Petition — Democratic National Committee v. Federal Communications Commission

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Text

Supreme Court, U. $.

PiELan

L 23 1976

IN THE

Supreme Court of the Anited

OCTOBER TERM, 1976

EL RODAK, oGLED |

No.

——8 6-10 1't

DEMOCRATIC NATIONAL COMMITTEE,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION,

UNITED STATES OF AMERICA,

Respondent,

CBS, INC., et al.,

Intervenors.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

ROBERT N. SMITH

Democratic National Committee

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

MARCUS COHN

MARTIN J. GAYNES

Of Counsel: Cohn and Marks

Sheldon S. Cohen 1920 L Street, N.W.

Cohen and Uretz Washington, D.C. 20035

1775 K Street, N.W. Attorneys for Petitioner,

Washington, D.C. Democratic National Committee

——<—<—<— ee

THE CASILLAS PRESS, INC.—1717 K Street, N W.—Washington, 0. C.~223-1220

(i)

INDEX

OPINIONS BELOW .

JURISDICTION .

QUESTION PRESENTED .

STATUTORY PROVISION INVOLVED .

STATEMENT OF THE FACTS .

A. Background

B. Argument .

AUTHORITIES CITED

Cases - Commission and Court:

CBS, Inc. (WBBM-TV ), 18 P&F RR 238, reconsidered

at length in Columbia Broadcasting System and

National Broadcasting Co., Interpretative Opinion

of June 15, 1959, 26 FCC 715 .

Use of Broadcast Facilities by Candidates for Public

Office, 35 Fed. Reg. 13048 ial

Columbia Broadcasting System, Inc.,

40 FCC 395 (1964) .

The Goodwill Station, Inc.,

40 FCC 362 (1962) .

National Broadcasting Company, Inc. and Columbia

Broadcasting System, Inc., 40 FCC 370 (1962) .

Page

(ii)

Use of Broadcast Facilities by Candidates

for Public Office, 35 Fed. Reg. 13048,

Q. & A. 27 at page 13056 .

In re Socialist Labor Party, 15 FCC2d 98 (1968),

affirmed per curiam sub nom. Taft Broadcasting

Co. v. Federal Communications Commission,

Case No. 22445, D.C. Cir. (unreported)

Statutes:

47 U.S.C. §315, 48 Stat. 1088

P.L. 87-274, § 1, 73 Stat. 557, amending

47 U.S.C. §315 .

Miscellaneous:

House Report No. 802, 86th Cong., Ist Sess., pg. 4

31st Annual Report by Federal Communications

Commission to Congress, 1965, at p. 86

“In Focus,” The Washington Star, April 5, 1976,

pp. A-1,A-10 . ~~ he

Page

7,15

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No.

DEMOCRATIC NATIONAL COMMITTEE,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION,

UNITED STATES OF AMERICA,

Respondent,

CBS, INC., et al.,

Intervenors.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Democratic National Committee, Petitioner, respect-

fully prays that this Honorable Court issue a writ of cer-

tiorari to the United States Court of Appeals for the Dis-

trict of Columbia Circuit in Case Numbers 75-1951 and

75-1944 seeking review of a judgment of that Court. The

Court of Appeals affirmed a decision of the Federal Com-

munications Commission, which reversed a statutory inter-

pretation of over ten years duration and which held that

henceforth debates between qualified political candidates

initiated by non-broadcast entities, and candidates’ press

conferences, will be exempt from the equal time require-

ments of Section 315 of the Communications Act of 1934,

as amended.! Petitioner respectfully suggests that the

panel’s affirmance was incorrect, that the correct holding

is contained in the dissenting opinion of Judge Wright, and

that this proceeding is of such transcending importance in

the interpretation and application of the equal time stat-

ute that it requires review by this Court. Indeed, so im-

portant is the question at issue to the forthcoming presi-

dential election campaign, that Petitioner respectfully

requests that the Court order that the matter be heard on

an expedited basis.

OPINIONS BELOW

The declaratory ruling of the Commission here at issue

was released September 30, 1975 (see Appendix 1). The

opinion of the United States Court of Appeals for the

District of Columbia Circuit affirming, by split vote (2-1),

the Commission’s Order was entered April 12, 1976 (see

Appendix 2) and the Court of Appeals Order denying re-

hearing was entered May 13, 1976 (see Appendix 3).

JURISDICTION

The jurisdiction of this Court is invos * under 28 U.S.C.

§ 1254(1).

QUESTION PRESENTED

Whether the Commission erred as a matter of law in

interpreting the 1959 amendments to the Communications

1 47 US.C. $315, 48 Stat. 1088.

Act of 1934? so as to exempt candidates’ press confer-

ences from the equal time provisions of Section 315 of

the Act.

STATUTORY PROVISION INVOLVED

The relevant provisions of Section 315(a) of the Com-

munications Act of 1934 are set forth in Appendix 4.

STATEMENT OF THE FACTS

This case involves what the majority panel of the Court

of Appeals recognized to be (App. 2, p. 25a) “perhaps the

most important iiterpretation of the equal time provisions

of the Communications Act of 1934 [citation omitted] which

has arisen in the past decade.”” The matter has a significant

background and history.

A. Background

The 1959 Amendments creating certain exemptions from

the “equal time” requirements of §315 cf the Communica-

tions Act of 1934 were enacted primarily as a result of

the so-called Lar Daly case,> in which the Commission

2 PL. 87-274, § 1, 73 Stat. 557, amending 47 US.C. $315.

3 CBS, Inc. (WBBM-TV), 18 P&F RR 238, reconsidered at length

in Columbia Broadcasting System, Inc. and National Broadcasting

Co., Interpretive Opinion of June 15, 1959, 26 FCC 715 (here-

inafter “Lar Daly”). In Lar Daly, Chicago television stations had,

in the course of their newscasts, shown film clips of the Democratic

and Republican candidates for nomination for the Office of Mayor

of Chicago. Lar Daly, perennial candidate and a candidate in both

primaries, demanded equal time. The Commission held that an ap-

pearance by a legally qualified candidate on a regularly scheduled

news program gave rise to a right of equal time by all legally quali-

fied opponents.

held that an appearance by a candidate on a news program,

no matter in what capacity and for what reason, gave rise

to a right of “equal time” by legally qualified opponents,

whether or not these opposing candidates were major or

minor, and regardless of whether the candidate could, by

any practical assessment, be elected. The Commission’s

decision stirred Congressional concern that it was unnec-

essarily narrow. In order to lessen the impact of Lar

Daly, Congress amended § 315 of the Act in 1959 so as

to exempt appearances by candidates on certain news and

news related programs from the equal time provisions of

the Act.4 These exemptions cover appearances by candi-

dates on: (a) bona fide newscasts, (b) bona fide news

interviews, (c) bona fide news documentaries (if the ap-

pearance of the candidate is incidental to the presenta-

tion of such coverage by the news documentary) and

(d) on-the-spot coverage of bona fide news events (includ-

ing but not limited to political conventions and activities

incidental thereto).°

4 As pointed out in the Huuse Report to the 1959 Amendments

(Report No. 802, 86th Cong., Ist Sess., pg. 4):

Thus, it is necessary, in the public interest, to achieve a

balance between substantial equality of opportunity of

political candidates on the one hand, and the need, on

the other hand, of broadcasters to be free from unrea-

sonable restraints in the exercise of their news judgment

insofar as the appearance of political candidates is con-

cerned.

> The legislative history of the 1959 Amendment is extensive

and was extensively discussed in the majority and minority opin-

ions in the Court of Appeals. See Appendix 2, infra.

A number of questions immediately arose as to the

proper meaning and scope of these exemptions and, as is

Commission practice, those questions were handled by in-

terpretive rulings on a case-by-case basis which later

were collated and published by the Commission in the

Federal Register as a guide and outline.®

Specifically, in 1964, the Columbia Broadcasting System

sought a declaratory ruling on the question whether a

presidential press conference, called during the period when

the President was a candidate for re-election, fell within

the 1959 exemptions either as a “bona fide news interview”

or as a “bona fide news event.”” CBS asserted that the 1959

Amendment was ambiguous on the point and sought Com-

mission interpretation.

The Commission, in a 1964 landmark decision,’ held that

presidential press conferences cannot qualify either under

the “bona fide news interview” exemption, or the “bona

fide news event” exemption. They were not “bona fide

news interviews” because the “content, format and parti-

cipants thereof” were not under the control of the licensee

but rather were controlled by the candidate; they were not

“bona fide news events” because interpreting a press con-

ference as a “bona fide news event” would, in effect, nul-

lify the equal time objectives of $315, and would deprive

the other three exemptions of any meaning. Specifically,

the Commission noted and expressed approval of two

35 Fed. Reg. 13048.

7 Letter of September 30, 1964 to Columbia Broadcasting Sys-

tem, Inc., 40 FCC 395 (1964) (hereinafter “Columbia Broadcast-

ing System’’).

earlier holdings,® explaining that (40 FCC at p. 398):

. if the sole test of the on-the-spot coverage

exemption is simply whether or not the station’s

decision to cover the event and to put it on a

broadcast program constitutes a bona fide news

judgment, there would be no meaning to the

other three exemptions in $ 315(a) since these,

too, all involve a bona fide news judgment by

the broadcaster. Carried out to its logical con-

clusion, this approach would also largely nullify

the objectives of § 315 ‘to give the public the

advantage of a full, complete, and exhaustive

discussion, on a fair opportunity basis, to all

legally qualified candidates and for the benefit

of the public at large.’ (footnote omitted).

