Full opinion text
Opinion for the Court filed by Circuit Judge MIKVA. MIKVA, Circuit Judge: Of the technological innovations currently revolutionizing the communications field, the most recent, and potentially the most significant, is direct broadcast satellite service (DBS). DBS involves the transmission of signals from the earth to highpowered, geostationary satellites which then beam television signals directly to individual homes equipped to receive them. Use of satellites massively extends the range of a broadcaster’s voice by freeing it from the atmospheric limitations that traditionally limit terrestrial broadcasters to narrow broadcast areas; a single DBS signal will eventually be capable of reaching the entire continental United States. For this reason and others, DBS promises several significant advantages over existing television technology: high-quality service to individuals in rural or remote areas where conventional broadcasting is inefficient; the addition of many more channels even in urban areas already receiving several television signals; “narrowcasting” of programs to specialized tastes through the ability to aggregate small, widely dispersed audiences; the development of higher quality visual and audio signals through use of high-definition-television signals; and television transmission of non-entertainment programming, such as medical data and educational information. The regulatory approach to DBS taken by the Federal Communications Commission (the FCC or the Commission), which we review today, is as novel as the technology with which it is concerned. In essence, the Commission has chosen to deregulate DBS even before the service is born. Two proceedings are before us today that embody that approach: the Commission’s Interim DBS regulations, which delineate the basic contours of the regulatory environment that DBS owners and operators will face when DBS becomes operational, and the approval of an actual application to construct this country’s first multi-channel DBS system. We find that, on the whole, the FCC has done a commendable job in assuring that regulation in the communications field not impede new technologies that offer substantial public benefits, and we therefore uphold the major portion of the interim DBS regulations and approve in its entirety the FCC’s grant of the application to construct an actual DBS system. We also find, however, that in its zeal to promote this new technology, the FCC gave short shrift to certain of its statutory obligations, and we therefore vacate part of the Interim DBS regulations; in addition, our approval of other parts is qualified by several guidelines to which the Commission must hew in its continuing oversight of this nascent technology. Background In the early 1960s, the development of satellites that could transmit signals over great distances offered new promise of expanding the availability of communications services throughout the United States. To develop this satellite technology, Congress created the Communications Satellite Corporation (COMSAT), a privately run, government-subsidized company which was to provide international communications links via satellite. See Communications Satellite Act of 1962, now codified at 47 U.S.C. §§ 701-44. Because early communications satellites emitted relatively weak signals that could be received by only large and expensive “dish” antennas and radio receivers, these satellites were not suited to deliver broadcast signals directly to a large number of individual homes. To be practical, broadcasting directly to viewers’ residences requires very small and inexpensive antennas and receivers which, in turn, require high-powered satellites. In August 1979, however, COMSAT announced its belief that satellite and receiver technology had advanced to the point that a commercial DBS system was feasible. Even before this announcement, the development of DBS had received considerable regulatory attention both internationally and in the United States. Unlike conventional broadcasting, which generally has no extraterritorial effects, DBS requires international supervision both because the signals sent to and from a DBS satellite will spill across international borders and because agreement is needed to fix the orbital locations in space at which various countries’ DBS satellites will be located. Much of the early regulatory attention focused on what part of the spectrum to assign for transmission of DBS signals. Domestically, the FCC in 1973 indicated that some spectrum space in the 11.7-12.2 GHz band might eventually be set aside for DBS systems. Frequency Allocations — Satellite Services, 28 Rad.Reg.2d (P & F) 33 (1973). In the course of preparing for the 1979 World Administrative Radio Conference (WARC-79), the Commission then decided to seek international agreement to shift the international allocation of DBS to the 12 GHz band in order to accommodate future U.S. DBS requirements. World Administrative Radio Conference, 70 F.C.C.2d 1193, 1252 (1978). WARC-79 did allocate for international purposes the 12 GHz band to DBS; WARC-79, however, postponed assignment of specific DBS orbital locations and frequencies among Western Hemisphere countries pending completion in 1983 of a Regional Administrative Radio Conference (RARC-83). Soon after WARC-79 concluded, the Commission began to consider how to protect and advance U.S. interests in DBS use of the 12 GHz band. On October 29, 1980, the FCC initiated a domestic proceeding to consider the prospects for United States DBS service. 45 Fed.Reg. 72719 (1980) (1980 Notice). The 1980 Notice noted the rapid advances being made in DBS technology and observed that DBS was a new medium with which the Commission had no practical experience. The FCC therefore specifically sought comments on whether it should adopt interim DBS regulations that would permit both the construction of experimental DBS systems prior to RARC-83 and the operation of DBS prior to the adoption of permanent domestic DBS rules. In addition, the Commission solicited comments on the feasibility of different sharing arrangements between DBS and existing terrestrial systems occupying the 12.2-12.7 GHz band, the amount of spectrum that should be allocated to each of these two mutually exclusive services, and the costs involved and lead time required if terrestrial users had to move to frequency bands other than 12 GHz. During the course of proceedings under the 1980 Notice, Satellite Television Corporation (STC), a subsidiary of COMSAT and an intervenor in the present action, filed an application to construct this country’s first multi-channel DBS system. STC urged the FCC to consider the application in a separate and expedited adjudicatory proceeding, rather than wait until rulemaking had been completed and formal DBS regulations promulgated. The Commission declined to process STC’s application in this fashion and instead placed the application in the DBS docket so that the question of authorizing DBS prior to RARC-83 could be considered in the context of a specific DBS application. The FCC then provided additional time for interested parties to comment on DBS and on the STC application. In June 1981, after six months of reviewing comments filed during the original and extended comment periods, the Commission released a Notice of Proposed Policy Statement and Rulemaking. 