1. The statute that creates the Federal Communications Commission (FCC) includes the following provision:

The Federal Communications Commission may, after notice and an opportunity for a hearing as provided in this Act, issue, modify, suspend or deny television broadcast licenses.
 

2. The statute that creates the FCC was amended in 1990 to include the following provisions aimed at improving the quality of children's television:

Section 1 - Television broadcasters shall serve the educational and information needs of children through their overall programming in a manner defined by the Commission.
 

Section 2 - The Federal Communications Commission may modify, suspend or deny a television broadcast license if the applicant or licensee will not serve the educational and informational needs of children through the applicant or licensee's overall programming.
 

3. There is no other provision in the statute that grants the FCC any rulemaking authority.
 

1. The Federal Communications Commission believes that in order to "serve the educational and information needs of children" as required by the statute, a television broadcaster must broadcast at least three hours per week (between 7:00 A.M. and 10:00 P.M.) of television programs that further the intellectual, cognitive, social or emotional needs of children.
 

2. The FCC has not yet publicly stated this interpretation of the statute.
 

3. Murduck Communications applies for a television broadcast license and the FCC holds a hearing on the license application. Murduck Communications plans to broadcast one hour of programs that further the intellectual, cognitive, social or emotional needs of children per week. The FCC concludes the hearing and finds, as a matter of law that in order to "serve the educational and information needs of children" as required by the statute, a television broadcaster must broadcast at least three hours per week (between 7:00 A.M. and 10:00 P.M.) of television programs that further the intellectual, cognitive, social or emotional needs of children. Since Murduck only plans to broadcast one hour of such programming per week, the FCC denies the license application.
 

Question to think about: Did the FCC act within its authority under the law, or was it required to promulgate a regulation that defined what constitutes "serving the educational and information needs of children through overall programming" before it denied Murduck's license application?

Section 2 remains the same as in the previous hypothetical, but Section 1 is amended to read as follows:

Section 1 - Television broadcasters shall serve the educational and information needs of children through their overall programming in a manner defined by the Commission by regulation.

Question to think about: Under the statute as it now reads, could FCC hold a hearing, make the legal finding that it made in the hearing in the prior hypothetical and deny Murduck's license application because Murduck only plans to broadcast one hour of educational or informational programming, or must the FCC first promulgate a rule defining the phrase "serve the educational and informational needs of children ..." before it can deny Murduck's application on those grounds?

Section 2 remains the same as in the previous hypothetical, but Section 1 is amended to read as follows:

Section 1 - Television broadcasters shall serve the educational and information needs of children through their overall programming.

There is no other provision in the statute that gives the FCC rulemaking authority.

Question to think about: Could the FCC promulgate rules that define what constitutes "serving the educational and information needs of children through overall programming" and then rely on that rule to deny Murduck's license application because Murduck only plans to broadcast one hour of educational or informational programming?

Section 1 and 2 remain the same as in the previous hypothetical, and Section 3 is added, as follows:

Section 3 - The Commission may promulgate such rules as are necessary to carry out its responsibilities under the Act.

Question to think about: Could the FCC promulgate rules that define what constitutes "serving the educational and information needs of children through overall programming" and then rely on that rule to deny Murduck's license application because Murduck only plans to broadcast one hour of educational or informational programming?