In any campaign for political office which at-

tracts the interest of the electorate, the state-

ment and actions of a candidate for that office

could always be deemed ‘on-the-spot coverage

of bona fide news events.’ And this would be

so whether the statement and appearance is a

debate with an opposing candidate or is a sep-

arate speech and individual appearance of but

one candidate. It is clear, however, that the

1959 amendment which was enacted by Con-

gress reflected a resistance by the Congress to

8 Letter of October 19, 1962 to The Goodwill Station, Inc.,

40 FCC 362 (hereinafter “Goodwill”) and letter of October 26,

1962 to National Broadcasting Company, Inc. and Columbia Broad-

casting System, Inc., 40 FCC 370 (hereinafter “Wyckoff’) in which

the Commission held that live coverage of a debate between two

candidates would not be exempt, either as a “bona fide news event”

or a “bona fide news interview.”

any such broad scale delimitation of a broad-

caster’s obligation under § 315.

The Commission stressed what it perceived to be Con-

gressional intent to “limit carefully the exceptions from

§ 315,” (40 FCC at p. 398) citing the remarks of Chair-

man Harris, Chairman of the House Subcommittee on

Communications and Power of the Committee on Inter-

state and Foreign Commerce.

The Commission’s 1964 Ruling in Columbia Broadcast-

ing System was reported to Congress,? was published as

part of the Commission’s 1966 and 1970 “Primer” on

Commission interpretation of §315,!® was explicitly re-

affirmed in 1968 with court approval!! and became the

governing standard on the point for the next decade. Pe-

titioner is unaware of any instance during the period 1959

through September, 1975 in which the Commission devi-

ated from the thrust of its Columbia Broadcasting System

interpretation.

On July 8, 1975, President Ford formally announced

his intention to seek the Republican nomination for the

Office of President of the United States, thus rendering

him a legally qualified candidate for the nomination of

his party to the office of President within the meaning

of §315 and the Commission’s Rules and Regulations.

9 See 31st Annual Report by Federal Communications Commis-

sion to Congress, 1965, at p. 86.

10 See Use of Broadcast Facilities by Candidates for Public Office,

35 Fed. Reg. 13048, Q. & A. 27 at page 13056.

\l Im re Socialist Labor Party, 15 FCC2d 98 (1968), affirmed

per curiam sub nom. Taft Broadcasting Co. v. Federal Communi-

cations Commission, Case No. 22445, D.C. Cir. (unreported).

As a result of President Ford’s announcement, the Co-

lumbia Broadcasting System, on July 6, 1975, petitioned

the Commission for a declaratory ruling reversing the

Commission’s 1964 Columbia Broadcasting System ruling,

and sought-a holding that full, live coverage!? of presi-

dential press conferences would be exempt under the

1959 Amendment to $315, and that broadcasters who

“in their bona fide news judgment carry presidential press

conferences” will not incur “equal opportunities” obliga-

tions.

The CBS request was opposed by Petitioner, by the

Honorable Shirley Chisholm, and by the National Organi-

zation for Women.

On September 30, 1975. the Commission released its

Memorandum Opinion and Order here under review, revers-

ing its 1964 Columbia Broadcasting System holding with

respect to press conferences, and also its 1962 Wyckoff

and Goodwill decisions with respect to debates. (See 55

FCC2d 697, reprinted as Appendix | hereto.) The Com-

mission held (5-2) that henceforth debates initiated by

non-broadcast entities, and press conferences by all can-

didates (presidential or otherwise),'> would be exempt

12 It should be noted, and all parties here would agree, that

under the 1959 Amendment (specifically § 315(a(1)), broadcasters

are free to broadcast portions of press conferences as part of reg-

ularly scheduled newscasts without incurring “equal time” obliga-

tions, although they might face “fairness doctrine” demands.

13 In this respect, the Commission went further than CBS had

requested. CBS had only asked that presidential news conferences

be exempt because of their unique news value. CBS appeared to

recognize that a broader exemption was unwarranted and would

not be in accord with Congressional intent.

from $315 requirements if they were covered live, based

upon the good faith determination of licensees that they

were “bona fide news events” worthy of presentation, and

provided further that there was no evidence that the

broadcasters intentionally designed the programming to

aid the candidacy of any particular candidate. The Com-

mission treated the question of debate coverage and cov-

erage of presidential press conferences as stemming from

the same root, and as treatable by the same standards.

Recognizing that its opinion was a drastic change in

policy, the Commission explained that its 1962 Wyckoff

and Goodwill decisions had been based upon what it now

determined to be an incorrect reading of legislative history,

and that it was erroneous in 1962 in applying what it

characterized as an “incidental to” test to determine ex-

emptability. 4 The Commission believed, with respect to

debates, that the only relevant criteria in determining

whether a particular debate was exempt as an “‘on-the-

spot bona fide newscast,” was whether the coverage was

undertaken solely as a result of the licensee’s news judg-

ment that the event was worthy of coverage, 71d was not

ticular candidate.

Turning to the question of press conferences, the Com-

mission treated its prior 1964 Columbia Broadcasting Sys-

tem Ruling as relying solely upon the so-called “incidental

to” test enunciated in Wyckoff and Goodwill, and, having

14 the Commission in Wyckoff and Goodwill stated that debates

would not be considered “bona fide news events” under the mean-

ing of the 1959 Amendment because the appearance of the candi-

dates was the central aspect of the debates, while the exemption

was only meant to apply where the appearance of the candidate

on a news feature was “incidental to” the news feature.

overruled those two cases, treated the press conference

issue as foreclosed. The Commission held (App. 1, Par.

30, 55 FCC2d at 708):

. . . press conferences do not lose their exemp-

tion merely because the candidate’s appearance

is the central aspect of the news event. The

Commission allows reasonable latitude for exer-

cise of good faith news judgments by broadcast-

ers and networks by leaving the initial determi-

nation as to eligibility for 8315 exemption to

their reasonable and good faith judgment.

Thus, the Commission believed Congress intended the

licensee’s judgment and intent to be dispositive. If a

licensee believed, in good faith, that the press conference

was a bona fide news event, then full, live coverage of

the conference would be exempt from “equal time” re-

quirements, and would not lose its exemption merely be-

cause the appearance of the candidate was a central aspect

of the event itself. The Commission argued that its reversal

of its prior decisions “‘comports with the original legisla-

tive intent and serves the public interest by allowing

broadcasters to make a fuller and more effective contribu-

tion to an informed electorate’ (App. 1, Par. 27, 55

FCC2d at 706). The Commission’s only reference to the

rationale which underlay its 1964 decision (i.e. that recog-

nizing the exemption would swallow the rule) was that it

limited its present interpretation of the exemptions only

to debates and press conferences which, it believed, “pre-

served the essential nature of the exemption.” (App. 1,

par. 28(a), 55 FCC2d at 707).'§

15 Petitioner believes that the Commission’s recitation in its 1975

O:der of its 1964 decision misstates the essential thrust of the 1964

(continued)

Commissioners Hooks and Lee dissented from the Order

here under review, asserting that it misread Congressional

intent,"© would render the exemptions a nullity since the

Commission could not logically limit its rationale only to

debates and press conferences,'’ and that a change in pol-

icy of this magnitude should not be undertaken without

Congressional guidance.'® (App. 1, 55 FCC2d 712-716.)

A request for stay of the Order was denied (55 FCC2d

719), and on September 26, 1975, The Honorable Shirley

Chisholm and the National Organization for Women filed a

15 (continued)

Columbia Broadcasting System decision. The gist of the 1964 deci-

sion was not the application of the “incidental to” test; indeed, that

test was not mentioned. The 1964 rationale was simply that recog-

nition of CBS’s argument would, in effect, nullify and render mean-

ingless the 1959 Amendment in toto.

16 Commissioner Lee stated that the Order “created a loophole

to Congress’ intent that allows grossly unbalanced coverage of the

political activities of political opponents... .” (App. 1, 55 FCC2d

at 713).

17 Hooks Dissent (App. 1, 55 FCC2d at 715). Hooks stated:

If the gravamen is the transmittal of substance to the

populace, a statement delivered from a soap box in

Times Square — from a legal and policy aspect — is

equally deserving of a 315(a)(4) exemption.

18 Lee Dissent (App. 1, 55 FCC2d at 713). Lee stated (/bid.):

At a minimum, it should be made in the context of a

rulemaking proceeding where guidelines for broadcaster

judgment can be considered. The preferable procedure,

however, is to let Congress define the policy.

petition for review of the Commission’s Order. On Octo-

ber 8, 1975, Petitioner, the Democratic National Commit-

tee, filed a similar petition. The cases were consolidated

and ordered argued on an expedited briefing schedule.

On April 12, 1976, the Court of Appeals affirmed, by

divided opinion (Judges Tamm and Wilkey affirming, with

Judge Wright dissenting). Although the majority of the

panel candidly admitted inability to find a clear legisla-

tive history to support the Commission’s reversal of its

own long-standing precedent (App. 2, Slip Opinion, page

7), could find only that the legislative history provides

“inconclusive support”’ for the Commission’s interpreta-

tion (App. 2, Slip Opinion, pp. 4, 15, 18) and was admit-

tedly “unable to reach a definite conclusion from the

legislative history” on the critical issue of the case, i.e.,

whether broadcaster discretion was intended to be the

“sole criterion” of the bona fide nature of a news event

(Slip Opinion, p. 23), nevertheless, it relied on the judicial

maxim of giving deference to an administrative agency in

construing its organic statute, so long as it could find

some support for that interpretation in the legislative his-

tory of the statute.

The dissenting judge disagreed, asserting that (a) the

Commission’s action exceeded its Congressionally delegated

authority, (b) the Commission improperly substituted its

own judgments for decisions made by Congress, (c) the

Commission granted to broadcasters a power far in excess

of that which Congress intended to convey, and in fact

has granted to broadcasters a breadth of power which

they long requested from Congress, but which Congress

repeatedly denied to them, (d) the interpretation which

the Commission now gives to one provision of the exemp-

tions to Section 315 effectively obliterates and swallows

up the meaning of the other exemptions, an approach not

in line with traditional canons of statutory construction,

(e) the majority improperly slights legislative history sub-

sequent to the Commission’s original interpretation when,

under the circumstances of this case, Congressional acqui-

escence and the Commission’s original interpretation (with

Congressional knowledge of that interpretation) cannot so

easily be ignored, and (f) the circumstances in this case,

the importance of the question, and the Commission’s

failure to seek public comment represents a failure of

compliance with the provisions of the Administrative Pro-

cedure Act.