86 F.C.C.2d 719 (1981) (DBS Notice). In the DBS Notice, the Commission formally proposed to establish interim DBS regulations prior to RARC-83 and explained that the Commission was unwilling to propose permanent DBS regulations at that time because it did not yet know what international constraints RARC-83 would impose on domestic DBS. Nonetheless, according to the Commission, interim DBS rules were warranted to avoid “unnecessary delays” and to gain information that would aid in setting permanent regulatory policies. 86 F.C.C.2d at 721. To this end, the proposed interim regulations were designed to assure “maximum flexibility” — and to impose minimum regulation — during the interim period. On July 14, 1982, the Commission in fact adopted interim DBS regulations (DBS Order). 90 F.C.C.2d 676 (1982). The Commission stated that immediate authorization of DBS service would significantly accelerate realization of the benefits associated with the technology and would strengthen this country’s international position at RARC-83 by permitting the United States negotiators to “present immediate and demonstrable needs rather than vague conjectures as to possible requirements” for orbital slots and frequencies. Id. at 684. Subsequently, the Commission, on October 13, 1982, granted STC’s application to construct an experimental DBS system that would provide subscription television service to the general public. STC Decision, 91 F.C.C.2d 953 (1982). Although STC’s proposal called for service eventually covering the entire continental United States, the STC Decision granted STC construction authority for only the first phase of its proposed system, which involves two satellites designed to provide three channels of subscription television service over the eastern portion of the United States. (STC has subsequently asked the Commission for authority to provide six, rather than, three, channels of service, but the Commission has not yet acted on this request.) The grant was also conditioned upon the outcome of RARC-83 and included neither launch and operational authority nor assignment of specific frequencies and orbital locations for STC’s DBS system. In this action, petitioners the National Association of Broadcasters (NAB) and the County of Los Angeles (the County) seek to overturn the interim DBS orders and the grant of STC’s DBS application. A congery of intervenors also has filed briefs on both sides of the important issues at the forefront of modern communications policy raised by these cases. We now turn to those issues. Analysis I. The FCC’s Power to Approve Non-Local Broadcast Service DBS technology is inherently unsuitable for the provision of traditional local broadcast service. The satellites involved cannot presently be located with the requisite precision nor economically equipped with a sufficiently large antenna to provide a spot beam capable of covering only a traditional size local community. STC Application Volume 1, at 55 n. 100; JA 693 n. 100. Moreover, many of the benefits of DBS— including narrowcasting and provision of service to less densely populated areas— could not practically be realized by a “local” DBS system. As a result, DBS, as authorized by the FCC, will provide regional or national service. The STC Decision, for example, authorizes transmission service to the entire Eastern coast of the United States. Petitioner NAB argues that the FCC does not have the power to approve a technology that will sever broadcast services from their traditional link to a particular community. NAB seeks to rest this luddite argument on section 307(b) of the Communications Act of 1934, as amended, 47 U.S.C. § 307(b) (the Act), which provides: the Commission shall make such distribution of licenses ... among the several States and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same. 47 U.S.C. § 307(b) (emphasis added). NAB reads this provision to require that broadcast licenses indeed be “distributed” among the “States” and “communities;” NAB thus concludes that the Act mandates a system of local broadcast licensing and service with which STC’s authorization, and DBS in general, is “fundamentally irreconcilable.” We do not think it necessary to ascribe to the framers of the Act an intent so shortsighted as to preclude new technology that offers the promise of substantial public benefit. The plain language of the Act does not compel such impracticable consequences. Cf United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322 (1929) quoted infra at 1202. Instead, the Act emphasizes that the FCC’s paramount responsibility is to achieve a “fair, efficient and equitable distribution of radio service ... so as to make available, as far as possible, to all the people of the United States a rapid, efficient, nation-wide, and world-wide wire and communications service,” 47 U.S.C. § 151. The ultimate touchstone for the FCC is thus the distribution of service, rather than of licenses or of stations; the constituency to be served is people, not municipalities. Moreover, the Commission also has an obligation to “encourage the larger and more effective use of radio in the public interest.” 47 U.S.C. § 303(g). Given this obligation to facilitate expansion of this country’s communications network and in light of the broad grant of authority delegated to the FCC to deal with “the rapidly fluctuating factors characteristic of the evolution of broadcasting,” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940), it would be anomalous to read the Act to prevent the FCC from authorizing an innovative system of technology capable of conferring substantial benefits on all Americans. See Wold Communications, Inc. v. FCC, 735 F.2d 1465 at 1475 (D.C.Cir.1984) (“The drafters of the Communications Act had no vision of a [satellite] industry, but they designed the statute ‘to avoid the necessity of repetitive legislation,’ by arming the Commission ‘with sufficiently elastic powers such that it could readily accommodate dynamic new developments in the field of communications.’ ”) (quoted cases omitted). Just as we have held that the Act does not bestow a vested right on any particular licensee to retention of its license, see Victor Broadcasting, Inc. v. FCC, 722 F.2d 756 (D.C.Cir.1983), so too we now hold that the Act does not entrench any particular system of broadcasting: existing systems, like existing licensees, have no entitlement that permits them to deflect competitive pressure from innovative and effective'technology. In so holding we do not denigrate the importance of local programming to a national broadcasting system that is designed to serve the public interest. See Pasadena Broadcasting Co. v. FCC, 555 F.2d 1046, 1050-51 (D.C.Cir.1977). We need not define the outer limits of the Commission’s authority to make this country’s broadcasting system a regional or national one, however, for two reasons. First, the DBS Order does not by its terms eliminate local programming. Second, the Commission explicitly found that DBS will merely supplement the existing local broadcast system, rather than replace it, DBS Order, 90 F.C.C.2d at 691-92, and we find no error in that finding. We therefore need not decide how far the Commission may go toward the elimination of local programming to hold that not every communications service approved by the Commission need be tied to a local community. It is true that the Commission