National Broadcasting Company, Inc. v. Federal Communications Commission and the United States of America, Accuracy in Media, Inc., Intervenor

LEVENTHAL, Circuit Judge

(concurring in part and dissenting in part):

I.

This has been a Big Case with issues large in law and judicial approach. This is the way it ends: All the judges on the panel that drew this case agree on the dissolution of the order of the Federal Communications Commission that the National Broadcasting Company’s Pensions telecast violated the Fairness Doctrine. But the reason for the result differs from judge' to judge.

The panel has for consideration, following the withdrawal of the court en banc, a suggestion of mootness filed by the FCC. Judge Fahy declines to accept that suggestion of mootness, which would, if entertained, have meant that the FCC was required to dismiss the proceeding, as a matter of jurisdiction, and without regard to its own discretion. I agree with Judge Fahy as to this ruling, for reasons set forth in part III of this opinion responding to Judge Tamm’s view that the mootness doctrine is applicable.

II.

Judge Fahy has written an opinion which remands the proceeding, to permit the FCC to vacate its order in the exercise of its discretion, on an equitable doctrine rooted in considerations of administrative and judicial discretion. While I disagree as to this course, I do not undertake to enlarge on my reasons, for this disposition ordered by Judge Fahy is not as objectionable as a dismissal for *1202 mootness. Indeed I would be ready to join affirmatively in the order implementing Judge Fahy’s opinion if necessary to break an impasse. 1

III. MOOTNESS

1. The Commission’s suggestion of mootness contends that “the case has become moot as a result of the enactment of legislation dealing with pension reform, leaving NBC no longer under a duty to comply with the Commission’s order.” 2 It says that “[n]either of the original adversaries in this dispute (NBC and AIM) nor the Commission stands to gain or lose by this Court’s resolution of the case.” Id. at 5. However the Commission takes , care to emphasize that it continues to adhere to its determination that NBC violated the fairness doctrine. 3 And both NBC and AIM contend that the case has not become moot.

2. The FCC’s claim of mootness presents the same issue that this court considered sua sponte-^-as it was bound to do, on a matter of jurisdiction — in our opinion of September 27, 1974. In holding that our jurisdiction 170 U.S.App.D.C. at-, 516 F.2d at 1133-1134 n.88) had not been undermined by mootness we said:

We conclude our opinion on the merits with a brief comment explaining that it has not been mooted by the passage of the Employment Retirement Income Security Act. of 1974 ( Public Law 93-406 ) signed by the President on Labor Day, September, 2, 1974, while this opinion was being distributed to our colleagues for information, and readied for publication. First, the passage of the act does not technically moot any aspect of this case because legislation is always subject to reconsideration and modification. Second, we think the principle of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515-16 [ 31 S.Ct. 279 , 55 L.Ed. 310 ] (1911) on recurring controversies is properly invoked.

Third, this opinion sets forth the reasons for maintenance of the stay pending appeal (see note 18 and text thereto). The case was expedited because the pensions bill was on a current legislative time table. Following oral argument on the merits the panel voted, with one dissent, that it would vacate the Commission’s order, and continue the stay pending preparation of the opinion. All votes are subject to reconsideration, and if in the course of preparation of the opinion it had become evident that an opinion for reversal “would not write,” the court would have reversed course. But the court continued to adhere to its vote, and this opinion on the merits is also, therefore, an opinion explaining why the court continued its stay in effect. On this issue, there was no dissent.

Judge Tamm did not contend that the case should be dismissed, but that the FCC’s order should be affirmed.