B. Argument

Petitioner respectfully submits that Judge Wright’s anal-

ysis was correct. The Commission’s attempt to rewrite

the equal time provision of Section 315 in a manner

which deprives the public and the candidates of the equal

treatment which has heretofore been the quintessential

element of Section 315, cannot be allowed to stand. Until

the Commission’s recent reinterpretation, Section 315 had

been a hallmark of equality. It operated with a known

precision to give all candidates precisely equal treatment.

It protected the public against any attempt by the broad-

caster to favor one candidate over another but, perhaps

more important, it treated all candidates equally, without

bias in favor of any.

The effect of the Commission’s recent reinterpretation

is simply that, as the dissenting Commissioners and dis-

senting Judge Wright recognized, the Commission’s Rule

establishes a bias in favor of incumbents, particularly in

the area of incumbent press conferences. Although the

Commission’s ruling has the appearance of objectivity be-

cause it exempts press conferences of all candidates,

whether incumbent or not, in fact it will operate in favor

of incumbents occupying the highest political positions. '?

It is far more likely that a press conference of an incumbent

will be covered than that of one of a number of his exist-

ing or potential opponents, and this is true even if (as will

usually be the case) the broadcaster who chooses to cover

the press conference as a “bona fide’ news event exempt

from the equal time rules, does so without any intent to

favor the candidate. Making the test of exemption mere-

ly the asserted good faith of the broadcaster may protect

the public against malevolent broadcasters, but it effective

ly destroys the concept of equality among candidates

which has heretofore been the distinctive contribution of

Section 315. The Commission’s interpretation has literally

stood Section 315 on its head, converting a precise restric-

tion on broadcasters with respect to their treatment of

political candidates, into a grant of power to control ac-

cess far in excess of anything warranted in the entire

legislative history of Section 315.

19 Indeed, it has already done so. See “In Focus,” The Wash-

ington Star, April 5, 1976, pp. A-1, A-10:

“Reagan has already felt the sting of the FCC exemp-

tion. One week before the first primary in New Hamp-

shire, the President called a press conference — osten-

sibly to talk about ovethauling the intelligence community.

Ford then proceeded to use a large segment of the

live broadcast time to attack his GOP opponent on issues

ranging from Social Security to income and tax disclosure.

He slid the campaign digs into his answers to questions

from reporters, even when they had little relationship to

the specific question asked.

The prime-time coverage didn’t cost Ford a penny.

The networks, now under no obligation to make equal

time available to Reagan, naturally didn’t offer him any

opportunity for rebuttal. One week after the President’s

press conference, Reagan narrowly lost the New Hamp-

shire primary — a contest he had been expected to win.”

Perhaps the most curious aspect of the Commission’s

decision is that it purported to base its result on Con-

gressional intent, yet it completely ignored legislative his-

tory subsequent to the adoption of the amendment, his-

tory which argues persuasively that the Commission’s orig-

inal interpretation denying press conferences exemption

was correct. The Commission’s 1964 Columbia Broad-

casting holding denying press conference exemption was

well-known to Congress; it was presented to Congress as

part of the Commission’s yearly report; it was reaffirmed

by the Commission in the Socialist Labor Party case in

1968,” and was affirmed without opinion by the same

Court of Appeals which has now affirmed a precisely op-

posite result. Congress has since 1963 revised Section 315

in a number of particulars, yet at no point did it indicate

its belief that the Commission had erroneously interpreted

Congressional intent in the Columbia Broadcasting and

Socialist Labor Party cases.2" This long-term Congress-

ional acquiescence is, under the familiar doctrine of the

“Reinactment Rule,” persuasive evidence that the Com-

mission’s original, rather than its subsequent interpreta-

tion is the correct one.

The majority’s lack of enthusiasm for its affirmance

is evidenced in the concluding paragraph of its opinion

where it points out that (App. 2, Slip Opinion, p. 37):

20 In re Socialist Labor Party, 15 FCC2d 98 (1968), affirmed

per curiam sub nom. Taft Broadcasting Co. v. Federal Communi-

cations Commission, Case No. 22445, D.C. Cir. (unreported).

21 Indeed, after the Commission’s reinterpretation, Senator Pas-

tore took pains to point out that the Commission’s reinterpreta-

tion was precisely opposite to Congressional intent.

. we take comfort in the realization that Con-

gress may correct the Commission if it has mis-

interpreted Congressional intent or overstepped the

bounds of its discretion.

Quite true. But it is extremely unlikely that Congress will

be able to act in time to affect the 1976 Presidential elec-

tion campaign wherein the “‘press conference” exemption

will be felt most strongly. Indeed, unless this Court acts

expeditiously to hear and decide the instant matter, the

harm done by the Commission to the equal time docu-

ment cannot be avoided in the 1976 Presidential campaign.

Because Petitioner feels that the Commission’s judgment

was clearly wrong, and because the question is of such

pressing and immediate importance to the election campaign,

Petitioner respectfully requests that the Court hear and de-

cide the case as soon as possible.

Respectfully submitted

ROBERT N. SMITH

Democratic National Committee

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

202—797-5900

MARCUS COHN

MARTIN J. GAYNES

Cohn and Marks

1920 L Street, N.W.

Washington, D.C. 20036

202— 293-3860

Attorneys for Petitioner,

Of Counsel: Democratic National Committee

Sheldon S. Cohen

Cohen and Uretz

1775 K Street, N.W.

Washington, D.C.

la 697

APPENDIX 1

OPINION OF THE FEDERAL COMMUNICATIONS

COMMISSION FCC 75-1090

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

Wasuincton, D.C. 20554

In the Matter of

PETITIONS oF THE ASPEN INSTITUTE ProGRAM

on CosmrunIcaTIONS AND Socrety anv CBS,

Ixc., For Revision on CLARIFICATION OF

Commission Rvuitincs cnver Section 315

(a) (2) anv 315(a) (4)

Declaratory Order

Memoranpum Opinion AND OrpER

(Adopted September 25, 1975; Released September 30, 1975)

By tne Commission : Coouissioners Lee snp Hooks pISSENTING AND

ISSUING STATEMENTS ; COMMISSIONER QUELLO ISSUING A STATEMENT

IN WHICH CoMMISSIONER RosBinson sorns; Commissioners WaAsH-

BURN AND RoBIN3ON ISSUING SEPARATE STATEMENTS.

_ 1. The Commission is in receipt of petitions filed by Mr. Douglass

Cater, Director of the Aspen Institute Program on Communications

and Society (Aspen), received April 22, 1975, and by CBS, Ine.

(CBS), received July 16, 1975. Both petitions raise questions concern-

ing the applications of the provisions of Section 315 of the Communi-

cations Act.

2. Aspen seeks revision or clarification of the Commission’s policies

concerning the applicability of the 1959 Amendments to Section 315

to certain joint appearances of political candidates. It is urged, that

the two revisions will enable broadcasters to “more effectively and

fully . . . inform the American people on important political races

and issues” and to “make the Bicentennial a model political broadcast

year.

3. The two revisions sought by the Institute are:

(1) The Commission should give the Section 315(a) (4) exemp-

tion for on-the-spot coverage of bona fide news events its proper

broad remedial construction, and should thus overrule the VBC

(Wyekog ) and Goodwill Station decisions; * and

(2) The Commission should clarify its position on Section 315

(a) (2)—the exemption for bona fide news interview programs—

in light of the Chisholm case.’

These are crucial, in Aspen’s view, because the Commission, in its

interpretive a has not given full scope to the Congressional pur-

pose in enacting the 1959 Amendments to Section 515, and its rulings

——

1The Goodwill Station, Inc., 40 FCC 362 (1962); National Broadcasting Co., 40 FCC

370 538). i

2 Hon. Sam Yorty and Hon. Shirley Chisholm, 35 FCC 2d S72, remanded and order for

geen et granted, No. 72-1505, D.C, Circuit, June 2, 1972, om remand, 35 FCC 2d

‘ tam).

55 F.C.C, 2d

698 2a

are founded upon mistaken assumptions and interpretations of law,

— must be acknowledged and corrected as a matter of law and

olicy.

. 4, The Institute seeks these revisions in the context of Docket No.

12269, which addressed political broadcasting issues or, in the alterna-

tive, in a new policy statement or declaratory ruling.

5. Because the proposed revisions concern a broader set of issues

than those discussed in the Fairness Report, 48 FCC 2d 1 (1974), and

in the First Report-Handling of Political Broadcast, 36 FCC 2d 40

(1972), we believe that these broader issues showid not be decided

without further consideration in a more expansive proceeding.’ How-

ever, the first issue raised by the petition as to the legal misinterpreta-

tion which underlies our 1962 decisions with respect to Section 315 (a)

(4), can be dealt with at this time in a declaratory ruling.‘

6. CBS requests a declaratory ruling that Presidential press confer-

ences are exempt from the “equal opportunities” provision of Section

315 of the Communications Act. CBS contends that the live broadcast

of such news conferences constitutes (1) “en-the-spot coverage of bona

fide news events,” within the meaning of Section 315(a) (4) of the

Act, and (2) “a bona fide news interview.” within the meaning of

Section 315(a) (2) of the Act. Petitioner urges that we re-examine our

decision in Columbia Broadcasting System, Jnc., 40 FCC 395 (1964)

(hereinafter referred to as CBS).°

7. Section 315. as it was originally worded. established a principle

of absolute equality for competing political candidates in the “use”

of broadcast facilitves. In the 1959 “Lar Daly” case, the Commission

interpreted the statute to mean that the equal time rule applied even

to the appearance of a candidate on a regularly scheduled newscast.

