Black Citizens for a Fair Media v. Federal Communications Commission

Opinion for the Court filed by Circuit Judge BORK.

Dissenting opinion filed by Circuit Judge WRIGHT.

BORK, Circuit Judge:

Petitioners, Black Citizens for a Fair Media, et al.,¹ challenge the Federal Communications Commission’s decision to adopt a simplified renewal application for radio and television broadcast licensees. This decision, made after a full rulemaking procedure, effectively eliminates from the license renewal application certain information which the Commission had previously required licensees to submit. Petitioners claim that this action is contrary to the substantive requirements of the Communications Act and that, in making the decision, the FCC failed to comply with the reasoned decision-making requirements of the Administrative Procedure Act and the Communications Act. We hold to the contrary and affirm the action of the Commission.

I.

This case is a companion to Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983), and National Black Media Coalition v. FCC, 706 F.2d 1224 (D.C.Cir.1983). All three cases involve challenges to the effort of the Federal Communications Commission (“FCC” or “Commission”) to reduce the regulatory burden on television and radio licensees.

In July 1980, the Commission filed a Notice of Proposed Rulemaking “to determine whether the public interest would be served by a revamping of [the] broadcast renewal application procedures.” Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, FCC No. 80-327 (July 11, 1980), at 1 (“Notice ”)² This Notice, which resulted in the decision now being challenged, proposed a new procedure for renewing broadcast licenses. In the past, licensees were required to file extensive applications³ containing, for example, such information as proposed non-entertainment and children’s programming, the number of public service announcements which were broadcast, and the degree of compliance with FCC requirements for ascertainment of community needs and interests.

After reviewing the mechanics of this system, the FCC stated that its experience

has shown that most licensees meet or exceed our operating guidelines .... [W]e have found that the best vehicle for bringing violations to our attention has been public participation in our processes through petitions to deny, informal objections, and complaints.

Notice at 2. The FCC concluded that the application might place an unnecessary administrative and paperwork burden on both licensees and the Commission.

The Notice therefore proposed a new application system that would consist of five different review components. First, all licensees applying for renewal would submit a postcard-sized simplified renewal application containing answers to five questions.⁴

The second component is a long form audit — essentially the old renewal form— which would be sent to at least 5% of all television and non-commercial radio stations. (The FCC represents that, in fact, it has been selecting 10% of the eligible licensees for the long-form audit since the new procedures went into effect. Brief for FCC at 9 n. 3.) Third, the FCC would continue to require licensees to make publicly available information as to how the licensees ascertained the problems and needs of their communities and the manner in which the licensee’s programming addressed these problems and needs. Television stations would also have to include programming logs and programming “promises” in their public files.⁵ The FCC stated its belief that this public file would make sufficient information available to permit the public to test any concerns regarding a licensee’s fulfillment of the public service requirement⁶ — an important consideration given the Commission’s reliance on public participation to bring violations to the Commission’s attention.

Fourth, the FCC’s Field Operations Bureau would conduct random audits of licensees to inspect technical operations and to insure that all required information was being made available to the public. Fifth, the Broadcast Bureau would conduct on-site inspections into charges of licensee misconduct. The Bureau would also have the power to conduct audits of licensees who submit problem applications. Other licensees might be audited on a random basis.

On May 11, 1981, after receiving numerous comments from various broadcast groups and “public interest” media groups, the FCC issued its report and order substantially adopting the proposals as put forward in the Notice. Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad.Reg.2d (P & F) 740 (1981) (“Decision ”). In promulgating the new system, the FCC stressed that the rulemaking “proceeding was never intended to change our current substantive requirements for the broadcast industry, and it does not alter the substance of licensee obligations to serve the public interest.” Id. at 748. Reconsideration of this decision was then sought by petitioner Henry Geller, but was denied. Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 87 F.C.C.2d 1127 (1981) (“Reconsideration Decision”). Petitioners now appeal to this court.

