Petition — Accuracy in Media, Inc. v. Federal Communications Commission

Supreme Court brief1976

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Supren

| JAN LU. 1916

MICHAEL ROOAK, JR., CLERK

IN THE ‘Sa

Supreme Court of the United States

OCTOBER TERM, 1975

No.

60-977 4

ACCURACY IN MEDIA, INC.,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION, and

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DANIcL J. MANELLI

4445 Yuma Street, N.W.

Washington, D.C. 20016

INDEX

Page

es eos coda e eae ee ae hen es |

reds hewh es depheekeesab ehaeen ae 2

IE 6 ov ccbccveteéersoncseceees 2

STATUTORY PROVISIONS INVOLVED ................ 2

PRET GE PRs wes encccsccnccscecsueened 4

REASONS FOR GRANTING THE WRIT................. 6

I. The Court of Appeals’ Decision is in Direct Conflict

with the Provisions and Clear Legislative Intent of

Section 396(g)(1)(A) of the Communications Act....... 6

Il. The Court of Appeals’ Decision is in Conflict with the

Principles of Broadcast Regulation Established by

This Court in F. CC. v. Pottsville Broadcasting Co.,

309 U.S. 134 (1940); U.S. v. Southwestern Cable Co.,

392 U.S. 157 (1968); and Red Lion Broadcasting Co.

Fig Se es hn 08066 scécc ac adccees 15

PTs. cece acc adnwiece wae aue Sububenaeets 19

APPENDIX:

Memorandum Opinion and Order of the F.C.C. ........... la

Judgment of the Court of Appeals ...............0055. 1Sa

Page

TABLE OF AUTHORITIES

CASES:

Columbia Broadcasting System, Inc. v. Democratic Na-

tional Committee, 412 U.S. 94 (1973) (Douglas, J.,

CIE gi ic caceacbecueeseeusss tcecvuateseess 13

FCC. vv. Pottsville Broadcasting Co., 309 U.S. 134

CO os ca xok odndonenssehewensatbiesdar 2,6, 15,17

Office of Communications of United Church of Christ v.

F.C.C., 339 P.26 994 (D.C.Cie. 1966). wc ccccccccsccces 13

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367

SK s<seaceed Dnvosscseecsennsvenns 2,6, 15, 16, 17

U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968) .2, 6, 15, 17

STATUTES:

Public Broadcasting Act of 1967, 47 U.S.C., Section 390-

PPP Perr TrYT Ty or rTerriiiire Passim

Radio Act of 1927, 44 Stat. 1162......... 00 cece eee e eee 15

28 U.S.C., Section 12S4(1). 0... cccccccccccccvcvvcccens 2

28 U.S.C., Section 2342(1). 0... cccccccccccvvecveees 2,9

47 U.B.C., Gectiom 1S1 0... cccccccccvvccccvcvees 3,9, 14

GT UB.C., Gectiem FSF oo scccccccccccccccscccccccens 15

Oe Oe I IE, go cccccetcceseseesecceseesd 3,9

47 U.S.C., Section 396

FeCeVESOEKE SE RAH OOS Ua 8606 cee ewe 6

47 U.S.C., Section 396(b).. 0.0... cece ccc cece, 6, 10

47 U.S.C., Section 396(cM 1)... . cc ccc ccc ccc ccc ccce, 6

47 U.S.C, Section 396(f)(3).. 0.0... . ccc cece eee e eee en, 6

47 U.S.C., Section 396(g)1)(A)................... Passim

S7 U.B.C., Section S08 ow... ccc ccc ccccccccccce 4,10, 11

ce ee rr ee 1]

MISCELLANEOUS:

H. Rept. No. 794, 90th Cong., Ist Sess. .................. 8

S. Rept. 772, 69th Cong., Ist Sess...................... 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

ACCURACY IN MEDIA, INC..,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION, and

UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitionier, Accuracy In Media, Inc. (AIM), respectfully prays

that a writ of certiorari issue to review the order of the United

States Court of Appeals for the District of Columbia Circuit

entered in this proceeding on October 16, 1975.

OPINIONS BELOW

The Memorandum Opinion and Order of the Federal Com-

munications Commission (Commission or FCC) is reported at

43 F.C.C.2d 851 (1973), and is reprinted in the appendix to

this petition (App., p. la). The opinion and judgment of ”

Court of Appeals, review of which is sought, is reported a

521 F.2d 288 (App., p. 15a). .

JURISDICTION

The judgment and order of the Court of Appeals was entered

on October 16, 1975. This Court has jurisdiction under the

provisions of 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the FCC has jurisdiction to enforce Section

396(gM 1A) of the a en ere Act of 1934 against Ge

ion for Public Broadcasting’ .

"y Gadnes the decision of the Court of Appeals affirming the

Commission’s decision to reject jurisdiction over the Corpora-

tion for Public Broadcasting is in direct conflict with ~

provisions and legislative intent of the Communications Act o

oe the decision of the Court of Appeals is in conflict

with the principles of broadcast regulation established by this

Court in FCC v. Pottsville Broadcasting Co., 309 U.S. 134

(1940): U.S. v. Southwestern Cable Co., 392 U.S. 157 (1968);

and Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 28: § 2342(1)

Jurisdiction of Court of Appeals

The court of appeals has exclusive jurisdiction to enjoin, set

aside, suspend (in whole or in part), or to determine the validity

United States Code, Title 47: § 151

Purposes of Act; Creation of Federal Communications

Commission

For the purpose of regulating interstate and foreign com-

merce in communication by wire and radio so as to make

available, so far as possible, to all the people of the United

States a rapid, efficient, nation-wide, and world-wide wire and

radio communication service with adequate facilities at reason-

able charges, for the purpose of national defense, for the pur-

pose of promoting safety of life and property through the

use of wire and radio communications, and for the purpose of

securing a more effective execution of this policy by centraliz-

ing authority heretofore granted by law to several agencies and

by granting additional authority with respect to interstate and

foreign commerce in wire and radio communication, there is

hereby created a commission to be known as the “Federal

Communications Commission,” which shall be constituted as

hereinafter provided, and which shal! execute and enforce the

provisions of this Act.

United States Code, Title 47: § 312(b)

Administrative Sanctions

(b) Where any person (1) has failed to operate substantially

as set forth in a license, or (2) has violated or failed to observe

any of the provisions of this Act, or (3) has violated or failed to

observe any rule or regulation of the Commission authorized

by this Act or by a treaty ratified by the United States, the

Commission may order such person to cease and desist from

such action.

United States Code, Title 47: § 396(g)(1)(A)

(1) all final orders of the Federal Communications

Purposes and Activities of the Corporation

Commission made reviewable by section 402 (1) of title 47;

(1) In order to achieve the objectives and to carry out the

purposes of this subpart [this section], as set out in subsection

(a), the Corporation is authorized to—

(A) facilitate the full development of educational

broadcasting in which programs of high quality, obtained

from diverse sources, will be made available to noncom-

mercial educational television or radio broadcast stations,

with strict adherence to objectivity and balance in all

programs or series of programs of a controversial nature;

United States Code, Title 47: § 398

Federal Interference or Control Prohibited

Nothing contained in this part [47 USC §§ 390-399) shall

be deemed (1) to amend any other provision of, or requirement

under this Act; or (2) to authorize any department, agency,

officer, or employee of the United States to exercise any direc-

tion, supervision, or control over educational television or radio

broadcasting, or over the Corporation or any of its grantees or

contractors, or over the charter or bylaws of the Corporation,

or over the curriculum, program of instruction, or personnel of

any educational institution, school system, or educational

broadcasting station or system.

STATEMENT OF THE CASE

On October 16 and November 20, 1971, Petitioner (AIM)

filed two complaints with the FCC alleging that two programs

funded by the Corporation for Public Broadcasting (hereinafter

Corporation, or CPB), and distributed by the Public Broadcast-

ing Service (PBS), violated both the Fairness Doctrine and the

“objectivity and balance” standard mandated by Section

396 (g1A) of the Communications Act of 1934 (Act).

The FCC, by a letter ruling dated January 23, 1973 (reported

ee ES a te He ~~

at 39 FCC 2d 416) ruled that the Fairness Doctrine had not

been violated. The Commission did not, however, determine

whether the programs were in compliance with Section 396

(g 1A) of the Act. It stated that this determination was a

matter of “considerable doubt, particularly in light of the

caution in Section 398 [of the Act]” which provides, among

other things, that nothing contained in Sections 390 through

399 shall be deemed to authorize any agency of the United

States to exercise “direction, supervision, or control” over

educational television broadcasting or over the Corporation.

The Commission invited coniments from interested parties as to

its authority to enforce the standards contained in Section

396 (g) 1A) of the Act (39 F.C.C.2d 416, 420 & n.1).

Additional submissions were made to the Commission, as

requested, by Petitioner and others, on the question of whether

the Commission had jurisdiction to “reach a separate conclusion

under Section 396 (g)(1)(A).”

On November 15, 1973, the Commission ruled that it did not

have jurisdiction to enforce the provisions of Section 396

(g)(1 (A) of the Act inasmuch as it was precluded from doing so

by the provisions of Section 398 of the Act (43 F.C.C.2d 851).

FCC Commission Wiley filed a concurring opinion; Commis-

sioner Hooks dissented.

Pursuant to 28 U.S.C. 2342(1), Petitioner appealed the

Commission’s decision to the Court of Appeals for the District

of Columbia Circuit. The Corporation for Public Broadcasting,

the Public Broadcast Service, the University of Maine, and other

parties, were permitted to intervene. The case was argued on

April 14, 1975; the decision of the court below was entered on

October 16, 1975. The decision of the FCC was affirmed. For

“essentially the same reasons advanced by the Commission,”

the Court of Appeals concluded that the FCC does not have

jurisdiction to enforce the mandate of Section 396 (g\1)(A)

against the CPB (521 F.2d 288, 291).

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals is in direct conflict with

the provisions and clear legislative intent of Section 396

(g1)(A) of the Communications Act of 1934, as amended.

The Court of Appeals has decided an important question of

federal law which has not been, but should be settled by this

Court. This is the first case involving an interpretation of

Section 396 (g)(1A) of the Communications Act. It is also,

so far as Petitioner is aware, the first case which raises the

issue of the legal accountability of the Corporation for Public

Broadcasting for compliance with the Public Broadcasting Act

of 1967.

The decision below, moreover, is in conflict with the princi-

ples of broadcast regulation established by this Court in F.C.C.

v. Pottsville Broadcasting Co., 309 U.S. 134 (1940); U.S. ».

Southwestern Cable Co., 392 U.S. 157 (1968); and Red Lion

Broadcasting Co. v. F.C.C., 395 U.S. 369 (1969).