historically has followed a policy of “localism” as a sound means of promoting the statutory goal of efficient public service. See Malrite T.V. v. FCC, 652 F.2d 1140, 1144 (2d Cir.1981). Although a regulated industry may come to regard an agency’s policies as immutable elements in the background against which the industry is set, there is no need for the agency itself to confuse means with ends; when new technology permits the statutory objectives to be attained through novel means that require the alteration or abandonment of past Commission policies, the Commission may adjust its means to retail fidelity to the legislative end. See Washington Utilities & Transportation Commission v. FCC, 513 F.2d 1142, 1157 (9th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975) (“Regulatory practices and policies that will serve the ‘public interest’ today may be quite different from those that were adequate to that purpose in 1910, 1927, or 1934, or that may further the public interest in the future.”). Indeed, the Commission has long been criticized as acting primarily to preserve the status quo, thus discouraging innovative technology, see, e.g., E. Krasnow & L. Longley, The Politics of Broadcast Regulation 20 (1973); D. DeLuc, Cable Television and the FCC 28 (1973); when it instead seizes upon the “comprehensive powers to promote and realize the vast potentialities of radio” that Congress has conferred upon it, National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943), the Commission is to be commended rather than castigated. This is not a case in which a regulatory agency is rushing willy nilly to remove past regulations in the face of a clear congressional mandate to the contrary; here the Commission instead has sought aggressively to fulfill the statutory objectives by acting to enhance the level of services available to the public. We therefore find little need to tarry long on the argument of the local broadcasters that the statute immunizes them from DBS competition. Because DBS has the potential to yield broadcast services that significantly further the public interest, a finding of the Commission not truly disputed by any of the parties, the Commission acted well within its powers in approving the non-localized broadcasting characteristic of DBS. II. Applicability to DBS of Broadcast Restrictions The most innovative of the steps taken by the FCC with respect to DBS was the Commission’s decision, in the service of a “flexible regulatory approach” designed to stimulate DBS technology, not to apply to DBS the major regulatory restrictions traditionally imposed on broadcasters. Central to this approach was the Commission’s refusal to extend the broadcast restrictions of Title III of the Communications Act of 1934, as amended, to all DBS systems. These statutory restrictions imposed upon broadcasters are among the most important elements of the compromise underlying passage of the 1927 Radio Act, the model for the Communications Act of 1934. As the Supreme Court has noted, when Congress decided that government regulation of the airways was needed to bring order to the chaotic and burgeoning broadcast industry, the crucial question was how to balance public and private control. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103-14, 93 S.Ct. 2080, 2086-92, 36 L.Ed.2d 772 (1973). Some congressmen argued that broadcasters should be treated as public utilities and thus have the obligation to act as common carriers by accepting all applicants for service on a nondiscriminatory basis. Such a pervasive access right was ultimately rejected, however, in favor of a more narrowly tailored approach in which broadcasters were required to fulfill certain well-defined public obligations. The essence of this compromise was the view that broadcasting should remain under private control in general but that certain uses of the airways, particularly political ones, were too central to democratic values to be left to the whim of the private broadcaster. Accordingly, the Radio Act imposed a specific set of restraints upon broadcasters that common carriers do not face and then, to cement the compromise, explicitly provided that a broadcaster should not be regulated as a common carrier. 47 U.S.C. § 153(h). Among the statutory restraints that broadcasters currently face are section 312(a)(7), which requires that qualified candidates for federal office be provided reasonable access to broadcast facilities, and section 315, which provides that, if one political candidate is allowed to use a station, other qualified candidates must be given an equal opportunity to respond. Because DBS is likely to be a particularly attractive medium at least for presidential candidates, the question of how these broadcast restraints apply to DBS is of great moment. The DBS Order established the following classificatory scheme for purposes of applying the Act’s broadcasting rules. Those DBS applicants which propose to provide service (whether in the form of free or pay-TV) direct to homes and to “retain[] control over the content of the transmissions” will be treated as broadcasters. A DBS satellite owner can choose instead to operate as a common carrier, in which case satellite transmission services would have to be offered indiscriminately to the public pursuant to tariff under the provisions of Title II of the Act; a satellite owner who chooses the common carrier option will not be treated as a broadcaster. Also not treated as a broadcaster under the DBS Order are those who lease satellite space from a DBS common carrier and who use the leased channels to distribute programming via satellite to individual homes. These lessees, who neither own nor operate a DBS satellite, are referred to as “customer-programmers” of DBS common carriers, and it is they who control the content of the programming transmitted by a DBS common carrier. The FCC offered three rationales for the exemption of customer-programmers from Title III. First, at the time the Communications Act was passed, Congress, according to the FCC, envisioned a system that clearly distinguished broadcasters from common carriers; the possibility that a “broadcaster” might hook into a common carrier to allow the former to extend the range of its voiee was simply not considered. Because Congress did not expressly consider what type of regulation would be appropriate for a system in which an entity that wished to send signals using facilities and frequencies licensed to a common carrier would provide service directly to the public, the FCC concluded that the Communications Act did not require one who leased satellite space from a common carrier to be licensed and regulated as a broadcaster. Second, imposition on a common carrier's programmer-customers of the limited access requirements now imposed on broadcasters was said to be duplicative of the more pervasive access obligations already imposed on the carrier itself. Third, in its regulations of the common carrier Multipoint Distribution Service (MDS), the technical details of which are discussed below, the Commission similarly had not required a carrier’s programmer-customers, many of whom provide subscription programming services to individual residences, to be licensed or regulated as broadcasters, see Multipoint Distribution Service, 45 F.C.C.2d 616, 618-19 (1974). On the basis of these rationales, the