II.

Petitioners challenge the FCC’s adoption of the new license renewal system on two grounds. First, they contend that the FCC’s action violates the mandate of the Communications Act which requires the Commission to find that “the public interest, convenience, and necessity would be served” by a renewal of a broadcast license. 47 U.S.C. § 307(d) (1976), as amended by the Communications Amendments Act of 1982, Pub.L. No. 97-259, § 112, 96 Stat. 1087, 1093 (to be codified at 47 U.S.C. § 307(c)). Petitioners say the FCC is unable to make that affirmative determination without the inclusion of program-related questions in the renewal form. Second, petitioners argue that even if the FCC has the discretion to alter the renewal procedures in the proposed manner, the Commission failed to comply with the reasoned decision-making requirements of the Communications Act and Administrative Procedure Act. We address these points in order.

A.

In determining the mandate of the Communications Act, 47 U.S.C. § 151 et seq. (1976 & Supp. V 1981), this court must focus on the language of the Act itself, with due deference to the Commission’s interpretation of its own organic law. Subject to the review we discuss below, the FCC is entitled to reconsider and revise its views as to the public interest and the means needed to protect that interest, though it must give a sufficient explanation of that change. See Central Florida Enterprises, Inc. v. FCC, 598 F.2d 37, 49 (D.C.Cir.1978). The language of the Act imposes few specific requirements and the FCC is generally given broad discretion. 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.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940). For that reason, petitioners’ reliance on past FCC statements of its mandate is misplaced.

The key section which petitioners invoke in support of their argument is section 307(c)⁷ which provides in part:

Upon the expiration of any license, upon application therefor, a renewal of such license may be granted from time to time for a term of not to exceed five years in the case of television broadcasting licenses, for a term of not to exceed seven years in the case of radio broadcasting station licenses, and for a term of not to exceed ten years in the case of other licenses, if the Commission finds that public interest, convenience, and necessity would be served thereby.

47 U.S.C. § 307(d) (1976), as amended by the Communications Amendments Act of 1982, Pub.L. No. 97-259, § 112, 96 Stat. 1087, 1093 (to be codified at 47 U.S.C. § 307(c)). Petitioners also refer to section 309(a) which requires the Commission to determine for each application filed with it whether the public interest, convenience and necessity will be served by the granting of such application. 47 U.S.C. § 309(a) (1976).

Petitioners then argue that, although the “public interest, convenience and necessity” is not defined in the statute, the term “public interest”

has historically been defined in terms of nonentertainment programming .... [A] licensee’s past nonentertainment programming performance is the essential criterion upon which the affirmative public interest determination must be made at renewal time.

Brief for Petitioners Black Citizens for a Fair Media, et a1. (“BCFM”) at 22-23. In sum, petitioners’ position is that the simplified renewal application violates the FCC’s statutory mandate because it eliminates all questions concerning nonentertainment programming.⁸

The Commission does not dispute that it is required affirmatively to find that a license renewal is in the public interest, and it agrees that “[a] broadcaster seeking renewal must run on his record, and the focus of that record is whether his programming has served the public interest.” Brief for FCC at 14; see Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, 1007 (D.C.Cir.1966) (United Church I). All that is in dispute is whether the FCC is required to include programming-related questions in its renewal application.

An examination of the statute and case law clearly shows that such questions are not statutorily required and that the FCC has the discretion to determine whether to include them. First, it is obvious from reading the relevant statutory sections— sections 307(c), 308(b), and 309(a) of Title 47 — that Congress did not prescribe specific inquiry into programming. Indeed section 308(b) explicitly addresses the issue of applications and lists certain subjects about which the Commission may inquire.⁹ While the enumerated factors are not exclusive, it is significant that programming questions are not included. Moreover, since one would expect some degree of symmetry between the Commission’s discretion on applications and that on renewals, it is significant that this circuit has held in regard to application form questions that

[Section 308(b) ] leaves it within the discretion of the Commission to decide which facts relating to such factors it wishes to have set forth in applications.