I. The Court of Appeals’s Decision is in Direct Conflict

with the Provisions and Clear Legislative Intent of

Section 396 (g)(1)(A) of the Communications Act.

Section 396 was added to the Communications Act by the

Public Broadcasting Act of 1967. It is this section which creates

the Corporation for Public Broadcasting and delineates its

powers and functions. The various subsections of section 396,

among other things, authorize the establishment of the

Corporation (§ 396(b)), specify the method for the selection of

its board of directors (§396(c)(1)), prohibit the Corporation

from contributing to or otherwise supporting any political

party or candidate for public office (§396(f(3)), and qualify

the Corporation’s authorization to fund programming activities

(§ 396(g)(1 )(A)).

CO AN a 4 te

It was one of the contentions of Petitioner when it Originally

brought its two complaints to the FCC that the Corporation

had not complied with the mandate of Section 396 (g)1)(A)

with respect to the programs in question. The central activity of

the Corporation is the support of programming; this is carried

out, in large part, with public funds appropriated to CPB. The

Congress quite properly circumscribed the authority of the

Corporation to support programming activities, a fact which the

court below seems to concede in its opinion:

Section 396 (g1)A) is part of the Public Broad-

casting Act of 1967, an act which created the Corporation

for Public Broadcasting (CPB) and authorized it to fund

various programming activities... . Section 396 (gM 1MA)

qualifies that authorization in the following language:

In order to achieve the objectives and to carry out the

purposes of this subpart, as set out in subsection (a)

of this section, the Corporation is authorized to—

(A) facilitate the full development of educational

broadcasting in which programs of high quality,

obtained from diverse sources, will be made avail-

able to noncommercial educational television or

radio broadcast stations, with strict adherence to

objectivity and balance in all programs or series of

programs of a controversial nature. (521 F.2d at

290, emphasis supplied)

Having specifically described the Corporation’s authorization

to support controversial issue programming, it is Petitioner’s

contention that the Congress--by necessary inference—has

prohibited the CPB from supporting such programming which

fails to meet the “objectivity and balance” standard. The

legislative history of Section 396 (g1)(A) makes this Congres-

sional intent abundantly clear (see below). The Court of

Appeals seems to have conceeded this point as well:

Since [Section 396 (g)(1)(A)] is clearly directed to the

Corporation and its programming activities, we have no

doubt that the Corporation must respect the mandate of

the Section. (521 F.2d at 292)

The Court of Appeals then went on, however, to nullify the

regulatory enforceability of the Section:

[W]e conclude that nothing in the language and legis-

lative history of the Federal Communications Act or the

Public Broadcasting Act of 1967 authorizes the FCC to

enforce that mandate against the CPB. (Id.)

Elsewhere in its opinion, the court below refers to the section

as containing “hortatory language,” (521 F.2d at 297). The

Court of Appeals has thus dealt with the section as though it

were something in the nature of a Congressional suggestion

rather than an amendment to the Communications Act of 1934.

Long established principles of statutory construction, and the

legislative history of Section 396 (g)(1)(A) preclude such an

interpretation.

It is significant that, in its discussion of the legislative history

of Section 396 (g)(1 (A), the Court of Appeals failed to refer to

or quote from the single most relevant portion of that legisla-

tive history, the Conference Report which specifically discussed

the section. The Report (H.Rept. No. 794, 90th Cong., Ist sess.)

reflects the considered legislative intent that the Section is to be

an enforceable obligation of the Corporation:

These provisions [which prohibit editorializing and

support or opposition for political candidates] are consis-

tent with the requirements of section 396 (g)(1 (A) of the

Communications Act of 1934 (which would be added by

the conference substitute) which require that programs or

series Of programs of a controversial nature which are

made available to the Public Broadcasting Corporation

ee ee ee ee ee

must adhere strictly to objectivity and balance. (page 12,

emphasis supplied)

et + &© & ©

Under both the Senate bill and the House amendment

the Public Broadcasting Corporation is authorized to

“facilitate the full development of educational broadcast-

ing in which programs of high quality, obtained from

diverse sources, will be made available to noncommercial

educational television and radio stations’. The House

amendment provides, in addition, that in the case of

programs of a controversial nature there must be strict

adherence to objectivity and balance. The conference

substitute adopts these provisions of the House amend-

ment with a modification so as to make the requirement

more flexible. As so modified each program in a series

need not meet the test of objectivity and balance, but the

series, when considered as a whole, must. (page 13)

A further indication of the legislative intent that Section 396

(g)(1)A), and indeed Section 396 in its entirety, be enforceable

against CPB is the fact that the Congress deliberately chose to

create the Corporation, and to define its authority, as an integral

part of the pre-existing regulatory structure embodied in the

Communications Act. As a result, Commission enforcement is

required by the unequivocal language of Section | of the Act

(47 U.S.C. § 151), which established the FCC and provided that

it “shall execute and enforce the provisions of this chapter.”

Similarly, Section 312(b) of the Act authorizes the FCC to issue

cease and desist orders to “any person”’ who “has violated or

failed to observe any of the provisions of this chapter.”

There is nothing in the language of Section 396, which creat-

ed the Corporation and placed limitations on its authority, or in

the legislative history, to suggest that the Congress intended

Section 396, or any subsection thereof, to be exempt from the

overall effect of Sections 151 and 312, which, by their express

terms, apply to all provisions of the Act. On the Contrary,

Congress stated in Section 398 of the Act:

Nothing contained in sections 390-399 of this title

shall be deemed ...to amend any other provision of, or

requirement under this chapter. (47 U.S.C. 398)

Furthermore, subsection (b) of Section 396—which created

the CPB—clearly states that the Corporation“shall be subject

to the provisions of this section,” (47 U.S.C. 396(b)).

In the decisions below, both the FCC and the Court of

Appeals seized upon certain language of Section 398 of the Act

as relieving the Commission of jurisdiction to enforce Section

396 (g) 1A). Section 398 reads as follows:

Nothing contained in sections 390-399 of this title

shall be deemed (1) to amend any other provision of, or

requirement under this chapter; or (2) to authorize any

department agency, officer, or employee of the United

States to exercise any direction, supervision, or control

over educational television broadcasting, or ‘over the

Corporation or any of its grantees or contractors, or over

the charter or bylaws of the Corporation, or over the

curriculum, program of instruction, or personnel of any

educational institution, school system, or educational

broadcasting station or system. (47 U.S.C. 398)

The Court of Appeals reasoned as follows:

Since the FCC is obviously an “agency .. . of the United

States’ and since any enforcement of § 396(g)1)(A)

would necessarily entail “supervision’’ of the Corporation,

the plain words of subsection (2) preclude FCC jurisdic-

tion, (521 F.2d at 292)

Petitioner notes preliminarily that Section 398 refers only to

“sections 390-399 of this title’, and that FCC jurisdiction is

independently conferred by sections 151 and 312(b) of the Act,

which section 398 by its express terms does not amend.

But the Court of Appeals has fallen into a more basic error.

The caution against “direction, supervision, or control’’ con-

tained in Section 398 does not relate solely to the Corporation

for Public Broadcasting. That language is also made to apply to

“educational television broadcasting” in general, and to others

as well. Therefore, if Section 398 is held to “preclude FCC

jurisdiction” to enforce Sections 390 through 399 with respect

to the CPB, it must logically be held to have the same effect

with respect to ‘educational television broadcasting” in general,

including individual noncommercial broadcasting stations.

But Section 399 expressly provides that the FCC shall en-

force its provisions, which, among other things, prohibit non-

commercial educational broadcasting stations from editorializ-

ing or supporting political candidates. Noting this, the Court of

Appeals asserted that Section 399 of the Act is “contrary” to

Section 398 of the Act:

Section 399 of the 1967 Act...is contrary to the

§ 398 prohibition in that it mandates “supervision” of

noncommercial licenses and contemplates FCC enforce-

ment. (521 F.2d at 292)

Petitioner submits that the Court of Appeals has erroneously

equated regulatory enforcement of a validly enacted statute,

Section 396 (g)(1)(A), with “direction, supervision, or control”

as those terms are used in Section 398. This departure from

prudent statutory construction has led the court below to

attribute internal inconsistencies to Sections 398 and Sections

396 (gM 1 MA), 399, 151, and 312(b) of the Communications

Act. In his dissent from the FCC’s decision of November 15,

1973, FCC Commissioner Hooks correctly stated:

a eee

{T]}he inescapable language of the Communications

Act empowers the Commission to “execute and enforce

the provisions of this Act’’, of which Section 396 ef seq.

is an incorporated part. If there is a patent ambiguity

arising out of the language of Section 398, the ambiguity

should be resolved along the customarily prudent rules of

statutory construction; viz, in pari materia with the entire

Communications Act (and the comprehensive regulatory

scheme established thereby) with preponderant attention to

the unequivocal edict of Section | of the Act that the

Commission “administer and enforce” the Act, Section

396 included. And, unless it is assumed that it is the

primary purpose of Congressional law to disrupt and con-

found the activities of the populace, it cannot be reasonab-

ly argued that administration and enforcement of a duly

adopted statute (Section 396, for example) is the type of

“interference” intendedly proscribed by Section 398; the

proposition that equitable administration of federal law is

coextensive with “direction, supervision or control” (47

U.S.C. §398) is, on its face, uniquely cynical. Hence, I

find the apparent conflict between Sections | and 398 of

the Communications Act illusory rather than real and our

administration of those portions of the Act pertaining to

CPB wholly consistent with law. (Dissenting statement of

FCC Commissioner Hooks, footnotes omitted. See App.

p 10a.)

As interpreted by the FCC and the Court of Appeals, Section

396 (g) 1A) of the Communications Act has been deprived

of its status as enacted law entitled to regulatory enforcement.

It has been transformed into a mere “hortatory”’ formula (521

F.2d at 297). Moreover, the decisions below jeopardize the

other sensitive subsections of Section 396, which carefully

circumscribe the permissible limit of CPB activities. As a result,

the public will have no administrative forum in which to call the

Corporation to account.

In the case of Office of Communication of United Church of

Christ v. F.C.C., 359 F.2d 994 (D.C.Cir. 1966), the decision of

Judge Burger, now Chief Justice of this Court, quoted with

approval from a report of the House Committce on Interstate

and Foreign Commerce, as follows:

Under our system, the interests of the public are

dominant. ... Hence, individual citizens and the com-

munities they compose owe a duty to themselves and their

peers to take an active interest in the scope and quality of

the television service which stations and networks provide

and which, undoubtedly, has a vast impact on their lives

and the lives of their children. Nor need the public feel

that in taking a hand in broadcasting they are unduly

interfering in the private business affairs of others. On the

contrary, their interest in television programming is direct

and their responsibilities important. They are the owners

of the channels of television—indeed, of all broadcasting.

