1979); Lake Erie Broadcasting Co., supra, 33 F.C.C.2d at 1010. However, when proceedings are terminated by settlement or by a consent judgment, the Commission may choose to inquire further into the underlying alleged misconduct. The Western Connecticut Broadcasting Co., 44 F.C.C.2d 673, 674 (1973). In addition, under unusual circumstances, the Commission may examine misconduct that has not yet resulted in a final court or agency ruling. See, e.g., Memorandum of Understanding between the Federal Communications Commission and the Equal Employment Opportunity Commission, supra, 70 F.C.C.2d at 2328. In all such cases, the Commission's concern is limited to the impact of the applicant's activities upon its qualifications as a licensee. National Organization for Women v. FCC, 555 F.2d 1002, 1017-1018 (D.C. Cir. 1977). /41/ See Questions Concerning Basic Qualifications of Broadcast Applicants, 28 Rad.Reg.2d (P&F) 705, 706 (1973); Grayson Enterprises, Inc., 79 F.C.C.2d 936, 940-941 & n.8 (1980). /42/ Ironically, the court of appeals followed the correct approach with respect to the Commission's decision concerning the requirements applicable to commercial stations, stating that it deferred to the Commission's judgment because the Commission "possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace" (Pet. App. 38a). But the court took a different, erroneous approach with respect to the Commission's determination concerning public television stations. /43/ In the decision below, the majority suggested that under this Court's decision in NAACP v. FPC, supra, the FCC must incorporate into its public interest standard consideration of the employment practices of its licensees (Pet. App. 21a-23a). NAACP v. FPC, however, does not hold that policies established in other statutes must be incorporated into the public interest mandate of a particular regulatory agency simply because such policies are consistent with the statutory responsibilities of that agency. Rather, that case held that it is within the discretionary authority of an agency to consider policies reflected in other statutes when those policies "are directly related to" the agency's purposes (425 U.S.at 671). The FCC's consideration of the employment practices of its regulatees was cited as an instance in which an agency's consideration of matters entrusted to other enforcement bodies nevertheless "can be justified." Id. at 670 n.7. See Office of Communication of the United Church of Christ v. FCC, 560 F.2d 529, 531 (2d Cir. 1977), which cites NAACP v. FPC, supra, for the proposition that the FCC is authorized, although not obligated, to issue regulations concerning employment discrimination. /44/ Indeed, this Court has recognized that, "(u)nderlying the (Communications Act) is recognition of the rapidly fluctuating factors characteristic of the evolution of broadcasting and of the corresponding requirement that the administrative process possess sufficient flexibility to adjust itself to these factors." FCC v. Pottsville Broadcasting Co., supra, 309 U.S.at 138. /45/ See FCC v. National Citizens Committee for Broadcasting, supra, 436 U.S.at 795 ("(W)hile the Commission does not have power to enforce the antitrust laws as such, it is permitted to take antitrust policies into account in making licensing decisions pursuant to the public-interest standard") (emphasis added). /46/ The court of appeals relied upon McLean Trucking Co. v. United States, 321 U.S. 67 (1944), to demonstrate the "settled proposition that a federal agency, in construing the requirements of the 'public interest' under its governing statute, must at least give weight to federal laws and public policies addressed to similar purposes" (Pet. App. 20a). Referring in particular to the antitrust laws, the Court stated in McLean (321 U.S.at 80) that the Interstate Commerce Commission must consider other laws and policies to "the extent * * * Congress indicates a desire to have those policies leavened or implemented" in the administration of the specific legislation committed to the ICC. In the case of Section 504, as we have demonstrated (see pages 21-29, supra), Congress has not expressed a desire to have the FCC undertake enforcement responsibilities. On the contrary, Congress committed the enforcement of that provision to the funding agencies and did not envision enforcement in licensing proceedings. /47/ By contrast, procedures have been established to prevent conflicts among the funding agencies. The Attorney General is responsible for coordinating those agencies' rule-making efforts (Exec. Order No. 12,250, 45 Fed.Reg. 72995 (1980)), and 28 C.F.R. 41.6 provides for interagency cooperation in enforcing Section 504 and regulations issued thereunder. Although it is conceivable that FCC regulation in this area could be coordinated with that of the funding agencies, the decision of the court of appeals deprives the FCC of the ability to coordinate in this fashion, since the court will not allow it to await action by those agencies. /48/ Moreover, it would be manifestly unfair to judge a public station's compliance with Section 504 during the previous license term by reference to an individualized standard to be determined only after an application for license renewal is filed. That, however, is what the court of appeals apparently has required.