National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d 630, 645 (D.C.Cir.), cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976). Petitioners contend, in effect, that an empowering statute that explicitly grants the Commission broad authority must be read implicitly to impose a highly specific duty. Without more, this is a dubious proposition.

A review of the legislative history of the Communications Act and past actions of the FCC reinforces our reading of the statutory text. Prior to 1952, the Communications Act limited the FCC’s discretion to grant renewal by requiring the FCC to employ the same practices and considerations it would employ if it were granting an initial license. In 1952, however, Congress eliminated this requirement and inserted the more general “public interest, convenience, and necessity” standard. Communications Act Amendments, 1952, ch. 879, § 6(a), 66 Stat. 711, 714-715. The House Report clearly shows that Congress wanted to reduce the regulatory burden on licensees and grant the FCC discretion to tailor the renewal form as it saw fit. See H.R.Rep. No. 1750, 82d Cong., 2d Sess., reprinted in 1952 U.S.Code Cong. & Ad.News 2234.¹⁰

In the past, the Commission has frequently added and subtracted questions as it deemed appropriate. For example, it was not until the 1960’s and 1970’s that questions concerning ascertainment of community needs and children’s programming were added to the form.¹¹ Certainly, if the FCC can add specific questions, it can delete them when circumstances warrant.

Moreover, the Commission frequently decides to monitor and enforce certain aspects of a licensee’s performance — e.g., compliance with the fairness doctrine — on an ad hoc basis rather than at the time for license renewal. See National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095, 1115-16 (D.C.Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978) (Communications Act does not require FCC to review fairness doctrine compliance at renewal time; decision to review on ad hoc basis is reasonable exercise of discretion). Thus, the legislative history of the Communications Act and past FCC actions make clear that the FCC is in no way required to retain certain questions, whether program-related or not, in the renewal application.¹²

Finally, case law strongly supports the broad exercise of FCC discretion both to define the public interest and to determine what procedures best assure protection of that interest. As the Supreme Court has pointed out:

Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission’s licensing authority is invoked ... were explicitly and by implication left to the Commission’s own devising, so long, of course, as it observes the basic requirements designed for the protection of private as well as public interest.

FCC v. Pottsville Broadcasting Co., 309 U.S. at 138, 60 S.Ct. at 439. Moreover, the Supreme Court recently found that this discretion is particularly broad in the area of programming. In FCC v. WNCN Listeners Guild, 450 U.S. 582, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981), the Court upheld a decision by the FCC not to review entertainment format changes in the context of a license renewal application, noting that “the Commission’s judgment regarding how the public interest is best served is entitled to substantial judicial deference.” Id. at 596, 101 S.Ct. at 1275. See also National Tour Brokers Association v. ICC, 671 F.2d 528, 531-32 (D.C.Cir.1982) (upholding revised ICC licensing procedure involving “public interest” determination; prior ICC interpretation of statute does not forever bind agency).¹³ There can be little question that the FCC is free under the Communications Act to alter the license renewal application as it sees fit — provided that the Commission still has sufficient information to make the required “public interest” determination.

This latter issue is the crux of petitioners’ complaint. Petitioners contend that even if the FCC has discretion to alter the application, the changes that the Commission has adopted so completely eliminate important information as to make meaningful enforcement of the public interest standard impossible. ' Although the FCC has deleted from the application many questions which previously supplied substantial information, we believe that it was not arbitrary or capricious for the Commission to conclude, in the exercise of its discretion, that it still has sufficient information to make the “public interest” determination.