(359 F.2d at 1003; emphasis in original)

The above principles apply with at least equal force to the

Corporation for Public Broadcasting whose activities involve

not only the public airwaves but the public treasury as well.

In his concurring opinion in the case of Columbia Broad-

casting System, Inc. v. Democratic National Committee, 412

U.S. 94 (1973) Mr. Justice Douglas commented on the unique

status of the Corporation for Public Broadcasting, distinguishing

it from private broadcast licensees:

Public broadcasting, of course, raises quite different

problems from those tendered by the TV outlets involved

in this litigation.

Congress has authorized the creation of the Corporation

for Public Broadcasting, whose Board of Directors is

appointed by the President by and with the advice and

consent of the Senate. 47 U.S.C. §396. ...It is a non-

profit organization and by the terms of $396(b) is said

not to be “‘an agency or establishment of the United States

Government.” Yet. since it is a creature of Congress whose

management is in the hands of a Board named by the

President and approved by the Senate, it is difficult to see

why it isnot a federal agency engaged in operating a “press”

as that word is used in the First Amendment. If these cases

involved that Corporation, we would have a situation com-

parable to that in which the United States owns and

manages a prestigious newspaper like the New York Times,

Washington Post, and Sacramento Bee. The government as

owner and manager would not, as I see it, be free to pick

and choose such news items as it desired. For by the First

Amendment it may not censor or enact or enforce any

other “law” abridging freedom of the press. Politics,

ideological slants, rightist or leftist tendencies could play

no part in its design of programs. (412 U.S. at 149)

It was, in fact, the clear and obvious legislative intent of the

Congress in creating the Corporation that “‘politics, ideological

slants, rightist or leftist tendencies” would play no part in its

design or support of programs. It was for this reason that the

Congress provided, in Section 396 (g)(1)(A), that the Corpora-

tion’s programming activities must strictly adhere to “objectivity

and balance in all programs or series of programs of a controver-

sial nature.”

It is clear that the Court of Appeals was hostile to the Con-

gressional limitation placed on the authorization given to the

CPB to support controversial issue programming. The con-

stitutionality of Section 396 (g)1)(A) is not at issue in this

proceeding; the Court of appeals, however, concluded its deci-

sion with a lengthy discussion of its “constitutional misgivings”

concerning the section (521 F.2d at 297).

Petitioner recognizes that the interpretation and application

ee ee ee ee aia

of Section 396 (g 1A) might well raise constitutional issues,

and is prepared to defend the constitutionality of the section.

The Petitioner's complaints against CPB, insofar as they were

based on Section 396 (g1)(A), have been circumvented by the

erroneous decisions below. These decisions have held that the

Congress did not intend the FCC to have jurisdiction to enforce

the section, notwithstanding its deliberate incorporation into

the Communications Act of 1934, whose provisions the Com-

mission is directed to “execute and enforce” (47 U.S.C. 151).

The resuli has been to prevent the statute from being applied

and tested through the appropriate administrative and judicial

processes.

II. The Court of Appeals’ Decision is in Conflict with the

Principles of Broadcast Regulation Established by This

Court in F.C.C. v. Pottsville Broadcasting Co., 309 U.S.

134 (1940); U.S. v. Southwestern Cable Co., 392 U.S.

157 (1968); and Red Lion Broadcasting Co. v. F.C.C.,

395 U.S. 369 (1969).

From its inception in the Radio Act of 1927, broadcast

regulation in the United States has been ‘entrusted to an expert

bipartisan and independent Commission. The Senate Report

which accompanied the bill that became the Radio Act of 1927

(44 Stat. 1162) stated:

{Y]our committee decided that all power to regulate

radio communication should be centered in one indepen-

dent body, a radic commission, granting it full and com-

plete authority over the entire subject of radio. (S.Rep.

772, 69th Cong., Ist sess., p.3)

The Communications Act of 1934, which replaced the Radio

Act, has retained the principle embodied in the above-quoted

language. Central to the whole scheme of broadcast regulation is

the “public interest, convenience, or necessity’ standard con-

tained in Section 307 of the Act (47 U.S.C. 307). This Court

has stated that the standard is “as concrete as the complicated

factors for judgment in such a field of delegated authority

permit.” F. CC. v. Pottsville Broadcasting Co., 309 U.S. 134

(1940), at page 138. Like Section 307, Section 396 (g1 MA)

of the Act is not self-defining. It has been the consistent posi-

tion of this Court, however, that the interpretation and applica-

tion of the provisions of the Communications Act are “explicitly

and by implication left to the Commission’s own devising,” and

that the Commission is “the expert body which Congress has

charged to carry out its legislative policy.” Pottsville, supra, at

p. 138.

That principle was reaffirmed by this Court in U.S. v. South-

western Cable Co., 392 U.S. 157 (1968), wherein this Court

held that the FCC had jurisdiction over cable television despite

the fact that such jurisdiction was not explicitly mentioned in

the Act (see 392 U.S. at 172-73). In Southwestern, this Court

reaffirmed the broad expanse of the FCC’s jurisdictional re-

sponsibilities:

The Commission was expected to serve as the “single

Government agency” with “unified jurisdiction” and “reg:

ulatory power over all forms of electrical communication,

whether by telephone, telegraph, cable, or radio.”’ It was

for this purpose given“broad authority.” As this Court

emphasized in an earlier case, the Act’s terms, purposes,

and history all indicate that Congress ‘formulated a uni-

fied and comprehensive regulatory system for the [broad-

casting] industry.” (citing Pottsville, supra)

Finally, in Red Lion Broadcasting Co. v. F.CC, 395 US.

367 (1969), this Court upheld the Commission’s authority to

apply the Fairness Doctrine. The Court stated:

{T]he people as a whole retain their interest in free

speech by radio and their collective right to have the

medium function consistently with the ends and purposes

_ ute.

of the First Amendment. It is the right of the viewers and

listeners, not the right of the broadcasters, which is para-

mount.... (395 U.S. at 390)

The legislative history of the Communications Act, and this

Court’s decisions over the years’ have established the principle

that the FCC is the chosen instrument by which Congress

sought to obtain a cohesive, expert, and nonpartisan regulatory

policy.

The decision of the Court of Appeals, however, would re-

move sensitive provisions of the Communications Act from the

jurisdiction of the Commission. The decision of the Court of

Appeals rests on the paradoxical assertion that the Congress

intended to insure the “independence” of the CPB by itself

exercising direct control over its operations:

Ultimately, Congress may show its disapproval through

the appropriation process. . . . Through these statutory re-

quirements and control over the ‘purse-strings,’ Congress

reserved for itself the oversight responsibility for the

Corporation. (521 F.2d at 294)

Thus, despite this Court’s holding in Pottsville Broadcasting

that the FCC has the responsibility and jurisdiction, in the first

instance at least, to interpret and apply the provisions of the

Act, the Court of Appeals has held that certain provisions of the

Act lie outside the Commission's jurisdiction. Despite the hold-

ing in Southwestern Cable, supra, that the FCC’s jurisdiction is

sufficiently unified and broad to reach an entity, cable tele-

vision, not specifically mentioned in the Act, the Court of

Appeals has held that the Commission’s jurisdiction does not

reach an entity, the Corporation for Public Broadcasting, speci-

fically created by the Act. Despite the teaching of Red Lion

that rights of the public are paramount, the public has been left

without an administrative forum in which to call the CPB to

account for violations of the Act.

If the decisions below are allowed to stand, sensitive regula-

tory issues concerning the programming sponsored by the CPB

will not be addressed through the appropriate administrative

and judicial review procedures mandated by the Congress. Such

issues, if addressed at all, will be disposed of through the com-

pletely inappropriate Congressional appropriations process.

Petitioner endorses the following observations of dissenting

FCC Commissioner Hooks on these points:

There are in the larger sense, however, other more

compelling (if not more cogent) reasons why the Com-

mission is the proper body to ensure CPB’s compliance

with the Communications Act. Inasmuch as it is obvious

that somebody must administer those laws relating to CPB,

it is my contention that the Commission, an independent,

bi-partisan regulatory agency, whose members are appoint-

ed by the President with the advice and consent of the

Senate, and whose actions are subject to established,

reasonably expeditious review by the judicial and legislative

branches of government, is the most appropriate entity to

handle the task. In addition to the foregoing properties,

the Commission--with all attendant faults and errors—ex-

ecutes the difficult and sensitive regulation of broadcasting

on a day-to-day basis and, I believe, has evolved a better

“feel” (for lack of a more precise characterization) for

such matters than any other existing body.

While | suppose that an aggrieved party could refer

alleged violations of Section 396 to the Department of

Justice for prosecution, that places the Executiye Branch

of government in “control of codified CPB activities. This

not only leaves room, theoretically, for partisan applica-

tion but limits the usefulness of the doctrine of primary

jurisdiction of an adminstrative agency under which initial

claims can receive thorough consideration.

On the other hand with all due deference to the Senator

who suggested that Congress could control CPB through its

appropriations function, “purse-string’’ power is far from

the most appropriate or effective manner of administering

delicately etched law... . “Purse-string” power, especially

in the case of multi-year appropriations, is likely to mean

too little (or too much) too late; it lacks the flexibility re-

quired to fashion adequate resolutions and the public—

whose funds and frequencies are involved—has no signifi-

cant entree into Congressional budgetary proceedings

while it is accustomed to, and regularly does, direct its

inquiries and grievances about noncommercial broadcast-

ing to the Commission, as witness the instant complaint.

Consequently, abjuration in the instant matter has effect-

ively deprived any complainant of a forum wherein the

matter of possible violations can be thoroughly considered

and adjudicated. To my way of thinking, that result is

manifestly unsatisfactory. (Dissenting opinion of FCC

Commissioner Hooks, See App. p. 10a.)

CONCLUSION

For the reasons stated, the petition for writ of certiorari

should be granted.

Respectfully submitted,

DANIEL J. MANELLI

4445 Yuma Street, N.W.

Washington, D.C. 20016

* Lncdllaatlnl an wel —e

APPENDIX

Before The

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In Re Complaint of Accuracy in Media, Inc., on behalf of

Marilyn Desaulniers Concerning Fairness Doctrine

Re Public Broadcasting Service

43 FCC 2d 851 (1973)

Memorandum Opinion and Order

Adopted: November 13, 1973; Released: November 15, 1973

By the Commission: Commissioner Johnson concurring in the

result;

Commissioner Wiley concurring and issuing a statement;

Commissioner Hooks dissenting and issuing a statement.

1. By letter of January 23, 1973 (39 FCC 2d 416), we ruled

upon complaints filed by Accuracy in Media, Inc. (AIM) against

the Public Broadcasting Service in which it was alleged that the

broadcasts of programs entitled “‘the three r’s . . . and sex ed-

ucation” and “Justice?” were in violation of the fairness doctrine

(see 47 U.S.C. 315) and the provision of Section 396 (g)1)(A)

of the Communications Act of 1934, as amended, 47 U.S.C.