Commission decided that it was free to determine where the public interest lay with regard to the regulatory regime imposed on DBS, and to conclude that “a flexible regulatory approach,” in which customer-programmers would be unregulated for the present, would provide the Commission with experimental information that would better inform its eventual public interest judgments. We recognize the Commission’s authority to approve services on an experimental basis in an effort to gather important market data to be used in the completion of a regulatory framework. See, e.g., Network Project v. FCC, 511 F.2d 786 (D.C.Cir.1975). Moreover, as other parts of this opinion will confirm, that discretion is particularly capacious when the Commission is dealing with new technologies unforseen at the time the Communications Act was passed. But that discretion is not boundless: the Commission has no authority to experiment with its statutory obligations. We conclude that the Commission has engaged in precisely such forbidden statutory experimentation in exempting from Title III the customer-programmers of DBS common carriers. We reach this conclusion by beginning not, as the Commission did, with the question whether Congress contemplated DBS in 1934, but rather with the language of the statute itself — the proper starting point for both agencies and courts as they struggle to sort out the complex and often elusive responsibilities that Congress has delegated to them. See International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 99 S.Ct. 790, 795, 58 L.Ed.2d 808 (1979). Section 3(o) of the Communications Act defines “broadcasting” as “the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.” 47 U.S.C. § 153(o). We have previously held that the test for whether a particular activity constitutes broadcasting is whether there is “an intent for public distribution” and whether the programming is “of interest to the general ... audience.” Functional Music, Inc. v. FCC, 274 F.2d 543, 548 (D.C. Cir.1958), cert. denied, 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 60 (1959). Remarkably, the Commission did not even attempt to reconcile its approach with the statutory language or with our interpretation of that language in Functional Music. Nor do we believe the Commission could have done so successfully. When DBS systems transmit signals directly to homes with the intent that those signals be received by the public, such transmissions rather clearly fit the definition of broadcasting; radio communications are being disseminated with the intent that they be received by the public. That remains true even if a common carrier satellite leases its channels to a customer-programmer who does not own any transmission facilities; in such an arrangement, someone — either the lessee or the satellite owner — is broadcasting. Despite the argument of some intervenors and the suggestion of the government in the companion case of United States Satellite Broadcasting Co. v. FCC, 740 F.2d 1177 (D.C.Cir.1984), it also remains true regardless of whether a DBS system is advertiser or subscriber funded. The FCC at the time of the DBS decision was bound not to depart without reasoned explanation, 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. 2229, 29 L.Ed.2d 701 (1971), from its conclusion in the subscription television proceedings several years ago that [T]he primary touchstone of a broadcast service is the intent of the broadcaster to provide radio or television program service without discrimination to as many members of the general public as can be interested in the particular program as distinguished from a point-to-point message service to specified individuals____ broadcasting remains broadcasting even though a segment of the public is unable to view programs without special equipment ____ Further Notice in the Matter of Subscription Television Service, 3 F.C.C.2d 1, 9-10 (1966); see also Subscription Television Service Fourth Report and Order, 10 Rad. Reg. 2d (P & F) 1625, 1628, 1716-18 (1967); see generally National Association of Theatre Owners v. FCC, 420 F.2d 194 (D.C.Cir.1969) (affirming FCC’s authority to approve subscription television service). While the FCC may be coming increasingly to the view that subscription services are not “broadcasting” see Satelitte Broadcasting Systems, FCC No. 83-403, released Nov. 3, 1983, a view not yet passed upon by the courts, the DBS Order must rise or fall upon the FCC’s articulated policies at the time of the order. And as the Order itself recognizes, those policies did not distinguish free-TV from pay-TV for purposes of defining “broadcasting.” 90 F.C.C.2d at 710. The FCC therefore cannot justify its exemption of some DBS systems from broadcast restrictions by pointing to the fact that those systems are subscriber rather than advertiser funded. See generally Committee for Community Access v. FCC, 737 F.2d 74 at 77 (D.C.Cir.1984) ([“T]he agency cannot silently depart from previous policies or ignore precedent.”). The irrationality of the Commission’s view of the statute, which makes ownership the touchstone of broadcasting, is illustrated by the following example. If a DBS owner broadcasts programming directly to homes, it is subject to regulation as a broadcaster; if that owner sends its programs via leased channels on another satellite, the very same programming will be immune from broadcast regulation. Through a general system of cross-leasing, all DBS systems could therefore escape Title III. Nothing in the statutory definition allows the Commission to elevate form over function in this way nor suggests that the definition of broadcasting turns on whether the provider of the service leases satellite facilities from a common carrier or owns the satellite outright. When confronted with a problem unforseeable by the enacting Congress, it becomes especially important for agencies to bear in mind the admonition that, “[wjhere the language of an enactment is clear and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322 (1929). Here it is the Commission’s strained statutory construction that produces “absurd or impracticable” consequences; fidelity to the statutory terms themselves instead produces a coherent pattern of regulation. Fidelity to the statute’s plain language also best comports with the legislative history of the Communications Act. A central fear animating passage of the Radio Act of 1927, Pub.L. No. 69-632, 44 Stat. 1162, the predecessor of the Communications Act, was that one voice not dominate broadcast stations: There is no agency so fraught with possibilities for service of good or evil to the American people as the radio ... it has limitless possibilities. • The Power of the press will not be comparable to that of broadcasting stations when the industry is fully developed ... it will only be a few years before these broadcasting stations, if operated by chain stations, will simultaneously reach an audience of over half of our entire citizenship, and bring messages to the fireside of nearly every home in America. They can mold and crystallize sentiment as no agency in the past has been able to do. If the strong arm of the law does not prevent monopoly ownership and make discrimination by such stations illegal, American thought and American politics will be largely at the mercy of those who operate these stations. 