3. The FCC takes note that NBC, when it sought and obtained a stay from the Commission and this court, voiced the concern that if it complied with the FCC’s order it might be confronted with the claim that the appeal was rendered moot. The FCC continues: “Ironically DeFunis subsequently established that issuance of a stay would also moot the case.” 4 And the FCC explains 5 that DeFunis v. Odegaard, 416 U.S. 312 , 94 S.Ct. 1704 , 40 L.Ed.2d 164 (1974), issued after it filed in this court its opposition to NBC’s motion for stay, wherein it stated that “this Court has full discretion to consider questions of continuing importance to the public interest even though the immediate controversy which gave *1203 rise to the case may have been resolved.” 6

DeFunis , however, was a case where the plaintiff-petitioner was scheduled, by the mere passage of time, to lose all pertinent contact with the governmental authority whose practice was being challenged. The significance of the loss of contact is sharpened by the Court’s virtually simultaneous decision in Super Tire Engineering to be discussed presently, and with its rulings in class action cases. The Court noted that DeFunis had not brought his case as a class action. There are several class action cases where the Court exercises jurisdiction because the class may continue to have contact with the governmental entity although the original litigating member of the class loses such contact. 7

In striking contrast with DeFunis is the case of NBC, which remains subject to FCC’s monitoring and doctrines. NBC’s continuing contacts with FCC present the reasons for review that arise for orders evading review and orders with collateral consequences. As Judge Tamm has recently pointed out, the former doctrine has application when officials maintain in effect the program under challenge, even though any future violations will not present “identical circumstances.” Carlson v. Schlesinger, 167 U.S.App.D.C. 325 , 511 F.2d 1327, 1338 (D.C.Cir., 1975). Here, the FCC has not recanted, or disavowed as rooted in error its specific ruling that NBC has violated the fairness doctrine, or its general approach to application of the fairness doctrine.

Fairness rulings raise the problem of a chilling effect on broadcast journalism. And specifically NBC, with its owned and operated stations, faces the possibility that the Pensions broadcast will haunt their renewal applications. 8 AIM, or members of the public of the same view, may oppose renewal on the ground of past non-compliance with licensee obligations. Indeed, AIM had notified each station carrying the “Pensions” program, that it intended to enter notice of the fairness doctrine violation in the station’s file and warned that the licensee “may have this used against him in any challenge to a license renewal.”

In sum, this case is governed not by DeFunis but by the decision rendered by the Supreme Court one week earlier in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 , 94 S.Ct. 1694 , 40 L.Ed.2d 1 (1974). There the Court found that an *1204 employer’s challenge to state grants of public assistance to striking workers was not mooted by the resolution of the strike prior to decision in the district court. The Court ruled that the controversy persisted because “the challenged governmental activity in the present case is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” Id. at 122 , 94 S.Ct. at 1698.

4. I have referred to the “collateral consequences” doctrine as part of the total picture of the case. While this doctrine has usually been employed in criminal cases, it applies with equal force to civil actions. 9 In accordance with this rule, Judge Tamm observed in In re Ballay, that the existence of collateral consequences provides “yet another independent reason why the present appeal is not moot.” 157 U.S.App.D.C. 59, 62 , 482 F.2d 648, 651 (1973).

5. This complex of factors produces an ongoing resonance in fairness doctrine rulings, especially when no definite life span has initially been set for the ruling. Thus it was that the Supreme Court proceeded to the merits in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969), although the personal attack, that was held to trigger the “right of reply” aspect of fairness, had been broadcast as long as five years prior to the Supreme Court decision.

The Commission did not limit its 1973 order to NBC in the fashion its counsel now say was what it “contemplated,” that NBC’s fairness broadcast be made prior to the legislative battle. If anything, a personal attack is more likely to recede in mists of time than presentation on a public issue. Pensions, and what to do about them, are matters of continuing concern. 10

6. Finally, any diminution in practical consequence of the FCC order does not establish mootness for lack of adversary posture. Even if the FCC had wholly lost interest in the cause, complainant AIM — which triggered the FCC proceeding and consideration — has a continuing interest. Such a complainant must be given status, at the appellate level, of an intervenor in support of the government position, who may appeal even when the government agency wants submission to the court. United Automobile, Aerospace and Agricultural Implement Workers v. Scofield, 382 U.S. 205 , 86 S.Ct. 373 , 15 L.Ed.2d 272 (1965). More important, the very premise of Southern Pacific jurisprudence is that adversariness may *1205 flow not from the particular order but from the underlying principle at stake. While a “common law mootness” falling short of “constitutional mootness” may lead a court to exercise discretion to abstain from considering a case, in the allocation of limited time and energy, 11 here we have already had full and deliberate reflection and preparation and publications of opinions, and considerations of judicial administration run against obliteration of what has been done. 12 We do net rescind an opinion even where the factual record underlying the opinion has been established on remand to require correction. Allen v. United States, 131 U.S.App.D.C. 358 , 404 F.2d 1335 (1968).