Columbia Broadcasting System, 18 RR 238, reconsideration denied, 18

RR 701 (1959). Daly, a perennial candidate in both the Republican

and Democratic mayoralty primaries in Chicago, had complained to

the Commission that several stations presented newsclips showing the

major candidates in the two primaries but refused to afford him equal

time. The Commission ruled that the presentation of these film clips

were “uses” within the meaning of the statute, and that consequently

Daly was entitled to equal time. The Commission’s position on this

matter created a national furor. and it was feared that this strict

application of the equal opportunities provision “would tend to drv

up meaningful radio and television coverage of political campaigns.”

Sen. Rep. No. 562. 86th cong. Ist Sess. 10 (1959).

8. This concern led Congress to a realization that the concept of abso-

lute equality among competing political candidates would have to give

way, te some extent, to two other “worthy and desirable” objectives:

First, the right of the public to be informed through broadcasts of political

events; and Second, the discretion of the broadcaster to be selective with respect

to the broadcasting of such events.

* We expect to reconsider the issues raised in our Chisholm ruling, supra, among other

political broadcast ouestions. at that time.

* Parties who wish to challenge this Declaratory Ruling on apnea) will have an opper-

tnnitr to do so well in advance of the 1976 elections. Feliz v. Westinghouse Radio, 186

F. 241 (3rd Cir. 1950). cert. denied, 241 U.S. 909 (1951).

_* Informal comments have been filed in onnosition to this reouest br the Democratic

National Committee, which urges us to reaffirm the validitr of the CRS decision. See

paracrapb 17. infra_ An additional request for the same relief asked for by Aspen was filed

by Henry Geller on September 1S, 1975.

55 F.C.C. 2d

3a 699

Hearings on Political Broadcasts-Equal Time Before the Subcom-

mittee on Communications and Power of the House Committee on

Interstate and Foreign Commerce, 86th Cong., 1st Sess. 2 (1959)

(comments of Chairman Harris).

9. In order to attain these worthy objectives. Congress adopted the

1959 amendments to the Communications Act. These amendments

provided that an appearance by a candidate on any one of four types

of news programs chould not be deemed to be a “use” of the station

by that candidate. The four categories of exempt programs are as

follows:

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is inci-

dental to the presentation of the subject or subjects covered by the news docu-

mentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited

to political conventions and activities incidental thereto).

The Congress also provided that the Commission should have broad

discretion in interpreting and implementing the new policy. See 47

U.S.C. § 315(c). Indeed, in the words of the Senate Report:

It is difficult to define with precision what is a newscast, news interview, news

documentary, or on-the-spot coverage of news event. .. . That is why the com-

mittee in adupting the language of the proposed legislation carefully gave the

Federal Communications Commission full flexibility and complete discretion to

examine the facts in each complaint which may be filed with the Commission. .. .

In this way the Commission will be able to determine on the facts submitted in

each case whether a newscast, news interview, news documentary, [or] on-the-

spot coverage of news event... is bona fide or a “use” of the facilities requiring

equal opportunity.

Sen. Rep. No. 562, 86th Cong., 1st Sess. 12 (1959).

10. In The Goodwill Station, Inc., radio station WJR broadcast a

debate sponsored by the Economic Club of Detroit between two major

candidates for Governor of Michigan, then-Gov. John B. Swainson

and Republican challenger George Romney. The two participants

were invited by the Club to debate issues following a dinner meeting.

Neither had any part in establishing the format for the debate. The

candidates appeared as invited, debated, and following the debate

answered questions posed by Economic Club members. Each candidate

had an opportunity to respond to an equal number of questions. Sta-

tion WJR merely covered “live,” the debate and question and answer

period. It exercised no control whatsoever over the program content.

The Commission ruled that this was not a “bona fide news event” under

Section 315(a) (4), a ruling which had the effect of affording equal

time to the candidate of the Socialist Labor Party, a party which in

the previous election received only 1,479 votes out of a state-wide total

of 3.255.991. The Commission’s construction of 315(a)(4) excluded

debates from that exemption. Indeed, it concluded that only events

“incidental to” the presentation of a bona fide news event (e.g., where

a Congressman seeking re-election pens in connection with a rib-

bon cutting ceremony for a new highway or bridge) or some, but not

all, activities incidental to the presentation of a political convention

might be exempt. The Comr.ission based its conclusion on House Re-

port No. 802, 86th Cong. Ist Sess., August 6, 1959. It took the position

55 F.C.C, 2d

700 4a

that the deletion of the term “debate” from the House version of the

bill. as well as the evidence of Congressional action in 1960, which per-

mitted the Great Debates, which it assumed to have been outside the

1959 Amendment’s exemptions from Section 315, clearly indicated a

legislative intent that debates were not exempt formats. Further, it

said that the 315(a) (4) exemption for “on-the-spot coverage of bona

fide news events”, if applied to debates, would result in the exemption

swallowing the rule.

11. National Broadcasting Co., supra, involved a debate between

Governor Brown of California and Richard Nixon before the annual

convention of the United Press International which NBC covered

“live.” The debate was arranged by UPI, and NBC had nothing to do

with the arrangements.*® Indeed, NBC was not invited to cover the

debate until after the arrangements had been completed. However, it

decided to cover the event, as did all the major newspapers in Cali-

fornia, based upon its assessment that the event was singularly news-

worthy. The Commission held that equal time must be afforded to the

Prohibition Party’s candidate for Governor, thereby virtually elim-

inating the possibility that such debates would receive further broad-

cast coverage. In elaborating on its Goodwill Station opinion, the

Commission stated that merely because an event might be considered

newsworthy by the broadcaster did not make the event “bona fide” for

purposes of the exemption. The Commission said :

Where the appearance of a candidate is designed by him to serve his own

political advantage and such appearance is ultimately the subject of a broadcast

program encompassing only his entire appearance, such program cannot be con-

sidered to be on-the-spot coverage of a bona fide news event simply because the

broadcaster deems that the candidate's appearance (or speech) will be of interest

to the general public and, therefore newsworthy. For as Chairman Harris stated

in discussing the conference report on the House floor, an “appearance of a can-

didate in the on-the-spot coverage of news events is not to be exempt from the

equal time requirements unless the program covers bona fide events.” And no

assertion has been made by either CBS or NBC that this program encompassed

any aspect of the UPI convention other than the joint appearance of Governor

Brown and Mr. Nixon.

The Commission, in conclusion, repeated that it did not question the

broadcaster’s news judgment but only the contention that it should

consider only the broadcaster’s news judgment in the context of the

legislative guidelines for the 315(a) (4) exemption.

12. In CBS, we held that press conferences of the President, or a

non-incumbent candidate for election to the presidency, would be con-

sidered non-exempt “uses” within the meaning of Section 315. In that

decision we relied on the language of the Conference Report accom-

panying the bill containing the 1959 Amendments to Section 315 which

stated that in order to qualify for exemption as “bona fide news inter-

view” within the meaning of Section 315(a) (2), a broadcast must

meet each of the following criteria:

(1) The broadcast must be regularly scheduled.

(2) The selection of the content, format, and participants of

the broadcast must be under the exclusive control of the licensee

or network.

* Neither of these cases involved a debate or joint appearance in a studio.

35 F.C.C. 2d

Sa 701

(3) Broadcaster decisions as to format, content, and partici-

pants must have been made in the exercise of bona fide news judg-

ment and not for the political advantage of any candidate.

13. In addition, we held that the broadcast of such press conferences

failed to qualify for exemption as “on-the-spot coverage of bona fide

news events,” within the meaning of Section 315(a) (4). This conclu-

sion rested on our decisions in Goodwill Station and Wyckoff, supra.

We also stated that the mere fact that an event might be considered

newsworthy by the broadcaster did not, per se, bring the event within

the Section 315(a) (4) exemption, and that we were not questioning

the networks’ news judgment but only the contention that the Commis-

sion should consider only such news judgment in determining whether

a broadcast was exempt under Section 315(a) (4).

14. In support of its contention that live broadcast of Presidential

press conferences constitutes “on-the-spot coverage of bona fide news

events,” within the meaning of Section 315(a) (4), CBS argues that a

reasonable decision by a broadcaster that a Presidential press con-

ference is sufficiently newsworthy to merit on-the-spot live broadcast

coverage should be determinative of whether the broadcast is exempt

under Section 315(a) (4).

15. CBS stresses the unique status of the Presidency and the in-

herent newsworthiness of Presidential communications with the pub-

lic. Thus, it contends, a distinction must be drawn between those

Presidential! press conferences called by a President-candidate in fur-

therance of his duty as Chief Executive to keep the people informed

on important national and international issues, and purely political

press conferences.’ The network claims that, under the CBS decision,

no such distinction is drawn and, hence, any press conference now

called by President Ford—political or non-political—will give rise to

“equal opportunity” rights in opposing candidates and will, therefore,

be effectively barred from live broadcast coverage by licensees.

16. To support its assertion that a Presidential press conference con-

stitutes a “bona fide news interview,” within the meaning of Section

315(a) (2), CBS submits that while the regularity of broadcast of a

news interview program and its control by the licensee are relevant

considerations in determining whether or not such an interview 1s ex-

empt from the “equal opportunities” provision of Section 315, the Com-

mission’s perspective in evaluating these considerations has been too

narrow. Thus, CBS submits that in our decision in CBS, supra,

the Commission applied an overly strict and mechanistic definition of

the term “regularly scheduled.” In its view, this term is most reason-

ably construed as meaning “recurrent in the normal and usual course

of events,” rather than as “recurrent at fixed and uniform time inter-

vals.” See CBS, supra. 40 FCC at 404 (dissent of Commissioner

Loevinger). Presidential press conferences are “regularly scheduled,”

since they have been held over the course of many years and are held

on @ periodic basis. With respect to the element of licensee control, it

is claimed that Congress’s primary concern with control of news inter-

view programs was that such control be outside the hands of a can-

didate ; it takes the view that Congress did not intend that such control

TIn this respect, CBS relies heavily on the 1964 dissenting opinions of Commissioners

Ford and Loevinger and the separate opinion of Chairnian Hyde (which was in substance

a dissent). 55 FCC. 24

702 6a

remain exclusively with the broadcaster. Finally, CBS contends that

the principle concern of Congress with respect to “bona fide news in-

terview” programs was the prospect of rigging by some local broad-

casters to promote the candidacies of local candidates, and that this

concern is obviated in the case of nationwide broadcast of Presidential

= conferences. Thus, although a President may make a statement

efore opening the session to questions, the crux of the press confer-

ence is in the questions and answers themselves, and such questions are

out of the hands of the President.