67 Cong.Rec. 5557, 5558 (1926) (statement of Rep. Johnson) (emphasis added). How much more palpable these fears would have been had DBS existed in 1926 we can only speculate, but surely those fears would have been profound: DBS, with its power to reach into every home in the United States, has a potential impact on Americans far in excess of the limited radio services that prompted passage of the Radio and Communications Acts. This impact is only heightened by the Commission’s interim decision to allow a DBS owner to retain control over the programming on several channels, an aspect of the DBS Order we discuss in the next section; STC, for example, will have control over three channels that will be beamed across the Eastern Seaboard and, eventually, the entire United States. In rural areas, the number of DBS channels may dwarf the number of terrestrial stations. And if a consumer chooses to buy reception equipment for only one DBS system, in rural areas that system may be virtually the only voice heard. Very real practical consequences could therefore follow from the FCC’s exemption of common carrier DBS lessees from broadcast restrictions — consequences at odds with the basic objectives of the Communications Act. Under the DBS Order, a federal candidate who wanted access to a DBS system that was operated as a common carrier could not force either the satellite owner or its channel lessees to provide that access, for both would be immune from the Act’s broadcast restraints; the candidate would instead have to rely on his or her purchasing power, as well as on the whim of the channel programmer, to receive access and an opportunity to respond to opponents. It was to avoid this very result, in which a speaker “who could afford the cost” could purchase enough time on a broadcast station operated as a common carrier to dominate American thought and American politics without any regulatory restraints, that Congress imposed restraints such as the equal opportunity rule upon broadcasters. See Columbia Broadcasting System, Inc., v. Democratic National Committee, 412 U.S. 94, 130, 93 S.Ct. 2080, 2100, 36 L.Ed.2d 772 (1973). We therefore reject the central rationale upon which the Commission relied to exempt customer-programmers of DBS common carriers from the statutory constraints under which broadcasters must operate: the fact that Congress did not in 1934 contemplate DBS does not give the Commission a blank check to regulate DBS in any way it deems fit. We have recognized previously that “[t]he limitations on Congress’ ability to foresee or consider particular problems that may in the future arise under a statutory scheme often require that legislation be drafted by reference to general categories rather than to specific classes of activities within those categories.” Natural Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 770 (D.C.Cir.1984). As we said in that case, under such circumstances courts and agencies must “seek out the broader purposes — the overriding statutory goals — constitutive of the general categorical term in which Congress has embodied its will. Only by engaging in such purposive interpretation can we accord fidelity to Congress’ objectives.” Id. at 770. In this case, the plain meaning of the general categorical term “broadcasting” as well as the congressional goals that help give content to that term offer sufficient guidance of the way in which Congress would have wanted DBS to be regulated that the Commission was not free to chart its own independent course. The Commission’s other rationales for its treatment of customer-programmers provide even less persuasive reasons for the Commission’s departure from the statute’s plain language. The claim that imposition of Title III obligations on channel lessees “merely would serve to duplicate the more pervasive” common carrier obligations of Title II, 90 F.C.C.2d at 710, is clearly wrong, as Title II merely requires a carrier to accept all applicants for service on a non-discriminatory basis and thus offers no surrogate for Title III requirements such as reasonable access or equal opportunity. A common carrier cannot guarantee political candidates reasonable access to airtime or an equal opportunity to respond to opponents, for the sine qua non of a common carrier is the obligation to accept applicants on a non-content oriented basis. Nor does the Commission’s Multipoint Distribution Service Decision, supra, convincingly support the treatment of DBS customer-programmers. An MDS system consists of a fixed station that transmits via microwaves various subscriber-supplied information to numerous fixed receivers, usually within a 25 mile range, equipped with directive antennas; generally, MDS is a one-way “private” television service that provides commercial and instutional subscribers with specialized communications in accordance with their specific transmission, reception, and programming requirements. 45 F.C.C.2d at 616; see also Midwest Corp., 53 F.C.C.2d 294 (1975). The Commission in its DBS Order apparently relied on the fact that MDS subscribers will not be treated as broadcasters. This reliance could be rejected merely by noting that the referenced MDS decision contains no discussion, let alone a reasoned one, of whether Title III applies to either the sender of the information or the transmitter of it; the Decision simply assumes that the transmitter will be treated as a common carrier and that the sender will be unregulated. But there are other reasons as well that the MDS analogy fails. First, at the time of the DBS Order, the information that MDS would transmit was thought to be subscriber supplied; the FCC did not contemplate that MDS would be used to offer subscription television for reception by the general public. See Multipoint Distribution Service, 34 F.C.C.2d 719 (1972) (The service was intended “to provide for relay of instructional and training television to schools, industry, municipal government, and for other miscellaneous uses such as the coverage of business, industry, or medical conventions.”). Second, the Commission itself has concluded that MDS transmissions, which are received at specific locations and by directed antennas, are not “intended to be received by the general public,” Midwest Corp., supra, 53 F.C.C.2d at 300; the Midwest Corp. decision thus views MDS, at least as it was conceived at the time of the MDS Decision, as more like the private radio service discussed in Functional Music, supra, 274 F.2d at 544, than like DBS. We hold that DBS, at least when directed at individual homes, is radio-communication intended to be received by the general public — despite the fact that it can be received by only those with appropriate reception equipment. Moreover, while the FCC more recently has come to allow MDS to be used for subscription television, see 47 C.F.R. § 21.903(b) (1982); Instructional Television Fixed Service, 54 Rad.Reg. 2d (P & F) 107 (1983), no court has yet passed on the validity of the Commission’s exemption of MDS programmer-customers from broadcast regulation. The Commission’s other articulated rationales for its treatment of DBS programmer-customers are thus as unconvincing as the Commission’s attempt to create a gap in a statutory scheme in which the statutory language is plain. A possible fourth rationale for the Commission’s decision, one not articulated by the Commission itself, was supplied by