396 (g)(1)A), that, “In order to achieve the objectives and to

carry out the purposes of this subpart, as set out in section (a),

the Corporation is authorized to—

(A) facilitate the full development of educational

broadcasting in which programs of high quality, obtained

from diverse sources, will be made available to noncom-

mercial educational television or radio broadcast stations,

with strict adherence to objectivity and balance in all

programs or series of programs of a controversial nature;

*** *’

Our letter ruling concluded that there was no basis for a finding

of violation of the fairness doctrine. With respect to the issue of

the applicability of Section 396, we noted that AIM had not

given us the benefit of its views on the novel jurisdictional ques-

tion it was presenting, and we invited AIM and other interested

persons to brief that question separately.

2. Briefs or memoranda, including some replies, have now

been submitted by AIM, the Corporation for Public Broadcast-

ing, Horace P. Rowley, III, the Public Broadcasting Service and

Daniel Voegtly. AIM _ has also sought reconsideration of our

fairness doctrine ruling in the January 23, 1973 letter. The AIM

request for reconsideration points out that it is the right of

viewers and listeners to a fair presentation of issues which is

paramount, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,

and that the press and media “hold a powerful tool in their

hands that can be used as a weapon in molding public opinion,”

but it does not present any suggestion of how the Commission

may have erred in its original fairness doctrine ruling. The

petition for reconsideration will therefore be denied.

3. The parties who have responded to our invitation for com-

ments on our jurisdiction with respect to Section 396 (g)(1)(A)

have taken widely divergent positions. AIM urges that Congress

expected the Commission to take a positive, active role, and to

require strict compliance by the Corporation for Public Broad-

casting. Mr. Voegtly also believes that the Commission has a

duty to enforce Section 396 (g)(1)(A), and that “balance is an

extension of fairness to a more limited segment of programming,”

coupled with an effort to present each side of an issue “with

similar force and credibility.”” The Corporation, however, urges

not only that we lack jurisdiction over the operations of the

i nit aE cate Tile I ARE EO PLE A EEE DERE a

‘>

}

Corporation, which it asserts were intended to be free of govern-

mental control and censorship, but that we should also “refrain

from engaging in an indirect review of the Corporation’s pro-

gramming determinations” through application of the fairness

doctrine to the programs of licensees funded, provided or

distributed by the Corporation.' AIM disagrees in a reply

pleading with the conclusion of the Corporation that Section

396(g 1A) is an unenforceable Congressional mandate,

urging that enforcement of that section is no more prohibited

censorship than is the enforcement of Section 315. Horace P.

Rowley, Ill states that Section 396 creates a more vigorous

standard than we apply under the fairness doctrine, prohibiting

editorializing and requiring equal opportunities within a pro-

gram series for contrasting viewpoints on any “newsworthy”

issue. However, while agreeing with the Corporation that the

Commission has no control over what he terms the Corporation's

internal activities, i.e., the expenditure of money for programs,

he contends that the Corporation is a broadcaster and thus is

"The Corporation states that the Commission should continue to re-

view the operations of noncommercial stations in other respects, including

instances in which a licensee may broadcast only a portion of a program

on program series funded by the Corporation. In a subsequent pleading,

which we accept, the Corporation clarified its position to make clear that

the Commission should not review, even indirectly, the Corporation's

programming determinations with respect to programs funded, supplied or

distributed by the Corporation, because this would duplicate the Corpora-

tion’s mandate to achieve fairness (stated by the Corporation to be one

substantive test, whether denominated under the fairness doctrine or the

objectivity and balance language of Section 396(g1)A)), but that the

Commission would continue to apply the Fairness Doctrine “‘the the

overall program schedule of its licensees.’’ The Corporation reads Section

396(g) 1A) as applying to individual programs or series and, thus, believes

it improper for the Commission to apply the fairness doctrine to any

program or series furnished by the Corporation, but proper for the Com-

mission to review a licensee’s overall treatment of an issue, including a

program furnished by the Corporation. We presuine that upon such review,

the Commission would have to accept as given the fairness of the program

furnished by the Corporation if it was the only program furnished by the

Corporation on that issue.

_—— ———

subject to the fairness doctrine under Section 315. He has also

furnished a copy of aletter to him from the General A: ‘ounting

Office stating that that office has tentatively agreed not to

concern itself with program selection or content although it has

legal authority to do so. Finally, the Public Broadcasting Service,

a non-profit membership corporation made up of noncom-

mercial educational television stations which receive programm-

ing distributed by PBS and funded by the Corporation, contends

that we should construe Section 396 as imposing no obligation

different from that imposed upon licensees by the fairness

doctrine, although it suggests that we may not have the author-

ity to enforce the section against the Corporation.

4. As we noted in our letter of January 23, 1973, this is an

area of considerable doubt, and the comments we have received,

while forcefully advocating various viewpoints, have done little

to dispel the doubt. The reason for this is clear. Congress in

creating the Corporation for Public Broadcasting focussed

largely on that body’s structure and responsibilities, and paid

scant attention to its relationship, if any, to this Commission.

Thus, not only is the statute devoid of specific guidance, but

the legislative history is similarly tangential. For the reasons

which follow, we have determined that the Commission does

not have the authority to enforce Section 396(g)(1)(A).

5. We note first that Section 398 of the Communications Act,

47 U.S.C. 398, provides that nothing contained in Part IV of

the Act (the part dealing with grants for noncommercial educa-

tional broadcasting facilities (Subpart A) and the Corporation

for Public Broadcasting (Subpart B, added by Public Law

90-129, approved November 7, 1967, 81 Stat. 368)):

‘** . shall be Geemed (1) to amend any other provision

of, or requirement under this Act; or (2) to authorize any

department, agency, officer, or employee of the United

States to exercise any direction, supervision, or control

over educational television or radio broadcasting, or over

ee ee ee ee

;

}

the Corporation or any of its grantees or contractors, or

over the charter or bylaws of the Corporation, or over the

curriculum, program of instruction, or personnel of any

educational institution, school system, or educational

broadcasting station system.”

This provision, we think, makes clear that the creation of the

Corporation for Public Broadcasting by the Public Broadcasting

Act of 1967 should not be construed as conferring regulatoiy or

supervisory jurisdiction over that Corporation in the Commis-

sion unless some provision of the Act outside of Part IV either

specifically confers such jurisdiction or requires it as a necessary

part of the achievement of the Commission’s functions. No

other part of the statute refers in terms to the Corporation for

Public Broadcasting, and an assertion of jurisdiction would

necessarily rest upon the general mandate of Section 1, 47

U.S.C. 301, that the Commission “shall execute and enforce the

provisions of this Act,” and the authority in Section 312(b),

47 U.S.C. 312(b), to order “any person” to cease and desist

from violating or failing to observe “any of the provisions of

this Act.” It is appropriate, in assessing the impact of these

provisions, to take account of the facts that the Corporation

not only does not operate licensed broadcasting facilities, but is

not itself a network, compare Mt. Mansfield Television, Inc. v.

FCC, 442 F.2d 470(C.A. 2, 1971), and does not own or operate

any interconnection or program production facilities. Indeed, it

is forbidden by law from engaging in such activities. See 47

U.S.C. 396(g)(3). It is not engaged in the interstate transmission

of communications or energy by wire or radio. Compare United

States v. Southwestern Cable Co., 392 U.S. 157. In this setting

of a Congressionally mandated separation from the normal

context of regulatory jurisdiction, the generalized legislative

history takes on added significance. That history is redolent of

an intent to separate the Corporation from any outside control,

specifically including government control. As Senator Pastore

stated (113 Cong. Rec. 12986), “Throughout the hearings,

universal determination has been expressed that the Corpora-

6a 7a

| tion have maximum possible freedom from governmental or quality programs to the local stations. At all times the

political interference and control.”” House Report No. 592, . local stations have the right to accept or reject any pro-

90th Cong., Ist Sess., on H.R. 6736, p. 15, put it thusly: gram. The Corporation cannot require that a station broad-

‘How can the Federal Government provide a source of

funds to pay part of the cost of educational broadcasting

and not control the final product? That question is an-

swered in the bill by the creation of a nonprofit educa-

tional broadcasting corporation.

Every witness who discussed the operation of the

Corporation agreed that funds for programs should not be

provided directly by the Federal Government. It was

generally agreed that a nonprofit Corporation directed by

a Board of Directors, none of whom will be Government

employees, will provide the most effective insulation from

Government control or influence over the expenditure

of funds.’”*

Again Congressman Staggers stated (113 Cong. Rec. 26384):

“This bill, after recognizing the need for Federal funds

to aid in the production of programs, then addressed

itself to solving the problem of how to administer Federal

funds for broadcast programs while, at the same time,

avoiding Federal control of these programs.

No one—the administration, the committee, the wit-

nesses—wanted any hint of Federal control of broadcast

programs to be permitted.

Accordingly, the legislation calls for the formation of a

separate nonprofit, private corporation to administer funds,

both private and public, which will be used to provide high

Gr A gil SE Aaa Fated kates

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cast any program. As required under present law, and as

will be required under the new law, the sole responsibility

for what goes out over the air rests upon the individual

station licensee. This bill, I repeat does not impair or

affect the existing statutory duty and responsibility of the

station licensee.”

There is also some indication that Congress may have had in

mind reserving to itself the general oversight of the operations

of the Corporation. As Senator Cotton stated (113 Cong. Rec.

13003):

“If this bill becomes law, as I hope it will and if, as time

goes on, we have occasion to feel that there is a slanting,

a bias, or an injustice, we instantly and immediately can do

something about it. First, we can make very uncomfort-

able, and give a very unhappy experience to, the directors

of the Corporation. Second, we can shut down some of

their activities in the Appropriations Committee and in the

appropriating process of Congress with respect to this

particular network, if we wish to call it a network in the

sense that it .. general programming. The Corporation is

much more readily accessible to the Senator from South

Carolina, any other Senator, or to the Congress, if it

desired to correct any injustice or bias which might appear.”

6. In the light of the statutory language of Section 398, the

clear, if unspecific, intent of Congress to keep the Corporation

free of government control, and the detached position the

Corporation itself was given with respect to the entire noncom-

2 At p. 19, “one of the fundamental reasons for establishing the Cor- mercial educational broadcasting system, we are constrained to

poration is to remove the programming activity from governmental super-

vision.”

hold that we would not be warranted in attempting to oversee

the Corporation's execution of its duties.* Our view is reinforced

by the consideration that the individual stations remain fully

responsible for all programs they broadcast“ it is therefore

unnecessary for us to add a further layer of fairness supervision

to our present enforcement of the fairness doctrine with respect

to licensees and, where appropriate, networks. This basic

jurisdictional determination makes it inappropriate, in our view,

for us to interpret for the guidance of the Corporation the

meaning of the words “strict adherence to objectivity and

balance in all programs or series of programs of a controversial

nature.”