The Commission does not propose to rely solely on the postcard application to make the “public interest” finding. The postcard renewal form is one of several sources of information (direct and indirect) on the basis of which the Commission will make its renewal decision. This information, taken together, does permit the FCC to make the required determination that a licensee is in compliance with the substantive policies of the Commission — policies that are still concerned with programming and are not affected by the decision in question.¹⁴

A brief review of the renewal system illustrates this point. First, the Commission has the renewal form itself which provides (1) information concerning a licensee’s equal opportunity program, (2) a description of a licensee’s other media interests, (3) a certification of compliance with the alien ownership requirements of the act, (4) disclosures about a licensee’s character, and (5) a certification that the licensee has placed all required documents in its public file.

Second, the FCC will have the input of the public. This is in many ways the most critical information, as the Commission has “found that the best vehicle for bringing violations to [its] attention has been public participation in [its] processes through petitions to deny, informal objections, and complaints.” Notice at 2. Under the new renewal system public input provides information in two ways. As the Notice pointed out, the public brings violations to the attention of the FCC. Thus, public silence supports an inference that a licensee has been complying with FCC policies.¹⁵ Such an inference is of course not in any way conclusive; but it is a factor which the FCC may weigh in making a “public interest” determination.

Petitioners contend that this reliance on the public constitutes an impermissible shift of the FCC’s statutory duty onto the public. This argument, however, overstates the FCC’s reliance on public participation. Contrary to assertions by petitioners, the new renewal system does not rely entirely on the public. Rather, information provided by the public is but one factor, albeit an important factor, in the overall renewal scheme. Moreover, the degree of reliance is not unreasonable because, as the Commission notes, the public is quite aware of licensees’ programming. Brief for FCC at 22. Such reliance on the public is especially warranted in an era of limited resources when the FCC must allocate its budget over a wide range of regulated activities. Cf. United Church I, 359 F.2d at 100A-05 (recognizing importance of public participation in renewal process, given limited staff and resources). The public’s responsibility in the prior system was also substantial. Indeed, it was the FCC’s recognition of the importance of the public’s role that led, in part, to the promulgation of the new system.

Finally, petitioners argue that, even if the FCC's reliance on the public is permissible, the Commission has made it impossible for the public to play an active role in the renewal procedure. In this regard, petitioners point to FCC actions which petitioners claim have severely limited the information licensees must provide to the public.¹⁶ In order to determine the validity of this claim, we examine separately the public file requirements of television and radio licensees.¹⁷

Television licensees must place a substantial amount of information in their public file. For example, a licensee must include documentation concerning ascertainment of community problems as well as an annual list of no more than ten significant problems or needs of the community served, along with examples of programs which meet these problems or needs. 47 C.F.R. § 73.3526(a)(9) (1982). In addition, television licensees must maintain program logs for the composite week and keep on file current “promises” concerning presentation of nonentertainment programming; if a licensee changes its general plans for such programming, it must then file an update noting the changes and the new programming promises.¹⁸ Id. § 73.-3526(a)(8). Finally, television licensees must also maintain raw program logs (a written record of everything a licensee broadcasts), id. § 73.3526(a)(10), and make these logs available for public inspection in accordance with certain procedures, 47 C.F.R. § 73.1850 (1982).¹⁹ This information is sufficient to permit the public to review a station’s programming performance.²⁰

In contrast, radio licensees need file only an annual issues/programs list²¹ and an explanation of the methodology used to compile the list.²² Petitioners argue that this list is too insubstantial to permit meaningful review by- the public of a station’s programming and urge the inclusion of program logs. In a companion case dealing with the FCC’s general deregulation of radio, we remanded the Commission’s decision to do away with the logging requirement. Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983) (United Church III). On remand, the Commission will decide what logging requirement, if any, is appropriate in the deregulated environment. Given the Commission’s wide latitude in the practical implementation of Congress’ will, we do not find that the renewal procedure mechanism adds any new factors to the calculus already required by United Church III. The new renewal procedure will function acceptably given whatever logging requirement the Commission (subject to judicial review) eventually adopts in response to our .remand. Accordingly, we neither invalidate the new renewal system on this basis nor provide any additional condition that any logging requirement must meet.