17. The Democratic National Committee (DNC), in its informal

womments, concedes that “past decisions should be re-examined in light

of new facts, new laws, or new interpretations of past laws and facts.”

However, DNC contends that the reversal of the Commission's 1964

CBS decision would, in effect, “nullify the objectives of Section 315

and render it meaningless as it applies to Presidential elections.” DNC

further contends that the purpose of the 1959 Amendments was “to

provide enough leeway to broadcasters to disseminate the news without

incurring equal time obligations,” and that “CBS is free to broadcast

portions of the Presidential press conference on bona fide news shows

or bona fide news documentaries.” In its view, an exemption for Presi-

dential press conferences from Sections 315 would “deprive opposing

candidates of equal eT and would cause “irreparable dam-

age... to its 1975 Presidential nominee” and all future candidates

“opposing incumbent presidents. DNC urges the Commission to retain

the “incidental to” test which it has applied since 1962 in interpret-

ing Section 315(a) (4). It contends that if the Commission abandons

this test, it is left to determine only whether a licensee’s judgment

that a program is newsworthy is reasonable, and that the FCC would

be left with neither a rational test for determining either the bona

fides of a broadcast news event, nor a test with the precision of the

equal time rule.

18. DNC also opposes the CBS contention that “regularly sched-

uled news interviews” refers to “recurrent in the normal and usual

course of events, rather than at fixed and uniform time intervals.”

Tn its view, that interpretation would be administratively unwork-

able. and could make a farce out of the well defined news interview

exemption. It also contends that the legislative history does not

support this CBS assertion. Furthermore, it believes that Presidential

press conferences, called at the whim of the President, are subject

to abuse. It also believes that many of the significant factors asso-

ciated with Presidential press conferences are under the control of

the President and, thus, the problem of abuse would be heightened

by exemption of such programs in direct disregard of the “control”

requirement as set forth in the legislative history.

19. DNC believes that the Commission should take into considera-

tion: (1) that if Section 315 is to continue to work effectively, it must

continue to work with the “automatic and mathematical” precision

it has exhibited in the past: (2) the equal time requirement posits a

particular right in candidates to ensure that they receive an equal

opportunity of access to the airways in order to discuss campaign

issues. and such rights should not be left to the whim of a station or

network; (3) the impact of such a ruling would inhibit the chances

55 F.C.C. 2d

Ta 703

of any candidate’s bid to unseat an incumbent President running for

re-election; (4) that the President’s unique status as a newsworthy

individual should not be determinative in this case; (5) such an inter--

pretation would be inconsistent with the interpretations of the First

(0 in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

1969).

0. The Media Access Project (MAP) has filed a lengthy informal:

pleading on behalf of the National Organization of Women (NOW):

ard Congresswoman Shirley Chisholm. MAP argues that the Corir

mission cannot property issue declaratory rulings in this matter. but

may only proceed by way of a rulemaking proceeding. Aside front

the procedural arguments, MAP essentially alleges that the potential

for abuse of the exemptions in Section 315 requires the Commission

to prohibit any use of the exemptions for on-the-spot coverage of

bona fide news events. Additionally, it is argued that if a candidate

intends to gain an advantage by his or her appearance. coverage of

the appearance may not be exempt, and that Jebates may never he

exempted because Congress did not create a specific exemption for

them. Moreover, MAP argues that the Commission could. as a matter

of administrative discretion, use a test which was rejected by Congress

in its determination—the “incidental to” test applied in the 1962

decisions.

21. For the reasons discussed below, we hereby overrule our earlier

decisions in The Goodwill Station, Inc., Supra, and National Broad-

casting Co., supra, and will in the future interpret $ 315(a) (4). so

as to exempt from the equal time requirements of Section 315 debates

between candidates as “on-the-spot coverage of bona fide news events”

in situations presenting the same factual contexts in Goodiill Station.

and Wyckoff. At the same time we overrule that part of the 1964

CBS decision which relies on Goodwill Station and Wyckoff. for

reasons also discussed below. Thus the press conferences of the Presi-

dent and all other candidates for political office broadcast live and

in their entirety, qualify for exemption under Section 315(a) (4).”

DISCUSSION

Debates: The Aspen Petition

22. As Aspen po.nts ont, and after thorongh review we are com-

pelled to agree, the Commission’s decisions in Goodwill Station and

Wyckoff, are based on what now appears to be an incorrect reading of

the legislative history of the newscast exemptions and subsequent re-

lated Congressional action. Our conclusion that the debates were not

exempt rested on language in the House Report of August 6, 1959.

which indicated that in order for on-the-spot coverage to be exempt

the appearance of the candidates would have to be “incidental to” the

coverage of a separate news event. The Goodwill Station, Inc., 40 FCC

at 564. It was obvious. of course, that in a debate between two candi-

dates the q~y of neither could be deemed to be incidental to the

news event. Indeed, the appearance of the candidates would naturally

be the central focus of the event. The problem with this reasoning is

* Because Aspen and CBS both requested declaratory rulings by the Commission, ther

are the oniy formal parties before the Commission, DNC and MAP have, therefore, filed

informal comments in opposition to the views of Aspen and CBS. The Commission has fully

considered the arguments advanced in all those comments in reaching its determination.

55 F.C.C, 2d

704 8a

that it was based on a report of a bill which was not enacted into law.

The bill discussed in the August 6 House Report d’1 indeed require

that appearances by candidates must be “incidental to” another

event—and this requirement was explicitly set forth in the bill. The

bill as enacted, however, did not limit the exemption to appearances of

candidates which were “incidental to” other news. During the floor de-

bate in the House, Rep. Bennett of Michigan warned the House that

the “incidental to” language must be deleted or the bill would not

work, citing the text of the bill and the language of the House Com-

mittee report, 105 Cong. Rec. 16241. That language was stricken in

conterence, and in floor discussion of the conference report Bennett

again took the floor to comment on the deletion of the provision: “I

am glad to see that the conference substitute omits this language be-

cause the majority of conferees felt as I do, that this requirement

would lead to even greater confusion than we have at present.” 105

Cong. Rec. 17778. The conference bill was then adopted.® The rejection

by a legislature of a specific provision contained in a reported bill mili-

tates against an interpretation of the resulting statute which, in effect,

includes that provision. See Carey v. Donohue, 240 U.S. 430 (1916).

23. Thus, the Commission’s conclusion, in 7he Goodwill Station Inc.,

that a program which might otherwise be exempt should lose its ex-

emption because the appearance of a candidate 1s a central aspect of

the presentation, is not supported by the legislative history.*° News-

* Rep. Moss, who drafted the “incidental to” sanwenee. dissented from the conference

report and during floor debate circulated a letter detailing his reasons. Chairman Harris,

the floor manacer, responded as follows:

The letter alleges that this change replaces “the objective requirement of the House's

bill that the appearance be incidental to the reporting of news with the su):Jective test

that the newscast or news interview be bona fide.”’ It states that the co: «:ence sub-

stitute provides for “a purely subjective text (sic) almost impossible of )...of without

either the showing of the crossest kind of favoritism or of a long pattern of prefer-

ential treatment by the broadcaster”... .

He replied to this allegation :

‘ The <x 2 be applicd under the conference substitute is by no meane too subjective

0 perm '

Continuing, he stated the sentence quoted by the Commission in the NBC opinion:

... and appearance of a candidate tn on-the-spot coverage of news events is not to be

exempt from the equal time requirement unless the program covers bona fide news

events.

He continued, in a passage not quoted br the Commission:

This requirement regarding the bona fide nature of the newscast, news interview

or news events, was not included without thoughtful consideration by the conference

committee, It sets up a test which leaves reasonable latitude for the exercise of good

faith news judgment on the per of broadcasters and networks. However, it is not

intended that the exemption shall apply where such judgment is not exercised in cood

faith. For example, to state a rather extreme case, the exemption from section 315(a)

would not apply where the program, although it may be contrived to have the appear-

ance or sive the impression of being a newscast. news interview, or on-the-spot cover-

ace of news events. is not presented as such by the broadcaster, but in reality has for

its purpose the promotion of the political fortunes of the candidate making an ap-

pearance thereon. 105 Cong. Rec. 17782.

Thus, Chairman Harr's equated the test as to bona fide in 215/a)(4) to those for “news-

casts and news interviews.” This statement conflicts with the Commission's 1962 ruling

which. as described herein, mistakenly interprets the exemption as if the “incidental to”

lancuace had been retained.

1° The Commission appears to have been confused by the legislative bistory in ita 1962

interpretation of the test as to what constituted a bona fide news event under Section

815(a)(4). This confusion resulted in nart from the lancnage of the Conference Report,

Pp. 4. The Report discussed the test for “bona fide’ news interview. specifving that in addi-

tion to certain format requirements, “the determination must have heen made by the sta-

tion or network, as the care may be, in the exercise of its ‘bona fide’ news jndgment and

not for the political advantage of a candidate for public office.” However, in epec'fying the

ae fide” test as applied to on-the-spot coverage of bona fide news events, the Report

said:

In the Conference snbstitute. in referring to the on-the-spot coverage of news

events. the expression “bona fide news events” instead of “rews events” is used to

emphasize the intention to limit the exemptions from the eaual time reonirement to

cases where the appearance of the candidate ia not desioned to serve the political

advantage of that candidate.