7. Accordingly, IT IS ORDERED, That the petition for

reconsideration filed by Accuracy In Media, Inc., IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION *

/s/ VINCENT J. MULLINS

Vincent J. Mullins

Secretary

*See attached statements of Commissioners Wiley and Hooks.

> We also reject Mr. Rowley’s view that the Corporation is a broad-

caster amenable to Section 315 regulation.

* The legislative history leaves no doubt that local stations are to main-

tain full responsibility for all programming. See S. Rept. No. 222, 90th

Cong., Ist Sess., on S. 1160, pp. 11, 14-15; H. Rept. No. 572, 90th Cong.,

Ist Sess., on H.R. 6736, pp. 18, 20; 113 Cong. Rec. 26384 (Congressman

Staggers: ““This bill, | repeat does not impair or affect the existing statutory

duty and responsibility of the station licensee.”’). This being so, and in the

light of the command of Section 398 that nothing in Part [V shall be

deemed to amend any other provision or requirement of the Act, we reject

the view of the Corporation that the fairness doctrine should not be applied

with respect to programs funded, provided oi distributed by the Corpora-

tion.

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Concurring Statement of Commissioner Richard E. Wiley

In Re Complaint of Accuracy in Media, Inc..,

on behalf of Marilyn Desaulniers Concerning Fairness

Doctrine Re Public Broadcasting Service.

It has been suggested that this Commission should assert

jurisdiction over the Corporation for Publi¢ Broadcasting (CPB)

and, thereby, enforce the provisions of Section 396(g)(1 A).

In support of that suggestion, it is pointed out that the Com-

munications Act gives us broad and expansive jurisdiction over

all interstate and foreign radio communications, and that it is

unreasonable to assume Congress intended to enact an unen-

forceable statute. When viewed only in this light, it may be

argued with some persuasiveness that the Commission should

proceed to enforce the requirements of Section 396 with no

less vigor than any other portion of the Act. Regardless of

whether we should assert such regulatory control, a position for

which I have some personal sympathy, the simple answer is that

we cannot.

Congress chose to delimit our otherwise expansive regulatory

authority over broadcasting by expressly forbidding this agency

from exercising any direction, supervision or control over

noncommercial educational broadcasting or CPB (see Section

398). Thus, a clear regulatory distinction was drawn between

Subpart B of the Act, which created a tax supported private

corporation to develop educational radio and television, and the

commercially supported broadcasting system covered elsewhere

in the Act. The legislative history, no less than the express

limitation of Section 398, indicate that Congress apparently

intended to retain direct supervisory control over “public

broadcasting,” rather than delegate that responsibility to this

or any other agency of government. While it may be unrealistic

to expect that Congress will assert its prerogative to regulate the

on-going activities of CPB, that uncertainty is no warrant for

this Commission to arrogate to itself a measure of regulatory

authority expressly forbidden by Section 398. The most per-

10a

suasive argument thut we should control the activities of CPB is

inadequate in the face of an express provision that we cannot.

An agency misconstrues the reach of its regulatory authority

when it attempts to control by implication that which it has

been denied explicitly. In the absence of Section 398, the asser-

tion of administrative supervision over CPB can be reasonably

supported; but that result, however well intentioned, cannot be

achieved by first ignoring the jurisdictional strictures creating

CPB.

If this appears to be an anomalous regulatory situation it is,

nevertheless, beyond this agency to resolve. Under the circum-

stances, the only prudent policy is to acknowledge the apparent

inconsistency between our regulatory responsibility over

broadcasting, in general, and the specific restriction of our

authority in Section 398; and to leave it to Congress to take

enforcement action where appropriate or to affirmatively dele-

gate that responsibility to this Commission. In the absence of

Congressional clarification of our responsibilities, the express

prohibition of authority must carry greater weight than the

presumed Congressional intent elsewhere in the Act.

Dissenting Statement of Commissioner Benjamin L. Hooks

In Re: Complaint of Accuracy in Media, Inc.

It is my belief that the Commission either has jurisdiction

and authority over the codified activities of the Corporation for

Public Broadcasting (hereinafter, CPB) or that such jurisdiction

has never been accurately pinpointed and the Commission should

assert it. In that connection, and throughout this discussion, I

wish to stress that | am maintaining a critical distinction between

“regulating” CPB (which I do not advocate) and administering

all those provisions of the Communications Act (47 U.S.C.

151 et seq.) relating to public broadcasting (47 U.S.C. §396

et seq.).

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First, there is no serious doubt that the Commission, by the

clear language of the Communications Act and consistent

court interpretation, has plenary and expansive authority over

all radio and television broadcasting in the nation, including

those noncommercial stations CPB was established to serve.

The Commission was instrumental in reserving these so-called

““public”’ channels which laid the foundation for CPB, it partici-

pated extensively in the legislative process which created CPB,

it is called upon regularly by Congress to comment on CPB’s

activities, including appropriations, and—as with all broadcast-

ing—it assigns frequencies for and licenses to (or withholds

licenses from) noncommercial stations according to the same

public interest, convenience and necessity standards applicable

to all stations. There is no question that individual noncom-

mercial licensees are ultimately responsible for the broadcast

of CPB programming, just as commercial stations are responsible

for matter supplied by the commercial networks.

Moreover, the inescapable language of the Communications

Act empowers the Commission to “‘execute and enforce the

provisions of this Act’, of which Section 396 ef seq. is an

incorporated part.’ If there is a patent ambiguity arising out of

the language of Section 398,? the ambiguity should be resolved

* Because I consider the principle of overall administration of Section

396 et seq. to transcend the narrow issue of adjudication of 396(g)( 1A)

complaints presented by the instant case, I merely explain parenthetically

that I construe the “objectivity and balance” portions to mean no more

than convential fairness doctrine (§315(a)4)) obligations in different

terms.

? Section 398 (47 U.S.C. $398) states as follows:

Nothing contained in this part shall be deemed (1) to amend any

other provision of, or requirement under this Act; or (2) to authorize

any department, agency, officer, or employee of the United States

to exercise any direction, supervision, or control over educational

television or radio broadcasting, or over the charter or bylaws of the

Corporation, or over the curriculum, program or instruction, or

personnel of any educational institution, school system, or educa-

tional broadcasting station or system.

l2a

along the customarily prudent rules of statutory construction;

viz, in pari materia with the entire Communications Act (and

the comprehensive regulatory scheme established thereby)

with prepondent attention to the unequivocal edict of Section |

of the Act that the Commission “administer and enforce” the

Act, Section 396 included. And, unless it is assumed that it is

the primary purpose of Congressional law to disrupt and con-

found the activities of the populace, it cannot be reasonably

argued that administration and enforcement of a duly adopted

statute (Section 396, for example) is the type of “interference”

intendedly proscribed by Section 398; the proposition that

equitable administration of federal law is coextensive with

“direction, supervision or control” (47 U.S.C. §398) is, on its

face, uniquely cynical. Hence, I find the apparent conflict be-

tween Sections | and 398 of the Communications Act illusory

rather than real and our administration of those portions of the

Act pertaining to CPB wholly consistent with law.

Additionally, the argument that seeks to equate the Commis-

sion’s regulatory responsibilities with »espect to CPB to our lack

of jurisd.ction over commercial television networks falls from

two myopic infirmities. The argument to which I advert is that,

as in the case of commercial broadcasting, we have jurisdiction

only over individual licensees rather than the central program

sources. The two flaws are: (!) CPB is not a network and, in

fact, is expressly barred from being one by Section 396(g)(3);

and (2) while there is not a single reference to commercial net-

works in the Communications Act, let alone a conferral of

jurisdiction, there are many and specific regulations relating to

CPB’s powers, duties, and limitations. Thus, any such analogy

is, prima facie, inapposite.

There are in the larger sense, however, other more compelling

(if not more cogent) reasons why the Commission is the proper

body to ensure CPB’s compliance with the Communications Act.

Inasmuch as it is obvious that somebody must administer those

laws relating to CPB, it is my contention that the Commission,

bole

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;

13a

an independent, bi-partisan regulatory agency, whose members

are appointed by the President with the advice and consent of

the Senate, and whose actions are subject to established,

reasonably expeditious review by the judicial and legislative

branches of government, is the most appropriate entity to

handle the task. In addition to the foregoing properties, the

Commission—with all attendant faults and errors—executes the

difficult and sensitive regulation of broadcasting on a day-to-day

basis and, | believe, has evolved a better “feel” (for lack of a

more precise characterization) for such matters than any other

existing body.

While I suppose that an aggrieved party could refer alleged

violations of Section 396 to the Department of Justice for

prosecution, that places the Executive Branch of government in

“control” of codified CPB activities. This not only leaves room,

theoretically, for partisan application but limits the usefulness

of the doctrine of primary jurisdiction of an administrative

agency under which initial claims can receive thorough con-

sideration. On the other hand, with all due deference to the

Senator who suggested that Congress could control CPB

through its appropriations function, “‘purse-string” power is

far from the most appropriate or effective manner of adminis-

tering delicately etched law. It is for that reason that Congress

has provided the Commission with a full panoply of administra-

tive prerogatives in the broadcast field from declaratory rulings,”

to cease and desist, to forfeiture, to short-term renewal, to

revocation, to injunction* and so on in order that the regulatory

actions can be shaped to best serve the ends of justice and the

public interest. “‘Purse-string” power, especially in the case of

multi-year appropriations, is likely to mean too little (or too

much) too late; it lacks the flexibility required to fashion

adequate resolutions and the public—whose funds and frequen-

cies are involved—has no significant entree into Congressional

75 U.S.C. §554(e).

“ Seriatum, 47 U.S.C. § §312, 503, 309, 312, 401.

14a

budgetary proceedings while it is accustomed to, and regularly

does, direct its inquiries and grievances about noncommercial

broadcasting to the Commission, as witness the instant com-

plaint. Consequently, abjuration in the instant matter has

effectively deprived any complainant of a forum wherein the

matter of possible violations can be thoroughly considered and

adjudicated. To my way of thinking, that result is manifestly

unsatisfactory.