IV. THE MERITS

Curiously, Judge Tamm, while professing to say that the case is now moot, which would mean lack of jurisdiction, seizes the occasion to enlarge on his views of the merits, and to unwind an extended critique of the opinion on the merits of a majority of the panel. Without engaging in a point by point rejoinder, which might prompt the kind of surrebuttal that flourished in the days of common law pleading, it may be useful to identify the salient premises of the court’s opinion.

1. The court’s opinion rejects the premise — however permissible logically, or sound psychologically — that an effective depiction of abuses in an institution is pro tanto an attack on the institution, which calls for a full perspective in order to comply with the fairness doctrine. That doctrine calls for more than strict logic or balance. It calls for respecting the public’s right to know but without stifling investigatory journalism.

2. The vice in the Commission’s opinion was that in deciding that NBC had presented only one viewpoint on a “controversial issue of public importance” it used the approach of ascertaining what issue or issues had been presented in fact, instead of approaching the case from the viewpoint of whether NBC had been reasonable in its view of the issue or issues being presented. The court’s ruling is not based solely on the telltale formulation in paragraph 17 of the Commission’s opinion of the “specific question properly before us,” but on the approach underlying and pervading its opinion.

3. It is said that the court’s function is to sustain an administrative agency if its determination is supported by substantial evidence. That rule is subject to a special gloss when the primary responsibility is not in the agency, as is normally the case, but in a private licensee with public aspects, who has a discretion suffused with First Amendment values. In such a case when there is substantial evidence for both results it is the licensee who prevails — under an exception to the normal rule that when there is substantial evidence both ways the agency must prevail. While the court’s opinion was not couched in these precise terms, it rests on the predicate that there is substantial evidence to support the licensee’s determination as reasonable, and consequently the FCC’s determination rejecting the licensee’s determination cannot be valid in law.

To avoid any possible misunderstanding, I wish to emphasize that the court’s decision did not rest on the majority’s own analysis of the issue presented in the broadcast — on our own, we might very well have expressed a view closer to that of the FCC — but on our conclusion that there was plainly substantial evidence to support the licensee’s approach as reasonable.

To say that the FCC must be affirmed so long as there is substantial evidence to support its judgment that the licensee was unreasonable, in its characterization of the issue presented by a program or its evaluation of the eontroversiality of an issue, would require affirmance even if the licensee’s characterization was not *1206 only reasonable but more reasonable than that of the Commission. This application of the conventional standard of review would subject the licensee to intolerable second-guessing by the FCC, and undermine the carefully balanced scheme adopted by Congress to protect licensees from undue governmental interference. Instead of looking to see whether the Commission’s conclusion is supported by substantial evidence, the court must ask whether the licensee’s judgments are based on “such relevant evidence as a reasonable mind might accept as adequate.”

It bears reiteration, for emphasis, that “a court is properly exercising the high judicial function of assuring that agencies respect legislative mandates when it studies the record to make certain that the Commission has not interpolated its own judgment and wrested the primary discretion Congress placed in the licensee, without making the requisite showing of abuse of the licensee’s journalistic discretion.” 170 U.S.App.D.C. at -, 516 F.2d at 1123.

. See Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29 , 420 F.2d 597 (1969).

. FCC’s Suggestion of Mootness at 1.

. As it states, “[o]ur [en banc] brief addresses the merits in this case and we need not retreat from the positions stated in it to raise what we consider a sound procedural question.” FCC’s Reply to Responses in Opposition to Suggestion of Mootness at 4.

. Suggestion of Mootness at 8.

. FCC’s Reply to Responses in Opposition to Suggestion of Mootness at 2, n. 1.-

. Opposition to Motion for Stay at 17.

