# Petition — Accuracy in Media, Inc. v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1558%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 934 ## Text Supren ie | 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, v. 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 ii 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 . tT , } 4 t 7 3a 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. _—— ——— 4a 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 ; : } 5 } Sa 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 ae ee 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 8a 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. MAD i tga! Wee a2 ot Mand Cad te ee 4a ~ a © SSRs RR Lae PC me oe old ARN Na ea ales a i errnngetady taba Ie ded? te 9a 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.). ae a oe te ae ee en A to ee eh A TNS ech Sateen este Discs DK Sette cir nt Seg RAR nS drt ik mls serait Le. Sac IAAT lla 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 Ome A te Pile Doe SD settle No ee ee Tees : ; : 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). j « f , q : ‘ 4 % +. bette Ao tt OB 15a UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 74-1028 Accuracy in Media, Inc., Petitioner v. 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 4 4 3 ) 4 | : 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 designed by Congress for the control of CPB activities. 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. eS 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1558%3A1. Public record. Not legal advice.