The opinion
TAMM, Circuit Judge
(concurring):
The administrative process requires that government agencies and commissions issue reasons for their actions. Here the Commission has outdone itself by giving four reasons for its action— albeit different reasons at each step of the proceedings. In its initial order the Commission ruled that Columbia Broadcasting System was bound to grant time to the Republican National Committee because Chairman O’Brien referred only briefly to the war in his statement and because “The Loyal Opposition” was party-oriented rather than issue-oriented, thereby bringing this case within the Commission’s Zapple 1 ruling. C.B.S. and D.N.C. petitioned for a rehearing based upon their claim that the Commission had overlooked its own decision in Hays 2 In response, the Commission denied the petition for rehearing on a new ground — the failure of C.B.S. to specify which issues O’Brien could raise during the broadcast. The Commission, based on the theory that “ ‘electioneering’ is a continuing process” (A. 309), applied a “specific corollary” of the fairness doctrine known as the “political party” doctrine as contained in Zapple. (A. 308). The Commission stated, inter alia:
However well-intentioned CBS was, the result here was simply the “political party” situation which we described at the outset. It was “party-oriented” rather than “issue-oriented,” because of CBS’ abstention in this critical area of issues to be covered.
(A. 311, emphasis supplied, footnotes omitted.)
In its brief the Commission chose to change its position yet a third time. It claimed that special circumstances had rendered the general doctrine inadequate to assure reasonable opportunity for the public to receive conflicting views. These circumstances, viz., a speech by a candidate, political editorializing, or a speech by a candidate’s supporters, limit the broadcaster’s discretion. The FCC was not concerned with CBS’ overall fairness. It claimed that O’Brien’s presentation was not responsive and that CBS had failed to assure that it would be. Even though the FCC was cognizant that the President’s numerous speeches created an imbalance on the war issue requiring presentation of the other side of the coin, CBS’ fatal error, it said, was in granting time to D.N.C. for any purpose without supervision. Therefore, the only imbalance, the Commission contended, was one created by CBS in failing to give R.N.C. time to respond to D.N.C. Not satisfied with even this position as espoused in the briefs, the Commission made an eleventh-hour change in its game plan at oral argument. As Judge Wright points out, the Commission urged that we entirely disregard the responsiveness issue raised in the briefs and affirm the FCC on one ground and one ground only — failure of CBS to instruct D.N.C. on precisely which issues to raise during the broadcast.
I can neither accept nor sympathize with the manner in which the Commission has handled this litigation. They have created a debacle in seeking a sound basis for- their decision. They have been unable to bring the ease at bar within Zapple and have been similarly unable to distinguish it from Hays. Their opinions at the hearing level as well as the position urged in the briefs and at oral argument show a capricious, arbir trary and inconsistent approach to this case. The Commission cannot constantly change its position quo'cumque modo velit. I feel constrained to sound a trumpet in warning against such attempts by administrative agencies to play *1036 fast and loose with their opponents and the court. This court will not be made a party to the type of sham proceeding the FCC has attempted to create by its inconsistent changes in position. Once the FCC enunciated its position on the issue of R.N.C.’s right to reply it should have possessed the courage of its convictions to uphold that position and the reasons tendered therefor, or if convinced of its error, reversed its position rather than attempting to obfuscate both the issues and the Commission’s reasoning. This failure to reach any coherent approach and the constant shifting of stance by the Commission leads me, although hesitantly, to conclude that by giving one political party two bites of the proverbial apple for every one granted to the opposing political party the Commission has taken a political role of interference contrary to all of the teachings of administrative decision-making. 3
. Letter to Nicholas Zapple, 23 F.C.C.2d 707 (1970).
. See generally 1 K. Davis, Administrative Law Treatise, § 1.03 (1958).
. Letter v jErom Chairman Rosel H. Hyde to Hon) Wayne Hays, Commission Ref. No. 8330-S; 02-105 (1968).