Finally, the Commission has before it a presumption of service in the public interest. Decision at 748. Petitioners attack this presumption as being contrary to section 309(c) of the Communications Act and such cases as United Church I, 359 F.2d at 1008, and Office of Communication of the United Church of Christ v. FCC, 425 F.2d 543, 545 (D.C.Cir.1969) (United Church II), which hold that a licensee must affirmatively demonstrate that renewal will serve the public interest. This attack is misplaced. Neither the statute nor the legislative history precludes the Commission from inferring service in the public interest by existing licensees, given that the inference is rebuttable and the regulatory environment provides strong incentives for operation in the public interest.²³

Those incentives are generated largely by the tools which the Commission uses to discover and punish violators. Investigation of citizen complaints is one important tool. In addition, the long form audit and onsite inspections by the Field Operations Bureau and Broadcast Bureau are designed not only to provide the Commission with concrete information on the specific licensees audited but also to deter licensees from noncompliance with the substantive requirements. The Commission can also prevent potential violations by punishing those discovered with fines and license revocations. The severity of such sanctions, see, e.g., WADECO, Inc. v. FCC, 628 F.2d 122 (D.C.Cir.1980), and the willingness of the FCC to impose them make more reliable a presumption that a licensee will adhere to the substantive requirements of the Commission and the Act.

Petitioners respond to this contention by arguing that only a small percentage of licensees are subject to the random audit and spot checks and that consequently the deterrent effect of such devices is minimal. All licensees will be affected by the knowledge some unknown number will be examined and, if appropriate, visited with severe sanctions. Moreover, the determination concerning degrees of deterrence is precisely the type of judgment which is best left to the Commission. Nor is the fact that the FCC may not be able to identify all noncomplying licensees a reason to overturn the decision. No regulatory scheme which depends in part on the good faith of the licensee will be utterly fool-proof; the previous system certainly was not. Both approaches ultimately rely on presumptions and on the good faith of the licensees.

The simplified renewal application also offers concrete benefits in the form of reduced paperwork and expense. While these factors are not, of course, grounds for ignoring a statutory mandate, they are an advantage the Commission is entitled to weigh in making its decision. The Federal Paperwork Reduction Act of 1980, Pub.L. No. 96-511, 94 Stat. 2812 (codified at 44 U.S.C. §§ 3501-3520 (Supp. V 1981)), was enacted “to minimize the federal paperwork burden,” 44 U.S.C. § 3501(1) (Supp. V 1981). This is to be accomplished by eliminating regulatory burdens “which are found to be unnecessary and thus wasteful .... ” S.Rep. No. 930, 96th Cong., 2d Sess. 3, reprinted in 1980 U.S.Code Cong. & Ad.News 6241, 6243. Congress specifically applied this policy to the FCC’s domain when it extended the broadcast license term to five years for television stations and seven years for radio. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, § 1241, 95 Stat. 357, 736.²⁴ Thus, the reduction in regulatory burden which the FCC has effected is not just a result of FCC impulse, but rather stems directly from the Paperwork Reduction Act and congressional policy with respect to the FCC. There can be little doubt that this mandate provides further support for the FCC’s decision.

We conclude that the. new license renewal system is adequate to permit the Commission to make the determination that a license renewal is in the public interest.

B.

Petitioners’ second major argument is that even if the FCC has the statutory discretion to adopt the simplified renewal application, the Commission has nevertheless failed to comply with reasoned decision-making requirements of the Communications Act and the Administrative Procedure Act. The Commission’s decision, however, readily survives the “searching and careful” review to which we subject it. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

Here, our review must include an additional special factor: the FCC’s adoption of the simplified renewal application represents a significant change in policy. The court must, therefore, be satisfied that the agency was aware that it was changing its views and has articulated permissible reasons for the change. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).²⁵

This is not a case where an agency altered course without acknowledging or recognizing the change. The first paragraph of the Notice states that the proceeding was being initiated to determine whether the FCC should “revamp” its renewal procedures. Notice at 1.