The lack of parallel mention of the broadcaster's bona fide news judgment in that nara-

graph may well have led the Commission, in 1962, to conclude that when Chairman Harris

(Continued)

55 F.C.C. 22a

9a 705

casts, news interviews, news documentaries and “on-the-spot coverage”

of news events were exempted in order to foster public consideration

of major candidates while assuring minor candidates access to reason-

able opportunities for air time.*? The Commission’s mandate was to

devise standards to insure that these guidelines were enforced. There

is no indication that Congress intended the Commission to take an

unduly restrictive approach which would discourage news coverage

of political activities of candidates. Rather, Congress intended that

the Commission would determine whether the broadcaster had in such

cases made reasonable news judgments as to the newsworthiness of

certain events and of individual candidacies and had afforded major

candidates broadcast coverage. Conference Report, H. Rep. No. 1069,

86th Cong. 1st Sess. In some circumstances this might logically entail

exclusion of certain programs from within an exen.ption, such as pro-

grams designed for the specific advantage of a candidate, or those

which were patently not »ona fide news. It would not in our view

extend to a restrictive oa as to certain categories of events

simply because the candidate’s appearance is the central aspect of

the event. Accordingly, a program which might otherwise be exempt

does not lose its exempt status because the appearance of a candidate

is a central aspect of the presentation, and not incidental to another

news event.

24. Jn the Goodwill Station, Jnc., the Commission concluded that,

since there was no special exemption for debates, these events could

not attain exempt status merely by being presented under one of the

four exempt formats provided for in the 1959 amendments. This con-

clusion is unfounded. No appearance of a candidate (in a debate or

otherwise) has a special exemption independent of the 1959 provi-

sions, but such events may be properly covered, for example, under

the exemption provided for bona fide newscasts. During the House of

Representatives floor debate, Congressman Harris noted that a num-

ber of important program categories were not specifically exempted

from Section 315, but then he made the following observation:

On the other hand, and I want you to get this, . . . the elimination of these

categories by the committee was not intended to exclude any of these programs

if they can be properly considered to be newscasts or on-the-spot coverage of

news events.

105 Cong. Rec. 16229 (August 18, 1959). This view is consistent with

the legislative history as to the otler news exemptions as well.

25. The Commission, in 1962, stated that its restrictive interpreta-

tion of the exemptions (at least as it affected debates) was strength-

(Continued)

stated that in order to be exempt the program must cover “bona fide events,” he meant that

the broadcaster's news judgment was not to be considered. However, Congress recognized

that the appearance of a candidate at any event would, objectively, serve his political inter-

est. Furthermore. the language of the exemption, “including but not limited to political con-

ventions and activities incidental thereto” indicates that the exemption does not limit

broadcasters only to the coverage of non-partisan or non political events. Thus, it is hard

to see how the appearance of a candidate at a political convention ts not intended to serve

the candidate’s advantage. Therefore, we believe that the question of what ts a “bona fide

event” cannot be answered by looking only at the event itse!f. because if that interpreta-

tion were to be given effect, no political event could be covered except the most innocuous

ribbon-cutting ceremony, Even then the broadcaster would he forced to inquire whether the

liticlan’s subjective motive for attending was his political advancement. The real ques-

fon is as to intent—and it is clear here that Congress was naturally focusing on the broad-

ster'’s role.

"7 Sen. Rep. No. 562, 86th Cone. Ist Sess.. at p. 19; 105 Cong. Ree. 14445 (1959) (re

marks of Sen. Pastore) : 106 Cong. Rec. 12424 (1990) (remarks of Senator Pastore). See

Lawrence M. C. Smith, 40 FCC 549 (1963) ; Dr. Benjamin Spock, 38 FCC 2d 516 (1972).

55 F.C.C. 2d

706 10a

ened by the fact that Congress enacted special legislation in 1960 to

exempt the Great Debates. We do not believe that Congress meant

that debates presented within an exempt format would somehow lose

their exemption. Indeed, the 1960 legislation had no special relevance

to the coverage of debates. The legislation was intended to apply to

any appearance by the ene peer candidates regardless of format;

and the measure was adopted prior to the time when the candidates

and the networks proposed the Great Debates. Senator Yarborough

offered an amendment which would have limited the exemption to

debates, but this amendment was withdrawn. See 106 Cong. Rec.

13423-13428 (June 27, 1960).

26. Why then was the 1960 legislation needed if debates could be

carried as on-the-spot coverage of a bona fide news event? It was

hoped that the exemptions would “lead to a fuller and more meaning-

ful news coverage of the actions and appearances of legally qualified

candidates”; but the Congress recognized that by 1960 not enough

time had elapsed “for a full evaluation of this amendment.” Sen. Rep.

No. 1539. 86th Cong., 2d Sess.. p. 2 (1960). As we have already mated,

the Congress fully expected the Commission to act to explain fully

the scope of the 1959 amendments. At the time of the adoption of the

1960 legislation, however, the Commission had done little to clarify

the meaning of the exemptions. The urgent necessity for Congres-

sional action. as stated by Senator Pastore in his remarks of June 27,

1960, was that:

(1) “Not enough time has elapsed to permit full evaluation [by the FCC] of

[the 1959] amendment; and (2) “As the 1966 presidential and vice-presidential

campaign approached, great concern had been expressed about the serious limita-

tions that were involved in the full application of section 315 to such candi-

dates.” 106 Cong. Rec. 18424 (daily ed.).

Thus. it was suggested by broadcasters and agreed to by Congress

that Section 315 would be suspended as to major Presidential and Vice

Presidential candidates for the 1960 elections, to insure that “adequate

free time would be offered voluntarily” by the networks. 105 Cong.

Rec. 13424 (June 27, 1960). Thus, reliance by the Commission on the

proposition that the 1960 Suspension assumed that a debate was not

an exempt format was, and is, misplaced.

27. Furthermore, we are convinced that as a matter of policy the

Commission’s reversal of these prior decisions comports with the

original legislative intent and serves the public interest by allowing

broadcasters to make a fuller and more effective contribution to an

informed electorate.? As Aspen points out in its petition, “[t]he con-

sequence of these [1962] rulings has been to greatly diminish the

efficacy of the on-the-spot news exemption, and thus the broadcaster's

coverage of political news events,” (Petition, p. 5) * rather than “to

% Although, our ruling is most directly necessitated by the canon which requires an

administrative agency to heed guidelines established by Congress, and to correct clear

lecal errors which were material to decisional results, we also agree with petitioner's arcu-

ment that post-1980 developments in the law which support First Amendment interests

of the public to view political news and to receive “wide-open, uninhibited and robust

debate.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. 390 (1969), New York Timea v.

Sullivan, 376 U.S. 254 (1964), Garrieon v. Loutr'ana, 379 U.S. 64 (1964), are consistent

with Congress's intent in enacting the 1959 Amendments.

13 Sen. Rep. No. 562, supra, at 10: “An informed public is indispensable for the continu-

ance of an alert and knowledgeable democratic society. The public should not be deprived

of the benefits that flow from this dynamic form of communications during the critical

times of a political campaign...”

55 F.C.C, 2d

lla 707

make it possible to cover the political news to the fullest degree . . .”

and “to give full and meaningful coverage to the significant events of

the day.” ** By departing from these prior opinions, we can aid the

broadcaster in rendering a most unique public service—bringing a

political debate “live into the homes of every interested voter.’

28. However, we must advert to the legal arguments raised by the

Commission in 1962 rulings as to the difficulties posed by loosening the

exemptions to Section 315.

(a) It has been argued that giving Section 315(a) (4) a broader

construction would render meaningless the other three exemptions

to Section 315. By applying our Declaratory Order here to the

circumstances covered by the two cases overruled,”* we believe we

have preserved the essential nature of the exemption. However, to

the extent appearances in debates would fall within another ex-

emption, e.g., newscast or news interview, quite obviously that

argument is vitated.

b) As to the argument that a broader construction would

render meaningless the 1960 suspension, S.J. Res. 207, P.L. 86-

677, that is of little relevance. As we have pointed out in some

detail, Congress acted in 1960 ** because it was uncertain how the

Commission would interpret the 1959 Amendments and in order

to facilitate the offer by the networks of free broadcast time to the

major Presidential and Vice-Presidential candidates. Further-

more, the 1960 exemption did not specify a debate format at all:

rather, it provided that free time could be offered by broadcasters

for the candidate’s use, without subjecting broadcasters to the

equal time requirements.

exemption would permit the broadcaster to ignore the equal time

requirement. Thus, it is said, the opportunity to characterize as

“newsworthy” any event covered live and on-the-spot would be

irresistible to a broadcaster bent upon aiding a particular candi-

date in a partisan, discriminatory fashion. This argument is

answered in part by the fact that we have limited our action on

the 315(a2)(4) exemption to the circumstances of Goodril/

Station, NBC and CBS. This limited holding does not offer the

opportunity for broadcaster abuse that already exists in the

“newscast” or “new interview” exemptions. Nor does the narrow

exemption reviewed here threaten to swallow the equal time rule.

Realistically, the likelihood of broadcaster abuse is remote in

coverage of more prominent political races (President, Senator,

Governor, ete.). While the opportunity for abuse may exist at the

less visible political oitice level (¢.g., councilman, school board.

district legislative races), we feel that the absence of abuse in the

ast 15 years of a broad newscast exemption fails to support the

oomsayers’ thesis—that this narrower exemption will be abused.

wee of Senator Pastore, 105 Cong. Rec. 14445 (1959) and 106 Cong. Rec. 13424

13 See paragraphs 10-11, supra.

We are aware that Congressional lectslation is propdésed which would exempt mator

Presidential and Vice Presidential candidates from the provisions of Section 315 altogether.

The Commission has previously proposed to limit the equal opportunities requirement to

major party candidates or candidates with “significant public support.” see First Report,

supra at 51-52 (para. 35). We do not contemplate that this Declaratory Order will obviate

the need for more sweeping action by Congress.