Finally, it cannot be asserted with exceptional rationality

that the Commission (as opposed to some other power) should

not be entrusted with the fragile chore of administering those

Communications Act provisions applying to CPB because of the

potential for official mischief or abuse. Congress and the courts

have already entrusted the Commission with immense power to

regulate the nearly 10,000 broadcast stations in this country

and, considering the overwhelmingly greater audiences and in-

fluence of the commercial stations, Commission administration

of CPB’s statutory obligations is likely to have on national

communications (in the words of the late Senator Everett

Dirksen) “‘all the impact of a snowflake on the bosom of the

Potomac.” If the Commission cannot be entrusted to fairly

administer the Communications Act provisions relating to CPB

(with a $45 million dollar a year budget and fewer than 1,000

noncommercial station outlets), then it is illogical to presume

that it can fairly regulate the powerful, multi-billion dollar

broadcast industry, with its 26,000 (approximately) services.®

And, in repetition, should any such errors or abuses occur, they

are immediately and reassuringly subject to judicial correction.

In view of the above, and fully comprehending the serious

and touchy political implications of this posture, I believe we

have incorrectly avoided a legitimate regulatory obligation.

I respectfully dissent.

5 38th Annual FCC Report. p. 160 (1972).

‘

bette Ao tt OB

15a

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

No. 74-1028

Accuracy in Media, Inc., Petitioner

Federal Communications Commission and the

United States of America, Respondents

Argued April 14, 1975

Decided October 16, 1975

ets. & *® & &

Before BAZ” LON, Chief Judge, LEVENTHAL, Circuit Judge

and WEIGEL, *United States District Judge for the Northern

District of California.

BAZELON, Chief Judge:

Accuracy in Media, Inc. (AIM) filed two complaints with the

FCC against the Public Broadcasting Service (PBS) concerning

two programs distributed by PBS to its member stations. AIM

alleged that the programs, dealing with sex education and the

American system of criminal justice, were not a balanced or

objective presentation of each subject and requested the FCC to

order PBS to rectify the situation. The legal basis for AIM’s

complaints was the Fairness Doctrine’ and 47 U.S.C. §396

" See The Fairness Doctrine and the Public Interest Standards, 48

F.C.C.2d 1, appeal docketed National Citizens Comm. for Broadcasting v

te Se eee oe

l6a

(g)1)(A)(1970). On its initial hearing of the matter, the FCC

concluded that the PBS had not violated the Fairness Doctrine

and invited comments from interested parties on its authority

to enforce whatever standard of program regulation was con-

tained in § 396(g)(1)(A).2, AIM does not seek review of the

Commission’s decision on the Fairness Doctrine issue.

Section 396(g)(1)(A) is part of the Public Broadcasting Act

of 1967, an act which created the Corporation for Public Broad-

casting (CPB) and authorized it to fund various programming

activities of local, non-commercial broadcasting licensees.*

Section 396(g)(1)(A) qualifies that authorization in the follow-

ing language:

In order to achieve the objectives and to carry out the

purposes of this subpart, as set out in subsection (a) of

this section, the Corporation is authorized to—

(A) facilitate the full development of educational

broadcasting in which programs of high quality, obtained

from diverse sources, will be made available to non-

commercial educational television or radio broadcast

stations, with strict adherence to objectivity and balance

in all programs or series of programs of a controversial

nature... .

AIM contends that since the above-mentioned PBS programs

were funded by the CPB, pursuant to this authorization, the

programs must contain “strict adherence to objectivity and

balance”, a requirement AIM contends is more stringent than

FCC, No. 74~—1700 (D.C.Cir. July 3, 1974); Applicability of the Fairness

Doctrine in the Handling of Controversial Issues of Public Importance, 40

F.C.C. §98 (1964). Cf. 47 U.S.C. §315(a) (19790).

2 Accuracy in Media, Inc., 39 F.C.C.2d 416, 420 & n.1 (1973).

3 See —U.S.App.D.C. at page—, 521 F.2d at page 291 infra.

wh NL CLE leat: RE TES Ac in LAN i it ls as

)

17a

the standard of balance and fairness in overall programming

contained in the Fairness Doctrine.* AIM alleges that the two

relevant programs did not meet this more stringent standard of

objectivity and balance.

After consideration of the comments received on the matter,

invited in its preliminary decision discussed above, the Com-

mission concluded that it had no jurisdiction to enforce the

mandate of §396(g)(1)(A) against CPB.* Having reached this

result, the Commission thought it inappropriate to comment on

what standard of program regulation was established by §396

(g)(1)(A) and whether that standard was more stringent than

the Fairness Doctrine. The Commission did not explicitly con-

sider whether the standard of §396(g)(1)(A), whatever that

standard might be, could be enforced against individual non-

commercial licensees under the traditional jurisdictional grants

contained in the Federal Communications Act. AIM petitions

for review of the Commission’s decision arguing that the Com-

mission wrongly concluded that it had no jurisdiction to enforce

the mandate of §396(g)(1)(A) against the CPB.

1. The Organization of Public Broadcasting

in the United States

Resolution of the issues raised by AIM’s petition requires an

* See Brief for Petitioner Accuracy in Media, Inc., at 38—42. Apparently,

AIM contends that §396(g)1)(A) expands the Fairness Doctrine in two

ways. First, under $396(g)(1)(A) the licensee, AIM argues, must achieve a

balanced presentation of issues in each program or series of programs and

may not rely on balanced discussion in overall programming to satisfy the

Section, as the licensee may to satisfy the Fairness Doctrine. See note 1

supra. Second, the use of the term “objective’’, somewhat foreign to Fair-

ness Doctrine discussion, suggested to AIM that a more searching inquiry

into alleged factual inaccuracies than contemplated by the Fairness

Doctrine, see note 39 infra, is contemplated by § 396(g){1)(A).

® Accuracy in Media, Inc., 43 F.C.C.2d 851 (1973).

18a

understanding of the operation of the public broadcasting sys-

tem. There are three tiers to this operation, each reflecting a

different scheme of governmental regulation. The basic level is

comprised of the local, noncommercial broadcasting staticns

that are licensed by the FCC* and, with a few exceptions, ”

subject to the same regulations as commercial licenses. Through

the efforts of former Commissioner Frieda Hennock, the FCC

has reserved exclusive space in its allocation of frequencies for

such noncommercial broadcasters. Other than this specific

reservation, noncommercial licenses are still subject to the same

renewal process and potential challenges as their commercial

counterparts.

Such was the state of the public broadcasting system until

the passage of the Educational Television Facilities Act in 1962.°

The Act added the element of government funding to public

broadcasting by establishing a capital grant program for non-

commercial facilities. This second level of the system was re-

organized and expanded by the Public Broadcasting Act of

1967'® which created the Corporation for Public Broadcasting

* 47 U.S.C. §307 (1970). See also 47 C.F.R. §73.621 (1973).

7? See, eg., 47 C.F.R. §73.621 (1973) (qualification standards for

noncommercial broadcasters and regulations pertaining to advertising);

47 U.S.C. §399 (1970) (educational broadcasting stations prohibited from

editorializing and required to keep tapes of controversial programs).

*See Sixth Report and Order on Television Allocation 41 F.C.C. 148,

158-67, 227-563 passim (1952); id. at 588-605 (Hennock, Comm’r, con-

curring in part, dissenting in part). See also Joint Council on Educ. Broad-

casting v. FCC, 113 U.S.App.D.C. 86, 305 F.2d 755 (1962); Comm. for

Economic Development, Broadcast and Cable Television: Policies for

Diversity and Change 47 (1975). For an early history of the reservation of

broadcast frequencies, see J. Powell, Channels of Learning: The Story of

Educational Television (1962).

*® Educational Television Facilities Act of May 1, 1962, Pub.L.No.

87-447, 76 Stat.64.

*® Public Broadcasting Act of Nov. 7, 1967, Pub.L.No. 90-129, 81 Stat.

365.

NMI mute like Gb Ris SSIS RE

Meas SAY Baer Bissix RY Rate

19a

(CPB). The Corporation, the product of a study made by the

Carnegie Commission on Educational Television,'’ was estab-

lished as a funding mechanism for virtually all activities of

noncommercial broadcasting. In setting up this nonprofit, private

corporition, the Act specifically prohibited CPB from engaging

in any form of “communication by wire or radio.’’**

The third level of the public broadcasting system was added

in 1970 when CPB and a group of noncommercial licensees

formed the Public Broadcasting Service (PBS) and National

Public Radio.'*? The Public Broadcasting Service operates as the

distributive arm of the public television system. As a nonprofit

membership corporation, it distributes national programming to

approximately 150 educational licensees via common carrier

facilities. This interconnection service is funded by the Corpora-

tion (CPB) under a contract with PBS; in addition, much of the

programming carried by PBS is either wholly or partially funded

by CPB. National Public Radio provides similar services for non-

commercial radio. In 1974, CPB and the member licensees of

PBS agreed upon a station program cooperative plan’* to insure

"* See Burke, The Public Broadcasting Act of 1967: Part I: Historical

Origins and the Carnegie Commission, 6 Educ. Broadcasting Rev. 105-119

(1972); Part Il: The Carnegie Commission Report, Development of Legis-

lation, and the Second National Conference on Long-Range Financing, 6

Educ. Broadcasting Rev. 178-192 (1972); Broadcast and Cable Television,

supra note 8, at 47-48.

'2 The words “‘communication by wire or radio” are in the general

jurisdictional grant of the FCC ir 47 U.S.C. §§151, 152. The 1967 Act

categorically lists the facilities that the Corporation may not own or

operate, 47 U.S.C. §396(g)(3). All of these facilities come within the

statutory definition of communication by wire or radio as set forth in 47

U.S.C. §153(a) and (b). We discuss in Part II the relevance of this pro-

hibition to the denial of jurisdiction by the FCC.

"3 See Broadcast and Cable Television, supra note 8, at 47.

'* The Station Program Cooperative (SPC) is a unique concept in pro-

gram selection and financing for public television stations. Though the idea

20a

local control and origination of noncommercial programming

funded by CPB. Though PBS is the national coordinator under

this scheme, it is not a “network” in the commercial broadcast-

ing sense, and does not engage in ““communication by wire or

radio,” except to the extent that it contracts for interconnection

services.

Il. FCC Jurisdiction Over the Corporation

for Public Broadcasting

With the structure of the public broadcasting system in view,

we turn to AIM’s contention that the FCC should enforce the

mandate of §396(g)(1)(A) against the CPB. Since the Section is

clearly directed to the Corporation and its programming activi-

ties, we have no doubt that the Corporation must respect the

mandate of the Section. However, we conclude that nothing in

the language and legislative history of the Federal Communica-

tions Act or the Public Broadcasting Act of 1967 authorizes the

FCC to enforce that mandate against the CPB.