Nor is this a case where the agency has failed to provide a reasoned explanation for its change in policy. Here the Commission clearly set out its rationale; namely, that the same degree of compliance could be achieved with the simplified renewal application. While this finding is not in itself rigorously deduced, it is well established that greater deference is given administrative bodies when their decisions are based upon “judgmental or predictive” conclusions. FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813-14, 98 S.Ct. 2096, 2121-22, 56 L.Ed.2d 697 (1978). Accord FCC v. WNCN Listeners Guild, 450 U.S. at 595-96, 101 S.Ct. at 1274-75. The FCC also clearly stated that adoption of the simplified renewal application would in turn “free up scarce resources for use in other areas.” Decision at 747. This finding was factually supported in the record by, for example, estimates of the funds that would be saved by adoption of the new form. E.g., Decision at 754.

Petitioners specifically attack two aspects of the Decision. Petitioners assert that the basis of the FCC’s decision was the conclusion that past experience indicated most licensees comply with the substantive regulations.²⁶ They then contend that this conclusion does not warrant altering the procedures and, if anything, supports retaining the old system.²⁷ This argument, however, distorts the Commission’s position. The Commission discarded the old system for the new not because the old system worked, but rather because it believed the new system would work just as well:

We believe that we can discharge our obligations by adopting a simplified renewal application (SRA)....

Decision at 741. In overlooking the Commission’s conclusion that the new method could achieve equivalent compliance, petitioners reveal the true nature of their complaint; they believe the old system works better and wish to substitute their judgment for that of the Commission. When seen in that light, petitioners’ argument must fail.²⁸

As we have noted, and as petitioners concede, the Communications Act gives the FCC “substantial discretion to reconsider and review the appropriateness of [its] regulations including the continued need for particular information in connection with renewal applications.” Decision at 747; see National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d at 645. Moreover, the FCC has worked with renewal applications for many years and has developed considerable expertise and experience.²⁹ See West Michigan Telecasters, Inc. v. FCC, 396 F.2d 688, 691 (D.C.Cir.1968) (court “defer[s] to the expertise and experience of the Commission within its field of specialty and would reverse only where the Commission’s position is arbitrary, capricious or unreasonable”).

Petitioners also argue that the FCC cannot dispense with the old system on the basis of a desire to relieve itself and/or licensees from regulatory burdens. Again, however, this argument is premised on petitioners’ belief that the new system will not serve the public interest. The FCC has reasonably rejected that premise and we must reject the conclusion. The Commission may consider regulatory burden in choosing between two procedures, each of which serves the public interest. The FCC is, moreover, statutorily authorized to reduce the regulatory burden on licensees and we find this to be additional support for the Commission’s action.

Accordingly, the orders here under review are

Affirmed.

1 . Petitioners also include Henry Geller, Chinese for Affirmative Action, National Council of La Raza, and the NAACP.

2 . A summary of this Notice may be found at 45 Fed.Reg. 47,444 (1980).

3 . As the Commission noted, the commercial television application was 21 pages long, the non-commercial television application was 15 pages long, and the commercial radio form, while only two pages, was still a “substantial filing” by the time exhibits and attachments were added. Notice at 1.

4 . These questions include (1) the licensee’s name and location, (2) whether the licensee has filed annual employment reports, (3) whether the license is in compliance with section 310 of the Communications Act which deals with alien control or ownership of broadcast stations, (4) whether a court or tribunal has entered an adverse finding as to particular conduct bearing on a licensee’s character, and (5) whether a licensee has placed all required documents in its public file. Notice, Appendix A.

5 . Radio stations would not have to include such information under the FCC’s radio deregulations. See Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C.Cir.1983).

6 . Radio Broadcast Services: Revision of Applications for Renewal of License of Commercial and Noncommercial AM, FM, and Television Licensees, 49 Rad.Reg.2d (P & F) 740, 747 (1981).