35 F.C.C. 2d

104-010—75———-2

708 12a

29. Most importantly, we believe that when Congress adopted the

1959 Amendments it squarely faced the risks of political favoritism

by broadcasters which might be created by the exemptions—and, on

balance, Congress preferred to make available to broadcasters the op-

portunity “to cover the political news to the fullest degree.” ** Today,

these risks are substantially lessened.'* Yet, the Commission’s failure

to accord the appearances in Goodwill and Wyckoff the exemption of

Section 315(a) (4) did not give adequate scope to the Congressional

action; rather, the Commission took a more cautious position which

would insure that the threat of abuse would never materialize. To do

so merely to preserve administrative convenience is not an appropriate

course on which we will continue.

Press Conferences: The CBS Petivion

30. The preceding discussion of the Section 315(a) (4) exemption

as it pertains to coverage of dcbates is also relevant to the question of

live coverage of a press conference. As we stated in paragraph 23,

supra:

... [A] program which might otherwise be exempt does not lose its exempt

status because the appearance of the candidate is a central aspect of the

presentation, and not incidental to another news event.

Under this test, press conferences do not lose their exemption merely

because the candidate’s mana is the central aspect of the news

event. The Commission allows reasonable latitude for exercise of good

faith news judgments by broadcasters and networks by leaving the

initial determination as to eligibility for Section 315 exemption to

their reasonable good faith judgment, See United Communit

Campaigns of America, 40 FCC 390, 391 (1964). Congress intende

that the Commission would determine whether the broadcaster had

made reasonable and good faith judgments as to the newsworthiness

of certain events onl’ of individual candidacies, and had afforded

major candidates broadcast coverage. See Conference Report, H. Rep.

No. 1069, 86th Cong. 1st Sess. CBS’s premise is that its judgment as to

the newsworthiness of such press conferences, and its consequent deci-

sion to afford such conferences live broadcast coverage, are necessarily

wholly determinative of whether such broadcasts are exempt under

Section 315(a) (4). However, newsworthiness is not the sole criterion

to be used in determining whether Section 315(a)(4) has been

properly invoked. A question whether the coverage of a press con-

ference was intended by the broadcaster to be for the specific

advantage of that candidate would be considered in terms of the

licensee’s good faith in deciding to cover the press conference. See 105

Cong. Rec. 17782 (remarks of Oren Harris).

31. With respect to CBS's contention that a Presidential press con-

ference constitutes a “bona fide news interview,” within the meaning

of Section 315(a)(2), we cannot agree with the claim that our

perspective in evaluating the criteria for exemption under that sub-

section has been too narrow. The Conference Report on the bill con-

17105 Cong. Rec. 14444 (remarks of Sen. Magnueron).

“ Aspen correctly notes that when Congress faced those risks. the fairness doctrine was

enforced through the renewal process. Thus, a misuse of an exemption could not be cor-

rected during the critical days of the political camnaign. See 105 Cong. Rec. 17782 (re

marks of Chairman Harris) (September 2. 1959). Since then, however, additional protec-

vton pes heen afforded candidates through prompt consideration of fairness and Section 315

complaints.

55 F.C.C, 2d

13a 709

taining the exemptions to Section — set forth the criteria for

exemption under subsection (a) (2) with clarity:

The intention of the committee of conference is that in order to be considered

“bona fide” a news interview must be a regularly scheduled program.

It is intended that in order for a news interview to be considered “bona fide”

the content and format thereof, and the participants, must be determined by the

licensee in the case of a news interview originating with the licensee of a station

and by the network in the case of a news interview originating with a network ;

und the determination must have been made by the station or network, as the

case may be, in the exercise of its “bona fide” news judgment and not for the

political advantage of the candidate for public oifice. H. Rept. No. 1069, 86th

Cong., 1st Sess. 4 (1959).

Moreover, Senator Pastore, Senate Manager of the bill, stated:

We have spelled out in the House Report itself precisely what we mean by

bona fide news interview. It is provided, specifically, tirst of all, that it shall be

a regularly scheduled program, Secondly, the content and format must be ex-

elusively under the jurisdiction of the broadcaster or of the network. 105

Cong. Rec. 17829 (September 3, 1959).

32. The legislative history makes it clear that “regu’ arly scheduled”

meant to Congress a program which a licensee or network initiates and

schedules for regular, recurrent broadcast, rather than a program

which covers an event (such as a press conference) which, although

possibly “recurrent in the normal and usual course of events,” is ini-

tiated by a candidate and takes place and is broadcast only at such

times and with such frequency as the candidate may specify. See 105

Cong. Rec. 16224-5 (August 18, 1959) (remarks of Representative

Brown of Ohio). The legislative history refers to such programs as

“Meet the Press”, “Face the Nation” and “College Press Conference”

as examples of the type of “regularly scheduled” news interview pro-

gram contemplated for exemption. See, e.g., 105 Cong. Rec. 16224-5

janes 18, 1959) (remarks of Representative Brown of Ohio) ; 105

ong. Rec. 17829 (September 3, 1959) (remarks of Senators Engle

and Pastore); id. at 17831 (remarks of Senator Scott). “Regularly

scheduled” programs were thus thought to be those scheduled by a

licensee or network for broadcast ... say every day at a certain time

or every week at a certain time .. .” 105 Cong. Rec, 17780 (September 2,

1959) (remarks of Representative Harris). The legislative history

does not support the view that the term “regularly scheduled” encom-

ponte broadcasts of press conferences called by a candidate solely at

iis discretion and at such times and with such regularity as only he

may specify. In light of the foregoing, we are alle to accept CBS's

suggestion that we construe the term “regularly scheduled” as meaning

“recurrent in the normal and usual course of events.”

33. As to the “control over content and format” aspect of the test for

exemption under Section 315(a) (2), the legislative history unequivo-

cally mandates that such control “. . . must be exclusively under the

jurisdiction of the broadcaster or of the network.” 105 Cong. Rec. 17829

(September 3, 1959) (remarks of Senator Pastore). Specifically, “...

the content and format... [of the news interview program] .. .,

and the participants, must be determined by the licensee in the case of

a news interview originating with the licensce of a station and by the

network in the case of a news interview originating with a network

....” H. Rept. No. 1069, 4. We are unwilling to impose on this plain

language the strained interpretation that CBS suggests, viz., that as

05 F.C.C, 2d

710 14a

long as the control over most of a news interview program is out of

the hands of a candidate the “control” criterion for exemption is

satisfied.

34. In view of the fact that the broadcasts of such conferences are not

“regularly scheduled,” within the Congressionally contemplated mean-

ing of that term, we reaffirm our view that the broadcast coverage of

Presidential — conferences is not exempt as a “bona fide news in-

terview,” within the meaning of Section 315(a) (2). We are not per-

suaded to alter this conclusion by the network’s claim that Congres-

sional concern with respect to news interview programs was primarily

directed at the danger of such programs being “rigged” by some broad-

caster at the local level to further the candidacy of a local candidate.

he fact that there was concern with regard to locally originated

broadcasts does not necessarily imply that Congress intended that a

more permissive standard for exemption under Section 315(a) (2) be

used in connection with nationwide broadcasts, as CBS seems to sug-

gest. Rather, the discussion of the danger of local broadcaster “rigging”

of news interview programs appears in the legislative history merely

as explanation for the need to include the words “bona fide” in the

formulation of the subsection (a) (2) exemption. See 105 Cong. Rec.

17778 (September 2, ones B remarks of Representative Harris) ; 105

Cong. Rec. 17831 (September 3, 1959) (remarks of Senator Scott).

35. CBS errs when it states that “other Republican candidates may

annouce their candidacies within seven days of the press conference

and demand “equal time.” (Petition, p. 2 n. 1). Candidates seeking

equal opportunities must have become legally qualified prior to the

“use” in order to properly obtain the right provided by the statute.

See, e.g., 47 C.F.R. $§ 73.120(e), 73.657 (e). Moreover, an early declara-

tion of candidacy is irrelevant to whether or not news coverage of

the candidate is exempt under Section 315. Although we recognize

that the equal opportunity requirement offers a disincentive to live

coverage of ray ay by candidates, particularly in such a sitina-

tion, we could not for that reason alone alter our prior rulings if the

legislative history of Congressional intent indicated otherwise.

36. DNC argues that the continued effectiveness of Section 215 de-

pends on its precise. indeed “mathematical” operation. Equal oppor-

tunity is required by law only after it is determined that a prior, non-

exempt “use” has been made on a broadcast. Congress clearly intended

that the Commission had ongoing authority to issue interpretive rul-

ings and across-the-board rules to effectuate Section 315 exemptions.

See H. Rep. No. 1069. 86th Cong., 1st Sess. 12, 13 age it Equal oppor-

tunity still is required when a “use” has been made. The rule will op-

erate as precisely after this decision as before. Indeed, it will operate

with greater clarity, and in accord with legislative intent. With re-

spect to DNC’s argument that Section 315 vested in candidates a right

to broadcast after a Section 315 “use”, we point out that Congress mod-

ified that right in 1959. At that time, it instructed the Commission

to implement this modification. We have determined that the Commis-

sion, in 1962, misinterpreted Congressional intent. the result of which

was an unsupported construction of the Section 315(a) (4) exemption.

In this decision, we have sought to remedy that error of law. The “an-

tomatic and mathematical” precision described by DNC, viz., an un-

55 F.C.C. 2d

15a 711

warranted narrow construction, was perhaps more convenient. to ad-

minister. However, strict limits on the exemption cannot be justified if

they undermine legislative intent.

37. DNC’s assertion that “irreparable harm”-will result to its 1976

candidate, or any candidate opposing an incumbent President, from

live broadcast coverage of a Presidential press conference is specula-

tive and conclusory. Free-wheeling, wide-open press conferences do

not necessarily yield the kind of favorable publicity for the holder

which DNC too easily assumes. Most of all, however, we believe that

the intent of Con was to pursue the “right of the public to be

informed through broadcasts of political events.” Supra, para. 8. The

fundamental concept which underscores this objective is that the con-

tinued vitality of a democratic society and its freedoms requires the

“widest ible dissemination of information,” Associated Press v.

