United Church of Christ V. Fcc: Private Attorneys General and the Rule of Law

Abstract

The D.C. Circuit in 1966 and 1969 issued two opinions in United Church of Christ v. FCC case that addressed the failure of the Federal Communications Commission (FCC) to police the racist behavior of a Jackson, Mississippi television station, WLBT. Both opinions were at the forefront of the "reformation" of administrative law that was occurring at the time. They were also important in the civil rights struggle in the South. The first impact is now only dimly appreciated, and the second is almost entirely overlooked.

This essay argues we should regard United Church of Christ as a significant and still important case in administrative law. The decisions were the beginning of the end for the unfair and biased treatment of racial issues by southern television stations. The history of the case therefore demonstrates the important role that private attorneys general can play in prompting the public interest and the rule of law. Moreover, the decisions paved the way for two important doctrinal developments which followed the case. First, they were in the vanguard of the judicial movement in the 1960's and 1970's to give standing to regulatory beneficiaries to sue agencies for illegally failing to protect consumers, workers, and the environment. The Supreme Court, however, has ignored this important value in recent decisions which have restricted standing, despite the fact that agencies are still liable to be captured by the industry groups that they are suppose to regulate. Second, the case was also foundational for the development of the "hard look" doctrine, which is linked to standing for private attorneys general such as the Office of Church of Christ. Nevertheless, the "hard look" doctrine has turned out to be a mixed blessing for public interest and environmental advocates since it is readily subject to misuse. Its importance to private attorneys general litigation, however, counsels against scrapping the concept.

Keywords: Administrative Law, Judicial Review

JEL Classification: I18, K23