7 . Former subsection (d) of section 307 was redesignated subsection (c) and amended by the Communications Amendments Act of 1982, Pub.L. No. 97-259, § 112, 96 Stat. 1087, 1093.

8 . Petitioners also complain about the elimination of questions relating to certain entertainment programming such as children’s programming.

9 . Section 308(b) provides:

All 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; the ownership and location of the proposed station and of the stations, if any, with which it is proposed to communicate; the frequencies and the power desired to be used; the hours of the day or other periods of time during which it is proposed to operate the station; the purposes for which the station is to be used; and such other information as it may require. The Commission, at any time after the filing of such original application and during the term of any such license, may require from an applicant or licensee further written statements of fact to enable it to determine whether such original application should be granted or denied or such license revoked. Such application and/or such statement of fact shall be signed by the applicant and/or licensee.

47 U.S.C. § 308(b) (1976).

10 . The Report notes:

Considerable dissatisfaction was expressed ... with the burdensome requirements which applicants for renewal sometimes have been compelled to meet in the way of furnishing detailed information.

H.R.Rep. No. 1750, supra, at 8, reprinted in 1952 U.S.Code Cong. & Ad.News at 2242.

11 . See Commission En Banc Programming Inquiry, 44 F.C.C. 2303, 2316 (1960); Formulation of Rules and Policies Relating to the Renewal of Broadcast Licenses, 43 F.C.C.2d 1, 57 (1973).

12 . The statute does require the inclusion of certain technical information such as the nature of licensee ownership, although it does not prescribe specific questions. 47 U.S.C. § 308(b) (1976).

13 . National Tour Brokers is in many ways analogous to this case. In the former, the National Tour Brokers Association challenged the ICC’s simplification of its licensing procedures for passenger tour brokers. The court upheld the agency’s action noting that the statute did not mandate the previous licensing system and that “[i]n the absence of a definition of ‘public interest’ by Congress that would require individual case-by-case determinations, the ICC was within its authority to utilize a general finding that the public interest is served by the licensing of ‘fit’ applicants as brokers.” 671 F.2d at 531.

14 . Petitioners concede that the great majority of broadcasters “are responsible and will follow the policies, with or without these supplementary procedures.” Brief for Petitioner Henry Geller at 11. Thus, the question is whether the renewal system will ferret out the few broadcasters who do not comply with the substantive policies.

15 . From all indications, the public has not been reticent about registering complaints. During the 12-month period through October 1981, approximately 3000 programming-related complaints were sent to the FCC, not including organized write-in campaigns. Brief for FCC at 22 n. 25.

16 . It should be noted that the Decision is premised, in part, on the Commission’s belief that sufficient information is available in the public file.

17 . Licensees must certify on the renewal application that all required information has been placed in the public file. If a licensee so stated but in fact failed to provide such information, it would commit a serious violation and would be subject to FCC sanctions.

18 . Reconsideration Decision at 1129. The Commission has defined a “substantial deviation,” the occurrence of which requires an update, as a 15% decrease in any one of the three nonentertainment categories or as a 20% decrease overall. Id. at 1129 n. 5.

19 . Petitioners contend that raw logs are unhelpful because they contain such a large number of data that a long, painstaking analysis is required if the logs are to provide information as to a licensee’s performance. The petitioners would prefer composite week logs which tabulate into programming categories a licensee’s programming. Thus, petitioners specifically complain about the FCC’s elimination of Form 303-A, a yearly tabulation of composite week logs in which percentage figures for news, public affairs, and “others” (exclusive of entertainment and sports) are listed.