Section 398 of the Communications Act expresses the clear

intent of Congress that there shall be no direct jurisdiction of

the FCC over the Corporation. That section states that nothing

in the 1962 or 1967 Acts “shall be deemed (1) to amend any

other provision of, or requirement under this Act; or (2) to

authorize any department, agency, officer, or employee of the

of public television as a ‘‘fourth network” had been proposed at various

times, the 1974 plan reversed this trend toward centraliziation. Under the

SPC, certain programming will be produced only if the individual local

Stations decide together to fund the production. The local licensees will be

financed through the CPB and other sources; the funding of specific pro-

grams will be by a 4 to 5 ratio (station funds to national cooperative

funds). The aim of this cooperative is to reinforce the existing licensee

responsibility for programming discretion. Through this plan the local

stations will eventually assume the responsibility for support of the co-

operative and the Corporation will concentrate on new programming

development. See N. Katzman, Public Television's Station Program Co-

operative (mimeo, 1974).

2la

United States to exercise any direction, supervision or control

over educational telelvisici or radio broadcasting, or over the

Corporation or any of its grantees or contractors . . ..” Since the

FCC is obviously an “agency . . . of the United States” and since

any enforcement of §396(g)(1)(A) would necessarily entail

“supervision” of the Corporation, the plain words of subsection

(2) preclude FCC jurisdiction. We decline to rely entirely on the

literal meaning of § 398, however. Section 399 of the 1967 Act,

as amended in 1973,"* is contrary to the §398 prohibitior in

that it mandates “supervision” of noncommercial licenses and

contemplates FCC enforcement.'* The conflict between §398

and §399 creates at least an ambiguity which casts a cloud on

the literal meaning of $398. To resolve any doubts created

thereby, we look to the legislative history of the 1967 Act for

extrinsic evidence of its meaning.'’

Congress desired to establish a program funding agency which

would be free from governmental influence or control in its

operations. Yet, the lawmakers feared that such complete

autonomy might lead to biases and abuses of its own. The

unique position of the Corporation is the synthesis of these

competing influences. Reference to the legislative history of the

*® 47 U.S.C. §399 (Supp. II] 1973).

*® Section 399 prohibits noncommercial licensees from political

editorializing and requires them to keep tapes of controversial program-

ming. This requirement implies a supervisory role for the FCC over the

record-keeping.

"7? Section 398, formerly §397, was amended by the 1967 Act to

include the Corporation and its activities. The original section was enacted

as a provision of the Educational Television Facilities Act of 1962. The

prohibition on federal interference was included then as part of an under-

standing that “the FCC is not to exercise any control of funds under this

program”. S.Rep.No.67, 87th Cong., 2d Sess., at 9 (1962), U.S.Code Cong.

& Admin.News 1962, pp. 1614, 1620. The expansion of the prohibition to

apply to the Cornoration and its activities is in keeping with the original

fear that financial support by the Government could lead to control over

speech.

Se Ce

22a

1967 Act shows a deep concern that governmental regulation or

control over the Corporation might turn the CPB into a Govern-

ment spokesman. Congress thus sought to insulate CPB by

removing its “programming activity from governmental supervi-

sion.’’** Representative of this intent is the following statement

from the Report of the House Committee on Interstate and

Foreign Commerce: '*®

How can the Federal Government provide a source of

funds to pay part of the cost of educational broadcasting

and not control the final product? That question is an-

swered in the bill by the creation of a nonprofit educa-

tional broadcasting corporation.

Every witness who discussed the operation of the Cor-

poration agreed that funds for programs should not be

provided directly by the Federal Government. It was

generally agreed that a nonprofit Corporation, directed by

a Board of Directors, none of whom will be Government

employees, will provide the most effective insulation from

"* H.R.Rep.No.572, 90th Cong., Ist Sess., at 19 (1967), U.S.Cong. &

Admin.News 1967, pp. 1772, 1810.

*® Id., at 15, U.S.Code Cong. & Admin.News 1967, p. 1805. Senator

Pastore, in his opening statement to the subcommittee hearings on the

1967 Act, emphasized his concern:

I intend to see that a full record is developed on this point and

every possible safeguard written into the legislation necessary to

assure complete freedom from any Federal Government interference

over programming.

Hearings on S. 1160 Before the Subcomm. on Communications of the

Senate Comm. on Commerce, 90th Cong., Ist Sess., 9 (1967) (Senate

Hearings). See Senate Hearings, 250 (Remarks of Newton Minow); Hear-

ings on H.R. 6736 and S. 1160 Before the House Comm. on Interstate and

Foreign Commerce (House Hearings), 90th Cong., !st Sess., 493 (1967)

(Statement of E. William Henry); 113 Cong.Rec.26384 (1967) (Remarks

of Rep. Staggers).

23a

Government control or influence over the expenditure

of funds.

In addition to this legislative history and the aforementioned

prohibition contained in § 398, we note that any FCC jurisdic-

tion over the CPB would constitute a radical extension of the

FCC’s basic jurisdictional grant. The jurisdictional provisions

of the Communications Act limit FCC regulation to “interstate

and foreign communication by wire or radio.”” The Corporation

for Public Broadcasting is expressly forbidden to engage in such

activities.*° While the Supreme Court has described the juris-

dictional powers of the FCC as “not niggardly, but expansive,”*"

there are limits to those powers. No case has ever permitted,

and the Commission has never, to our knowledge, asserted

jurisdiction over an entity not engaged in “communication by

wire or radio.”

Petitioner’s reliance upon FCC jurisdiction over cable televi-

sion franchises to support its jurisdictional claim is misplaced.

Jurisdiction over CATV was expressly predicated upon a finding

that the transmission of video and aural signals via the cable was

“interstate . . . communication by wire or radio.”** Further,

2° See note 12, supra. See also 47 U.S.C. §§ 301, 303, (1970).

2" National Broadcasting Co. v. United States, 319 U.S. 190, 219, 63

S.Ct. 997, 87 L.Ed. 1344 (1943).

22 United States v. Southwestern Cable Co., 392 U.S. 157, 168, 88 S.Ct.

1994, 2000, 20 L.Ed.2d 1001 (1968). In Southwestern, the Court recog-

nized the extension of FCC jurisdiction to CATV as part of “‘the rapidly

fluctuating factors characteristic of the evolution of broadcasting and of

the corresponding requirement that the administrative process possess

sufficient flexibility to adjust itself to these factors.” 392 U.S. at 172-73,

88 S.Ct. at 2003. Cable televisior was an unforseen technological in-

novation at the time of the 1934 Communications Act; Congress intended

to include forthcoming scientific improvements within the FCC’s jurisdic-

tion. The CPB, however, was not a ‘echnological innovation and was created

by Congress itself. The intended |aits to FCC regulation thus could have

been changed and were not. The intent of the §398 prohibition is thus

manifest. See also /ilinois Ci:izens Comm. for Broadcasting v. FCC, 467 «

F.2d 1397 (7th Cir. 1972)

24a

assertions of ‘‘jurisdiction” over networks*™ are really no more

than claims of expansive authority over the owned or affiliated

individual licensees. In no case has the FCC taken direct juris-

diction over a network; in any event, CPB cannot be considered

a network. In view of these prevailing limits, we will not presume

that Congress meant by §396(g)(1)(A) to radically alter the

jurisdictional base of the FCC absent a clear statement to that

effect.

AIM maintains that this view of FCC jurisdiction to enforce

§ 396(g)(1 A) renders the Section nugatory and hence ignores

the Congressional sentiment that biases and abuses within the

public broadcasting system should be controlled." We do not

view our holding on the FCC’s jurisdiction as having that effect.

Rather, we take notice of the carefully balanced framework

The Corporation was established as nonprofit and non-

political in nature** and is prohibited from owning or operating

“any television or radio broadcast station, system or network,

community antenna system, or interconnection, or production

facility.""*”_ Numerous statutory safeguards were created to

3 See National Broadcasting Co. v. United States, 319 U.S. 190 (1943);

lacopi v. FC™, 451 F.2d 1142 (9th Cir. 1971); Mount Mansfield Television,

Inc. v. FCC, 442 F.2d 470 (2d Cir. 1971); see also Appalachian Research

& Defense Fund, 39 F.C.C.2d 708, 710-12 (1973); Phillip H. Schott, 29

F.C.C.2d 35, 36 (1971) (in which the Commission expressly refused to

assert jurisdiction over networks).

24 See United States v American Trucking Ass'n, 310 U.S. 534, 546-47,

60 S.Ct. 1059, 84 L.Ed. 1345 (1940); cases cited note 22 supra; cf. Zuber

v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969).

2° Brief for Petitioner at 43.

26 47 U.S.C. §396(f) (1970).

27 47 U.S.C. §396(g3) (1970).

25a

insure against partisan abuses.** Ultimately, Congress may

show its disapproval of any activity of the Corporation through

the appropriation process.** This supervision of CPB through its

funding is buttressed by an annual reporting requirement.*°

Through these statutory requirements and control over the

“purse-strings,” Congress reserved for itself the oversight

responsibility for the Corporation.”

2® Other statutory checks on the Corporation include: restricting the

Board membership to no more than eight out of fifteen members from the

same political party, §396(c1). The composition of the Board was an

important issue during debate and the decision to make the Board bi-

partisan was a significant addition to the original Carnegie Commission

proposal. The Act also requires that the CPB’s accounts be audited annual-

ly by an independent accountant, §396(1)(1 (A), and may be audited by

the General Accounting Office, $396(1M 2) A).

2® Section 396(k) assures that most of the CPB’s operating budget be

derived through the Congressional appropriation process.

3° 47 U.S.C. §396(i) (1979).

3" Senator Cotton explained Congressional oversight:

If this bill becomes law . . . and if, as time goes on, we have oc-

casion to feel that there is slanting, a bias, or an injustice, we instant-

ly and immediately can do something about it. First, we can make

very uncomfortable, and give a very unhappy experience to, the

directors of the Corporation. Second, we can shut down some of

their activities in the Appropriations Committee and in the ap-

propriating process of Congress . . .. The Corporation is much more

readily accessible . . . to the Congress, if it is desired to correct any

injustice or bias which might appear.

113 Cong.Rec.13003 (1967). Senator Pastore rebutted any inference of

Corporation lack of accountability:

The whole responsibility here under this law is to the Congress of

the United States . . .. [W]e don’t have to repeat the appropriation if

we feel this is a failure. This is ali subject to the scrutiny of the

Congress of the United States, and that is the point I want to leave

here.

Senate Hearings, supra note 19 at 123.

26a

A further element of this carefully balanced framework of

regulation is the accountability of the local noncommercial

licensees under established FCC practice, including the Fairness

Doctrine in particular. This existing system of accountability

was clearly recognized in the 1967 legislative debates as a crucial

check on the power of the CPB. Congressman Staggers, chair-

man of the House committee which considered the Public

Broadcasting Act and floor manager of the Act, described the

role of local responsibility.*?