. See Sosna v. Iowa, 419 U.S. 393 , 95 S.Ct. 553 , 42 L.Ed.2d 532 (1975); Richardson v. Ramirez, 418 U.S. 24 , 94 S.Ct. 2655 , 41 L.Ed.2d 551 (1974); Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 386-95 (1974).

. The FCC’s opinion and order addressed this matter, noting that although the licensees “may initially look to network action for compliance,” they “remain ultimately responsible for the programming which they carry.” 44 FCC 2d at 1044. The Commission has emphasized that the fairness doctrine applies primarily to individual licensees rather than to networks. It has refused to apply the doctrine to ad hoc networks and applies it to the three commercial networks in part because they each own and operate five major market stations. See Phillip H. Schott, 29 FCC 2d 35 , 36 (1971). The Commission’s opinion denying renewal of WXUR’s license rested primarily on the station’s fairness doctrine violations and stated that fairness violations alone would be sufficient to deny license renewal. On appeal the FCC’s fairness ruling was upheld by Judge Tamm. It was not passed upon by. Judge Wright, who upheld the FCC on the ground of licensee’s misrepresentation, a ground also approved by Judge Tamm. See Brandywine-Main Line Radio, Inc., 27 FCC 2d 565 , 577 (1971), aff’d on other grounds, 153 U.S.App.D.C. 305 , 473 F.2d 16 , cert. denied, 412 U.S. 992 , 93 S.Ct. 2731 , 37 L.Ed.2d 149 (1973).

The Supreme Court’s observation in its CBS opinion clearly indicates that the challenged FCC ruling may have “a substantial adverse effect” on NBC. The Court noted that “[fjailure [to comply with the fairness doctrine] puts continuation of the license at risk — a sanction of tremendous potency, and one which the Commission is under increasing pressure to employ.” Columbia Broadcasting System, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 100 , 93 S.Ct. 2080, 2085 , 36 L.Ed.2d 772 (1973), quoting Business Executives’ Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181 , 205, 450 F.2d 642 , 666 (1971) (McGowan, J., dissenting).

. For decisions that criminal cases remain alive after the sentence in question has been served because of the debilitating collateral effects of a criminal conviction, see, e. g., Sibron v. New York, 392 U.S. 40, 55-58 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 237 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968); Ginsberg v. New York, 390 U.S. 629 , 633 n. 2, 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968). The doctrine has been extended to include challenges to arrests which do not lead to prosecutions in view of the potential consequences of an arrest record. See, e. g., Carlson v. Schlesinger, 168 U.S.App.D.C. -, 511 F.2d 1327, 1338 (D.C.Cir., 1975); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 52 , 478 F.2d 938, 962 , cert. denied, 414 U.S. 880 , 94 S.Ct 162 , 38 L.Ed.2d 125 (1973).

This court has adopted the same test of mootness in civil litigation, in cases dealing with the collateral consequences of a prison disciplinary action, Hudson v. Hardy, 137 U.S.App.D.C. 366 , 424 F.2d 854 (1970), a commitment under the Sexual Psychopath Act, Justin v. Jacobs, 145 U.S.App.D.C. 355 , 449 F.2d 1017 (1971), and a commitment for mental illness, In re Ballay, 157 U.S.App.D.C. 59 , 482 F.2d 648 (1973). The Ninth Circuit has recently found that the collateral consequences of a denial of tax exempt status prevented a mootness ruling. See Church of Scientology v. United States, 485 F.2d 313, 317-18 (9th Cir. 1973) (finding “no distinction" between a civil and a criminal case for purposes of the collateral consequences doctrine). See also Kates & Barker, Mootness in Judicial Proceedings: Toward a Coherent Theory, 62 Calif.L.Rev. 1385, 1391-94 (1974).

. As of this writing, most regulations to implement the Act have not been issued; some regulations have been noticed for comment; some regulations have been re-noticed, with amendment following a first round of comment. And the Act itself provides for a study of the portability problem, which is apparently still “up for grabs.”

. See Alton & S. Ry. v. International Ass’n of Machinists and Aerospace Workers, 150 U.S.App.D.C. 36 , 463 F.2d 872 (1972).

. See Kates and Barker, supra note 9, at 1412-34; Note, supra note 7.