the FCC’s counsel in a post-argument letter to this court. Apparently relying on Section 301 of the Act, which provides that “[n]o person shall use or operate any apparatus for the transmission of” any radio signal without FCC approval, that letter suggests that customer-programmers are exempt from the broadcast restrictions because they lease, rather than own, satellite channels. Neither that rationale nor Section 301 is explicitly mentioned anywhere in the Commission’s decision, and post-hoc rationalizations by counsel cannot fulfill the requirement for reasoned decisionmaking at the agency level. Burlington Truck Lines v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962). But even assuming the agency’s decision sufficiently suggests the rationale offered by counsel, we nonetheless reject this rationale: customer-programmers who lease or otherwise receive access to DBS satellite channels sufficiently “use” those channels as to fall within the FCC’s jurisdiction. A final reason for exempting DBS customer-programmers from broadcast regulation, a reason not directly invoked by the FCC but raised by intervenors in the companion case, 740 F.2d 1177 et al. in an effort to bolster the Commission’s DBS Order, must also be rejected. These intervenors argue that the Commission never regulates programmers but only station licensees; examples of non-regulated programmers are said to be television networks, which provide programming over the facilities of affiliated broadcast stations, subscription television programmers, who perform similar functions on stations of television licensees, and pay television programmers such as Home Box Office, whose services are carried via satellites to cable television systems. However, the Commission previously has applied broadcast restraints to programmers and has been upheld in doing so. Columbia Broadcasting System, Inc. v. FCC, 629 F.2d 1, 26 (D.C.Cir.1980) (affirming Commission’s authority to apply reasonable access requirements of Section 312(a)(7) to major broadcast networks). The reason the FCC does not ordinarily regulate programmers is a simple one: the Commission applies the statute directly to the entities responsible for program selection and transmission — the broadcast licensees. This approach is consistent with the Act’s philosophy, for where a programmer operates through a broadcast licensee who must comply with the statute’s broadcast restrictions, as is the case with STV programmers, the networks, and cable, the Act’s objectives are met. But when both the customer-programmer and the common carrier through which the former’s signals are carried are immunized from broadcast regulation, as they are in the DBS Order, the statutory scheme is completely negated. To avoid this result, we vacate that part of the DBS Order that exempts customer-programmers of DBS common carriers from the statutory requirements imposed on broadcasters. Although DBS presents the Commission with a novel problem in broadcast regulation, the Commission has available a variety of means for regulating DBS consistent with the statutory commands. For example, each satellite could be licensed on a common carrier basis and the lessee of each channel, even if the satellite owner, licensed as a broadcaster. See generally Comment, Direct Broadcast Satellites: Ownership and Access to the New Technology, 33 Fed.Comm.L.J. 245 (1981) (discussing possible approaches). Moreover, while we have several times referred to the failure of the FCC to regulate the customer-programmers of DBS common carriers, we do not suggest that it is upon such programmers that the broadcast restrictions must necessarily fall; if a DBS owner leases time slots on a single channel rather than the channel as a whole, it may make more sense to make the satellite owner responsible for compliance with a broadcaster’s statutory obligations. We of course intimate no view on the legal sufficiency of any particular approach or on the authority of the FCC to adopt any particular approach. Moreover, while the FCC cannot experiment with its statutory obligations, it has considerably more flexibility with those broadcast restrictions that are the product of Commission regulation rather than congressional command, see, e.g., 47 C.F.R. § 73.1920 (1983) (personal attack rule); if the FCC can offer persuasive reasons for exempting DBS broadcasters as opposed to other broadcasters from these agency-imposed restrictions, the restrictions need not mechanically be applied to DBS. We also do not suggest that all uses of DBS constitute broadcasting; activity that would provide non-general interest, point-to-point service, where the format is of interest to only a narrow class of subscribers and does not implicate the broadcasting objectives of the Act, need not be regulated as broadcasting. See Functional Music, supra (affirming non-broadcast treatment for transmission of background music to restaurants, stores, schools and comparable institutions); cf. Greater Washington Educational Telecommunications Association, Inc., 49 F.C.C.2d 948 (1974) (use of educational FM station’s sub-carrier for a specialized informational service for the blind). Although we vacate one portion of the DBS Order, the Commission’s error with respect to broadcasting is sufficiently minor in the context of the Order as a whole that the rest of the Order can stand. The DBS Order makes clear that a DBS applicant that proposes to produce direct-to-home service and to retain control over the content of the transmissions will be treated as a broadcaster. DBS Order, 90 F.C.C.2d at 709. With respect to such applicants, who comprise the great majority of DBS applicants, id. at 710 n. 82, the DBS Order is thus insulated from our criticism of the FCC’s failure to regulate customer-programmers. With respect to DBS applicants who propose to provide service on a common carrier basis — the set of applicants for whom our vacation of the DBS Order is relevant — we leave to the Commission the decision whether a generic rulemaking is required to determine how to apply broadcast restrictions to such DBS systems or whether individual application proceedings can best deal with this question. That we are compelled to vacate a portion of the Interim DBS rules as promulgated does not mean that the STC Decision is infected by a similar defect. On the contrary, STC applied to operate its DBS system as a broadcaster and has agreed to comply with all restrictions applicable to broadcasters. While some of the parties assert that it is unclear whether STC will comply with Title III on each of its three channels or only on its DBS system as a whole, we interpret STC’s post-argument letter to this court, dated April 4, 1984, as committing STC to comply with Title III on each channel. As a result, the Commission’s departure from its statutory obligations with respect to some DBS systems has no effect on the validity of STC’s construction grant; STC will operate as a broadcaster. The validity of the STC Decision is therefore not affected by our decision to vacate a portion of the DBS Order. III. The FCC’s Refusal to Apply its Ownership Restrictions to DBS In addition to refusing to impose statutory broadcast restrictions on customer-programmers of DBS common carrier, the FCC also declined to apply to DBS Commission regulations that seek to assure that control of the media is lodged in diverse hands. Traditionally, the FCC has considered diversification of media ownership to be an important objective of federal communications regulatory policy. Diversification is thought to serve the public interest in two ways: by promoting a multitude of program and service viewpoints, an aim embodied by the First Amendment, and by preventing undue concentration of economic power, a concern embraced by the antitrust laws. See FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 780, 98 S.Ct. 2096, 2104, 56 L.Ed.2d 697 (1978). To promote diversification, the Commission has long barred traditional terrestrial television licensees from owning an interest in two television stations that have common or overlapping service areas. 