The FCC eliminated Form 303-A because in its view the burden on the licensee of completing the form was unwarranted. Reconsideration Decision at 1128. However, the citation accompanying this statement refers to a paragraph of the Decision which discusses the burden on the Commission. Decision at 754-55. Either of these burden reductions is an advantage the Commission is entitled to weigh in its decision; under the new system, the Commission need not review the logs and the licensee is not required to prepare them (although it may do so). The assessment of this benefit and the importance of tabulated logs we leave to the Commission. There is clearly no explicit statutory requirement that either the Commission or the licensee tabulate these data. Indeed, the Commission did not require the submission of Form 303-A until 1973. Renewal of Broadcast Licenses, 43 F.C.C.2d 1, 70 (1973).

20 . Petitioner BCFM also complains that the FCC’s decision to eliminate required bi-monthly public service announcements which inform the public of the licensee’s obligation to operate in the public interest and of the various ways for the public to express its views about the licensee’s performance. (The FCC retained the requirement that licensees make such announcements during the six months prior to the renewal date.)

The complaint is unfounded because the Commission made a specific finding that the announcement did not generate public participation. Petitioners offer nothing other than their own opinion to contradict this finding. Accordingly, we uphold the Commission’s action.

21 . This list consists of issues which the licensee has determined are important to the community and programs broadcast in response to those issues.

22 . While this list is placed in the public files, it is not submitted to the FCC. This does not detract from the list’s importance, however, because the list provides information to the public, and it is the public’s reaction — either complaints or silence — which in turn provides information to the Commission.

23 . The inference is also supported by the Commission’s traditional limited reliance on licensee good faith.

24 . The Conference Report noted:

[T]he extension of terms for broadcast licensees would help to reduce costs to broadcasting and the Commission costs, while at the same time allowing the Commission to do a better job reviewing broadcasters’ performance.

H.R.Rep. No. 208, 97th Cong., 1st Sess. 895 (Conference Report), reprinted in 1981 U.S. Code Cong. & Ad.News 1010, 1257.

25 . In emphasizing that we pay special attention to changes in agency policy, we have sometimes referred to our scrutiny as being “heightened.” E.g., NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). Of course, this scrutiny consists in ensuring that “the agency was aware it was changing its views and has articulated permissible reasons for the change, and also that the new position is consistent with the law.” Id. We take pains to ensure that an agency knows what it is doing in enacting a new rule and closely scrutinize any agency action to assess both the reasons articulated and the action’s conformity with law. In other words, the nature of our scrutiny is the same whether the action is wholly new or a revision of an older rule; a change is another factor to scrutinize, not a warrant for employing a different standard of review. Our scrutiny is heightened in that it includes this additional factor.

26 . In support of this assertion, petitioners point to the following language:

We observe that over the years most licensees have met or exceeded our operating guidelines and a renewal process which has consumed substantial Commission resources has resulted in few applications designated for hearing for failure to comply with our rules and policies.

Decision at 743. This statement was not the basis of the FCC’s decision; rather, it was merely an observation that the previous guidelines were to some degree excessive. The more important basis of the decision was that the new system would work equally well.

27 . Petitioners state:

The abandonment of efficacious procedures, on the ground, that they were efficacious, hardly constitutes reasoned decision-making. If anything, the Commission’s rationale merely confirms the continued need for the traditional renewal procedures ....

Brief for Petitioners BCFM at 40.

28 . Petitioners also assert that reasoned decision-making requires a comparative assessment of the two renewal schemes and implies that the FCC should have conducted a study of some kind. This argument is without merit. The FCC’s expertise permits it to make the decision without resorting to an independent study. See NAACP v. FCC, 682 F.2d at 1001 (rejecting argument that FCC should have conducted independent study prior to changing its Top-Fifty Policy).

29 . In National Tour Brokers, 671 F.2d at 533, the court found that the ICC’s decision to simplify licensing procedures was not unreasoned because the “decision was based on the Commission’s long experience administering the existing license rules and its consequential dissatisfaction with those procedures.” Similarly, in this case, the FCC’s experience, which is fully documented in the record, provides a reasoned and rational basis for the decision.