32 113 Cong.Rec. 26384 (1967) (emphasis added). See also Hearings on

H.R. 6736 & S. 1160 Before the House Comm. on Interstate and Foreign

Commerce, 90th Cong., Ist Sess. 188, 221 (1967):

Mr. HYDE. We would license all the individual stations in the

educational network or those not operating in the network. Their

operation would be subject to our licensing authority.

In that connection, we would be interested in the programming

that they present. They would be getting these programs through the

assistance of public corporation and that is where our relationship

would lie.

Mr. HYDE. The station operator must be the judge, the licensee.

Mr. KUYKENDALL. Who holds them responsible?

Mr. HYDE. The FCC.

Mr. KUYKENDALL. So you are the boss of this?

Mr. HYDE. We are the boss in the sense that we hold a licensee

responsible for everything it broadcasts. There are certain rules and

regulations, certain policies, which are applicable, but the judgment

as to whether a program is received or not received, or the condi-

tions, is up to the licensee of the individual station.

Reliance on the Fairness Doctrine as one element of the CPB regulatory

scheme is evident in the following exchange between Senator Thurmond

and Senator Pastore:

27a

At all times the local stations have the right to accept or

reject any program. The Corporation cannot require that a

station broadcast any program. As required under present

law, and as will be required under the new law, the sole

responsibility for what goes out over the air rests upon the

individual station licensee. This bill, I repeat, does not im-

pair or affect the existing statutory duty and responsibility

of the station licensee.

We find nothing in §398 which limits established FCC

authority, including the Fairness Doctrine, over local non-

commercial licensees.** The §398 prohibition against govern-

mental interference is expressly limited to authorizations “con-

tained in [this part] ” of the Communications Act. The Fairness

Mr. THURMOND. .. . [W] ould the fairness doctrine promulgated

by the Federal Communications Commission provide for the airing

of philosophies or ideas contrary to those which may be expressed in

programs prepared by the Corporation?

Mr. PASTORE. Well, the lizensee who accepts the program is

subject to the Communications Act, and the fairness doctrine thus

applies. . ..

Mr. THURMOND. Would the time be offered free of charge, as is

now required under the fairness doctrine to give the opposing view?

Mr. PASTORE. Absolutely. If anyone feels he is offended under

the fairness doctrine, he can appeal to the FCC and he will receive

the same privileges and the same courtesies which he receives under

commercial television.

113 Cong.Rec.13002 (1967). See also House Hearings at 250, 364, 517.

*3 While §398 prohibits FCC jurisdiction over CPB and its program-

related activities, i.e., production, funding or distribution, the Commission

retains its authority concerning the broadcasting of programs, whether

funded by CPB or not. In fact, as discussed in Part III, FCC regulation of

the educational licensees was seen as the ultimate check on the public

broadcasting systeim. In this light $396(g1)(A) is in part a reminder to

CPB that the programs it finances will be subject to the same fairness

requirements as all other programming.

28a

Doctrine and other public interest responsibilities are contained

in provisions outside of the Public Broadcasting Act (§§

390-99).** Additionally, subsection (1) of §398 clearly stated

that nothing in these sections of the 1967 Act shall be deemed

to amend “‘any other provision . . . or requirement under this

chapter.” We thus conclude that the Commission correctly held

that it may enforce the Fairness Doctrine against noncommercial

licensees.

The framework of regulation of the Corporation for Public

Broadcasting we have described—maximum freedom from inter-

ference with programming™ coupled with existing public

accountability requirements—is sensitive to the delicate con-

stitutional balance between the First Amendment rights of the

broadcast journalist and the concerns of the viewing public

struck in Columbia Broadcasting System, Inc. v. Democratic

National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d

772 (1973). There the Supreme Court warned that “only when

the interests of the public are found to outweigh the private

journalistic interests of the broadcasters’”** will governmental

interference with broadcast journalism be allowed. The Court

on the basis of this rule rejected a right of access to broadcast

air time greater than that mandated by the Fairness Doctrine as

constituting too great a “risk of an enlargement of Govern-

ment control over the content of broadcast discussion of

public issues.””*”

34 The Fairness Doctrine finds its source of authority in the language of

47 U.S.C. §315(a) specifically, and in the “public convenience, interest

and necessity” provision of 47 U.S.C. §303 (1970) generally. See note 1,

supra.

35 See 47 U.S.C. §396(a6), (g 1D) (1970); Senate Hearings at 212

(remarks of E. William Henry).

6 412 U.S. at 110, 93 S.Ct. at 2090.

37 Jd. at 126, 93 S.Ct. at 2098.

29a

It is certainly arguable that FCC application of the standard—

whatever that standard may be—of §396(g)(1)(A) could “risk

[an] enlargement of Government control over the content of

broadcast discussion of public issues” in the following two

ways:** whereas the existing Fairness Doctrine requires only

that the presentation of a controversial issue of public impor-

tance be balanced in overall programming, § 396(g)(1)(A) might

be argued to require balance of controversial issues within each

individual program. Administration of such a standard would

certainly require a more active role by the FCC in oversight of

programming. Furthermore, whereas the FCC has at present

carefully avoided anything but the most limited inquiry into the

factual accuracy of programming,*® §396(g)(1)(A) by use of

the term “‘objective’’ could be read to expand that inquiry and

thereby expand FCC oversight of programming. Both of these

potential enlargements of government control of programming,

whether directed against the CPB, PBS or individual noncom-

mercial licensees,*° threaten to upset the constitutional balance

3® See note 4 supra.

3® See, e.g., Neckritz v. FCC, 163 U.S.App. D.C. 409, 502 F.2d 411

(1974), aff'g Alan F. Neckritz, 37 F.C.C.2d 528 (1973); Hunger in America,

20 F.C.C.2d 143 (1969); The Selling of the Pentagon, 30 F.C.C.2d 150

(1971).

*° Although § 396(g\1)A) by its terms is directed only to the Cor-

poration, the question has arisen whether it may be applied against in-

dividual noncommercial licensees, given existing FCC jurisdiction over

them, the fact the 1967 Act as amended imposes burdens on them not

applicable to their commercial counterparts, see note 16 supra; 113 Cong.

Red. 7020 (1967) (remarks of Sen. Thurmond), and the Commission's

power under the “public interest” standard to enforce provisions of the

Communications Act and general law against licensees. See 47 U.S.C. §

151 (1970); Star Stations of Indiana, Inc., 51 F.C.C.2d 95, 100-07 (1975);

Alabama Educ. Television Assn., 50 F.C.C.2d 461 (1975); Uniform Policy

as to Violations by Applicants of Laws of United States, 1 P & F Radio

Reg. 91:495 (pt. 3) (1951).

30a

struck in CBS. We will not presume that Congress meant to

thrust upon us the substantial constitutional questions such a

result would raise.** We thus construe §396(g)(1)(A) and the

scheme of regulation for public broadcasting as a whole to

avoid such questions.

Since AIM’s original complaint was filed against the iocal licensees and

PBS, the contention §396(g1)A) applied to those entities was before

the Commission and this court may review the Commission’s implicit

ruling that no such authority exists. See Office of Communication of

Christ Church v. FCC, 150 U.S.App.D.C. 339, 465 F.2d 519, 523-24 & n.

17 (1972); ef. 47 U.S.C. §405 (1970); Joseph v. FCC, 131 U.S.App.D.C.

207, 404 F.2d 207, 210 (1968).

*’ It is an often stated rule that “a statute should be interpreted, if

fairly possible, in such a way as to free it from not insubstantial constitu-

tional doubts.” Lynch v. Overholser, 369 U.S. 705, 710-11, 82 S.Ct. 1063,

1067, 8 L.Ed.2d 211 (1962). See Crowell v. Benson, 285 U.S. 22, 62, 52

S.Ct. 285, 76 L.Ed. 598 (1932). See also Tarlton v. Saxbe, 165 U.S.App.

D.C. 293, 507 F.2d 1116 (1974).

Further constitutional doubts concerning an “objectivity and balance”

standard may be raised on vagueness grounds. Such words may require “‘all

persons to guess just what the law really means to cover, and fear of a

wrong guess inevitably leads people to forego” their First Amendment

rights. Barenblatt v. United States, 360 U.S. 109, 137, 79 S.Ct. 1081,

1099, 3 L.Ed.2d 1115 (1959) (Black, J., dissenting); see Smith v. Goguen,

415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Lewis v. City of

New Orleans, 415 U.S. 130, 94 §.Ct. 970, 39 L.Ed.2d 214 (1974); Inter-

state Circuit v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d

415 (1968); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777,

96 L.Ed. 1098 (1952).

The constitutional doubts discussed in the text are raised by a regula-

tory scheme in which an administrative agency has review powers over the

speech of a publicly-funded entity. The constitutional issues raised by

public funding decisions which discriminate on the basis of the contents of

the messages to be funded would be substantially different. We may, as did

the Supreme Court in Columbia Broadcasting System, Inc. v. Democratic

Nat'l Comm., 412 U.S. 94, 119-21, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973),

assume the constitutional balance discussed in the text applies whether

or not the actions of the licensees are considered “state” or ““government-

al” action, so long as the issue is the scope of FCC enforcement powers

and not the permissibility of public-funding decisions. See also Cousins v.

Wigoda, 419 U.S. 477, 483 -4n. 4, 95 S.Ct. 541, 42 L.Ed.2d 595.

3la

Our view of §396(g)(1)(A), as colored by the constitutional

misgivings just expressed, does not presume the Section to be

superfluous. Rather we view the provision as a guide to Congres-

sional oversight policy and as a set of goals to which the Direc-

tors of CPB should aspire.**? The provision is not a substantive

standard, legally enforceable by agency or courts. The language

of the Section comports with this view:

The Corporation is authorized to—(A) facilitate the full

development of educational broadcasting in which pro-

grams of high quality, obtained from diverse sources, will

be made available . . . with strict adherence to objectiviiy

and balance . . . (emphasis added).

The Corporation is not required to provide programs with

“strict adherence to objettivity and balance” but rather to

“facilitate the full development of educational broadcasting in

which programs . . . will be made available . . ..”” We leave the

interpretation of this hortatory language to the Directors of the

Corporation and to Congress in its supervisory capacity. We

hold today only that the FCC has no function in this scheme of

accountability established by §396(g)(1)(A) and the 1967 Act

in general other than that assigned to it by the Fairness Doc-

trine. Therefore, we deny the petition for review and affirm the

Commission’s decision rejecting jurisdiction over the Corpora-

tion for Public Broadcasting.

So Ordered.

*2-This sort of statutory authorization is not unknown in the U.S.Code.

See, e. g., National Environmental Policy Act of 1969, 42 U.S.C. § 4331

(1970); Employment Act of 1946, 15 U.S.C. § 1021 (1970); Atomic

Energy Act of 1954, 42 U.S.C. §§ 2011, 2013 (1970); National Labor

Relations Act, 29 U.S.C. § 151 (1970).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.