47 C.F.R. § 73.636(a)(1) (1983) (multiple-channel rules). Similarly, Commission rules prohibit any single entity from owning, inter alia, more .than a total of seven television stations. Id. at § 73.636(a)(2) (cross-ownership rules). The Interim DBS rules temporarily suspend for DBS both the multiple channel and the cross-ownership rules. The FCC’s decision not to apply these rules to DBS rested on two policy judgments: first, and most importantly, that imposition of the rules during the nascency of DBS would unduly hinder development of DBS systems; second, that the rules were also unnecessary because competitive economic forces had so transformed the general video market and were so powerful in the DBS field specifically that abandonment of the rules posed little danger to the values those rules served. The refusal to apply the cross-ownership rules to DBS is not at issue in this case. However, petitioner NAB argues that it was arbitrary and capricious for the FCC to relax temporarily the multiple-channel rule for DBS while leaving that same rule in place for terrestrial licensees. At least at this early stage in the development of DBS, we reject that argument: DBS and traditional television broadcasting are not sufficiently similar in their technology, marketability, capitalization requirements, or other relevant factors that identical regulatory treatment of the two is required. Unlike conventional television systems, DBS systems are extraordinarily capital intensive and have high fixed costs; one applicant estimated that preoperational and first year expenditures alone would be $600 million. STC Application, Volume 1, pp. 66-70 (JA 674). Weighing in against these costs are significant risks which the FCC has found to be associated with the new technology: (i) a lengthy delay (approaching five years) between issuance of a construction permit and initiation of service; (ii) reliance on unproven and developing technology; (iii) an uncertain and rapidly changing marketplace; (iv) operational and marketing problems associated with the provision of service and distribution of home receiving equipment over vast geographic areas. STC Decision, 91 F.C.C.2d at 986-87. These differences led several potential applicants to comment that no “responsible business organization” would enter the DBS field “without control over the programming of more than one channel.” See id. at 694; DBS Order, 90 F.C.C.2d at 713 n. 91. Such multiple-channel control allows counter programming, in which a satellite owner can offer movies on one channel, for example, sports on another, and cultural and children’s programs on the third— thereby potentially attracting substantially more viewers than would be possible were only a single channel available. Based on the comments of some applicants that the ability to counterprogram was necessary to justify investment in DBS, the FCC concluded that, at least for the time being, it was unwise to impose ownership restrictions comparable to those existing in other areas. However, the FCC expressly reserved the right to impose ownership restrictions if actual operational experience with DBS systems demonstrated the need for increased regulatory intervention. In other areas, the FCC has adopted a similar flexible approach toward new technology thought to be in the public interest. For example, in the early stages of the development of cable television, the FCC refused to restrict the number of channels of origination that a cable owner could operate; such restrictions were thought to constrain desirable experimentation within a new industry. CATV Report and Order, 36 F.C.C.2d 143, 197 (1972). Similarly, during the pioneering stages of FM and VHF broadcasting services, the Commission adopted a relaxed cross-ownership policy to foster their development. See Multiple Ownership Rules, 28 F.C.C.2d 663, 671 (1971) (FM); Multiple Ownership of Standard, FM & TV Broadcast Station, 22 F.C.C.2d 306, 319 (1970) (VHF). While these approaches were not judicially reviewed, they highlight the fact that the Commission previously has viewed stimulation of new technology as a sufficient reason for relaxing its ownership restrictions. In this case, we conclude that the Commission acted within its discretion in suspending the multiple-channel restrictions. As the Commission’s past practices suggest, the ownership restrictions are not a statutory requirement but rather a product of the Commission’s informed judgment as to what the public interest requires. Substantial evidence was offered to the Commission that DBS would not come to fruition without the incentive of multiple-channel control. The Commission plausibly predicted that DBS may result in new service of substantial benefit to the public and that competition from DBS will further diversity in the video market. We therefore accept the FCC’s judgment that suspension of the ownership restrictions will better promote diversity than the mechanical application of those restrictions to this new setting. In light of the significant differences between DBS and conventional television, it was neither arbitrary nor capricious for the Commission to refuse for the time being to apply traditional ownership restrictions to DBS. The Commission offered a second and alternative rationale for refusing to apply the multiple-channel and cross-ownership rules to DBS — that market forces in the burgeoning video industry would serve as adequate surrogates for direct regulation of media ownership. NAB is distressed by this rationale and argues that the same factors that make the video market safe for unconstrained DBS entry should also make that market safe for the repeal of the ownership restrictions on terrestrial broadcasters. NAB’s argument may be sound as a matter of policy, but as a matter of law it rings hollow. In classifying economic activity, agencies, while entitled to less deference than Congress, nonetheless need not deal in one fell swoop with the entire breadth of a novel development; instead, “reform may take place one step at a time, addressing itself to the phase of the problem which seems most acute to the [regulatory] mind.” Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). The communications field is in the midst of a profound revolution, in which DBS plays a central role; in deciding how to regulate previously non-existent technology, the Commission is empowered to take cognizance of the changes wrought by advancing technology. Computer and Communications Industry Association v. FCC, 693 F.2d 198, 212 (D.C.Cir.1982) (Computer II) (recognizing that “newly unleashed market forces” may constitute an appropriate regulatory tool), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313 (1983). But in regulating a new technology such as DBS in light of extant economic and technical forces, the Commission need not reopen at the same time all previous proceedings also arguably affected by those forces; the Commission is not constrained, as NAB would have it, to act in one transcendant blow, radically reshaping much of communications law, or not to act at all. There will be time enough in future proceedings for the Commission to consider whether repeal of existing rules, like the refusal to extend them which we approve today, is warranted in light of general technological and market change. See Multiple Ownership Rules, FCC No. 83-440, adopted Sept. 22, 1983 (proposing to modify substantially the multiple ownership rules as they apply to conventional broadcast stations). We therefore reject NAB’s challenge to the Commission’s market-competition rationale. That the multiple-channel rules were not repealed for terrestrial broadcasters does not per se invalidate a decision that precludes applicability of such rules to DBS. The fact that we reject NAB’s argument, however, does not mean that we endorse the Commission’s approach. Indeed, we are not convinced that the DBS Order provides an adequate empirical foundation for .the claim that market forces now render ownership restrictions unnecessary. We need not reach that issue today and express no opinion on it, however, for the first rationale offered by the Commission provides an independent and persuasive basis for sustaining the FCC’s decision to suspend, at least temporarily, ownership restrictions on DBS. In approving suspension of the ownership restrictions, we add a final caveat. Diversification of media viewpoints and control remains an important component to the FCC’s statutory mandate to regulate communications “in the public interest.” Neither our approval nor the FCC’s action intimates that diversification is no longer salient to the mission with which the Commission has been charged. In consequence, the decision not to apply ownership restrictions to DBS at this time is cabined by the predicates upon which the interim rules are based. Where those predicates do not exist, or when they cease to have vitality, the absence of traditional ownership restrictions on DBS will require close scrutiny from the Commission in the first instance and from the courts in the second. For example, the absence of ownership restrictions on DBS may be particularly worrisome in those remote areas that DBS opens up for television and in which DBS may therefore be the dominant voice. The FCC has indicated its intent to be alert to such possibilities, see, e.g., DBS Order, 90 F.C.C.2d at 713, and, as we previously have said, “this court has no basis for concluding that the Commission is not proceeding, or does not intend to proceed, in the manner” to which it has pledged itself. Wold Communications, supra, at 1476. Similarly, should experience prove that multichannel ownership and counter-programming are not necessary to provide an adequate return on DBS investments or to create an adequate incentive to construction, ownership restrictions may become warranted. Cf. Telocator Network of America v. FCC, 691 F.2d 525, 550 n. 191 (D.C.Cir.1982) (Commission has broad leeway to stimulate innovative technology but the price of that leeway is the “ongoing obligation to monitor its regulatory programs and make adjustments in light of actual experience.”). Such restrictions may take several forms: division between several entities of operational and programming authority, limiting the number of DBS channels on one satellite controlled by a single firm (which may lead to some form of comparative hearings for the remaining channels), limiting the total number of DBS channels controlled by a single firm, or prohibiting cross-ownership of DBS stations by those with substantial other media interests. See generally Note, Direct Broadcast Satellites: Ownership and Access to the New Technology, 33 Fed.Comm.L.J. 245, 305 (1981). We emphasize this point so that future DBS applicants, and indeed so that STC itself, whose multi-channel'system was approved as an experiment, are not left with the mistaken impression that they have given a permanent charter to several channels. Experimental regulation is limited by the duration of the experiment; multiple channel authority is a contingent right of which an applicant may be defeased should the FCC conclude that defeasance is in the public interest. Lastly, NAB argues that, even if the ownership restrictions can be relaxed as a general matter, the FCC’s specific decision in the STC Decision to grant three channels rather than two to STC is unsupported by the evidence. According to NAB, STC’s own studies indicated that STC could achieve sufficient economic returns with two channels; it is therefore alleged that the FCC arbitrarily abandoned its multiple-ownership policies when it awarded STC three channels. That argument is refuted by the fact that STC’s application at several points expressed the company’s judgment that three channels would be necessary to achieve economic viability. See, e.g., STC Application, supra, Volume I, at 66, 69. While it is true that little documentation was offered to allow the Commission intelligibly to choose between a two and a three channel grant, at this early stage in the development of DBS the Commission was entitled to defer to STC’s only thinly supported claim that three, rather than two, channels were necessary. The multiple-ownership debate focused primarily on whether more than single channel licensing ought to be permitted; the choice between granting STC two or three channels was much less ventilated and much less significant. Especially in light of the Commission’s express reservation of the right to impose multiple-channel restrictions once experience has been garnered with operational DBS systems, see DBS Order, 90 F.C.C.2d at 986, the Commission did not act arbitrarily in seeking to promote DBS by awarding STC, the first DBS applicant, three channels. We therefore approve the grant of three-channel authority to STC and uphold the Commission’s suspension for DBS of the multiple-channel rules. IV. The FCC’s Decision to Designate the 12 GHz Band Primarily for DBS The DBS Order grants DBS eventual priority in the 12.2-12.7 GHz band (the GHz band). Currently, a variety of terrestrial microwave operators use that band for point-to-point internal and external communications needs. These Fixed Service Users (FS Users) include local governments, banks, newspapers, railroads, utilities, and academic institutions; as of now there are roughly 1900 links licensed in the 12 GHz band. DBS Order, 90 F.C.C.2d at 699. Under the regime created by the DBS Order, these FS Users have a five-year transition period during which they can continue to operate without any need to avoid interference with DBS. After that period, DBS will have priority; to the extent DBS and FS use is then incompatible, FS Users will have to move to other bands. The Commission noted that this displacement deserved “serious attention” and pledged to minimize the relocation costs to FS Users. The Commission did not, however, formulate the complete details of relocation in the DBS proceedings but rather deferred those details to a separate and expedi