United States, 326 U.S. 1, 20 (1945), and that the broadcasters’ role

is to insure “that the American public must not be left uninformed.”

Green v. FCC, 447 F. 2d 323, 329 (1973). We must always keep in

mind that “speech concerning public affairs is more than self-expres-

sion; it is the essence of self-government.” Garrison v. Louisiana. 379

U.S. 64, 74-75 (1964). We believe that the public’s interest in “uninhi-

bited, robust, wide-open” debate on public issues far outweighs the

imagined advantages or disadvantages to a particular candidate. Vew

York Times v, Sullivan, 376 U.S. 254, 270 (1964).

38. We reject the network's suggestion that we distinguish between

press conferences called by an incumbent candidate in his official ca-

pacity and those called in furtherance of his candidacy. Such an ap-

proach would, necessarily, place the Commission in the position of

deciding, in each case, whether the appearance of the official is political

or non-political. We have steadfastly eschewed making such determina-

tions, because to draw such distinctions would require us to make sub-

nae judgmerts concerning the content, context and potential po-

itical impact of a candidate’s appearance. See Paulsen v. FCC, 491

F. 2d 887, 890-91 (9th Cir. 1974).

39. Finally, we reject the suggestion by CBS that. in determining

whether press conferences are exempt, we consider the unique status

of the Presidency and the inherent newsworthiness of Presidential

communications with the public. It must be recognized that, alti.vugh.,

it is reasonable to conclude that the President’s unique status as Chief

Executive makes his communications relative to major national and

international events inherently newsworthy, it is equally as reasonable

to conclude that, in any given state in the country, the Governor's

unique status as chief executive of that state may well make similar

communications concerning that state newsworthy for its citizens.

Tn our view there is no rational distinction to be made between press

conferences at one level or another, since no such distinction can be

found within the legislative history of the 1959 Amendments, nor are

there any persuasive indications that the Congress intended to dis-

tinguish between press conferences exempt at one level and those at

another level of political offices which would not be exempt. Thus, rou-

tine presidential press conferences, as well as press conferences by

1% The Commission reviews only whether or not the broadcaster intends to promote the

interest of a particular candidate in presenting coverage of a news event. Supra, paras.

22-26 and footnote 9 therein.

55 F.C.C. 2d

712 l6a

governors, mayors, and, indeed, any candidates whose press confer-

ences are considered newsworthy and subject to on-the-spot coverage

may be exempt from Section 315 under our interpretation. ;

40. Thus, for the reasons stated »»ove, we today announce thet in the

future we will not follow our 1962 decisions in The Goodwill Station,

Inc., and National Broadcasting Co. (Wyckoff), and we will thus per-

mit on-the-spot coverage of appearances by candidates in the circum-

stances covered by those cases. See para. 10-11, su We also an-

nounce that we will no longer follow our 1964 CBS decision to the

extent that it denies an exemption under Section 315(a) (4), for cov-

erage of a press conference by a candidate for public office.” As we

said above, the undue stifling of broadcast cove of news events

involving candidates for public office has been unfortunate, and we

believe this remedy will go a long way toward ameliorating the _

city of coverage accorded these news events during the past fifteen

ears.

7 41. Accordingly. IT IS ORDERED, That the petitions of the yn

Institute Program on Communications and Society and of CBS, Inc.,

ARE GRANTED IN PART and DENIED IN PART, to the extent

indicated above.

FepersaL ComMuUNICATIONS COMMISSION,

Vincent J. Muuurss, Secretary.

DISSENTING STATEMENT OF CoMMISSIONER Ropert E. Lre

In a declaratory ruling, the majority has made a major policy

change in its interpretation of what constitutes “on-the-spot coverage

of bona fide news events” pursuant to Section 315(a) (4) of the Com-

manications Act of 1934, as amended. The reason given for this signifi-

cant decision is that the three cases defining Commission policy since

the early 1960's were based upon an error in the legal interpretation of

Congress’ intent in amending Section 315 in 1959."

» We believe that MAP’s contention that we may not accomplish this end throuch

declaratory relief. ewpra, para. 20, to be without merit. Although the Commission may not

adopt an interpretation which is inconsistent with a statutory term, it has freedom within

the guidelines established to interpret the statute in light of its greater expertise. Cf. Amcri-

can Broadcasting Co. v. United States, 110 F. Supp 374 (EDNY), aff'd 347 U.S. 284

(1953). Furthermore, a regulatory agency is not wedded to its past decisions. FCC v.

WORKO, Inc., 329 U.S. 223 (1946). When faced with new developments, or on further

consideration of a policy, an agency may alter its ) rulings and policies. American

Trucking Ass'n Vv. A.T. & S.P. RR. Co., 387 U.S. 397, 416 (1967). When it reverses course.

however, the ~~! must provide “an opinion or analysis indicating that the standard

is being chanced and not ignored and assuring that it is faithful and not indifferent to the

rule of law." Columbia Broadcasting System, Inc. v. FCC, 454 F. 2d 1018. 1026 (D.C.

Cir. 1971). We have squarely confronted both the legal and policy issues epecificaliy in-

volved, and have articulated our reasons for the change. The choice between rule-making

and adjndicative decisionmaking is largely one of agencr discretion. NLRB v. Bell Acro-

epace Co., 416 U.S. 267, 290-295 (1974) : S.E.C. v. Chenery Corp. 332 U.S. 194, 202 (1947).

Declararory relief, in the form of an advisory ruling, is appropriate where, as here, the

controversy concerns the correctness of a Commission's interpretation of law. As we point

out herein, the Commission’s decisions in 1962 and 1964 as to the “on-the-spot covrerace of

bona-fide news event relied upon a mistaken interpretation of law. See para. 22-26 herein.

This error of law cannot stand as the proper view in the future. Thus, prompt prospective

application of new policy, which is entailed by correction of legal error is properly within

the context of a declaratory ruling. Cf. N.L.R.B. v. Majeatic Weaving Co., 335 F. 2d 854,

860 (2d Cir. 1966). Furthermore. this action is consistent with Congress’s intent that the

Commission had ongoing authority to make decisions on a case-by-case basis or br rules

in interpreting the exemptions. See Sen. Rep. No. 562. 86th Cong.. Ist Sess. 12, 12 (1959) :

Cf. N.L.R.B. ¥. Wuman-Gerdon Co., 394 U.S. 759. 764 (1969). We believe our rulincs will

resolve these legal! issues well in advance of the 197% election rear, are essential to promote

the purposes of the 1959 Amendments to Section 315. and will clarify their interpretation

for candidates, licensees, and the Commission staff. Hence, we are not persuaded that our

discretion to issue declaratory orders is so limited.

_) The Goodtill Station, Inc.. 40 F.C.C. 362 (1962) : National Broadcasting Co., 40 F.C.C.

370 (1962) ; Columbia Broadcasting System, Inc., 40 F.C.C. 395 (1964).

55 F.C.C. 2d

17a 713

That there was legal error in deciding Goodwill, NBC (Wyekoff),

and Columbia Brectenting System, Inc., is far from clear. What is

clear to me is that the majority has sidestepped the very purpose of

Section 315 of the Communications Act—that all qualified candidates

for a public office be given equal opportunities to present their im-

ages and positions to the voters via broadcast media. With the legal

interpretation adopted today, the Commission has created a loophole

to Co ’ intent that allows grossly unbalanced coverage of the

political activities of political . so long as the political activ-

ities are covered live and in full. Pursuant to the legal interpretation

adopted today, a broadcaster may determine that only major can-

didates are newsworthy and, while covering their debates and press

conferences, may ignore similar appearances of other candidates.

A change in policy of this magnitude affects the heart of our politi-

cal system. At a minimum, it should be made in the context of a rule-

making lrg sy where — for broadcaster judgement can

be considered. The preferable procedure, however, is to let Congress

define the policy. During my tenure at the Commission, we have re-

peatedly told Congress that we are responsible for communications

— not political decisions. I feel that this role should be preserved.

issent.

DissENTING STATEMENT OF Com™MISssIONER Bensgaxxn L. Hooxs

(In Re Section 315 (Political Equal Time) )

The Commission is making a tragic mistake.’ In an ill-considered

rush, the majority has swept aside the clear intent of a vital portion

of Section 315 ? which was enacted by Congress to ensure that all polit-

ical Candidates were given media equality with all humanly reason-

able exactitude. By exempting two popular forms of political weap-

onry, the press conference and the debate, the -licate balance of

egalitarian precepts underlying political “equal time” legislated into

Section 315 and refined over 15 years of consistent administrative and

— construction, has suffered a severe and, perhaps, mortal blow.

issent.

Although the reversal of the principal cases holding that press con-

ferences and debates of political candidates triggered the statutory

“equal time” mechanism * is superficially narrow as expressly treated

in the Majority Order, the irresistable consequence of our action ef-

fectively renders nugatory § 315(a) (4). By necessary implication, our

ruling cannot be limited to the coincidental facts of the pivotal cases

(fn. 3) ; and, ultimately, all manner of possibly preferential broad-

cast coverage * under the guise of “bona fide news events” is the un-

deniable result of our decision herein.

1 Lest anyone think otherwise, it Is my view that the mistake is non-partisan as the

vote in this action tends to affirm. However. as any casual student of politics knows. mis-

take carries no yA labe and this action demonstrates that Democrats and Republicans

can be wrong at once. (In passing, a good reason—lI should think—to guaranty that all

candidates of all persuasions receive equal time.)

#47 U.S.C. §315(a)(4) which permits an exemption to equal time for ‘‘on-the-spot cov-

erage of bona fide news events... .”

*See The Goodwill Station, Inc., 40 F.C.C. 362 (1962): National Broadcasting Co., 40

F.C.C. 370 (1962) ; Columbia Broadcasting System, inc., 40 F.C.C. 395 (1964).

*In case anyone thinks the possibility of candidate faveritism is not an omnipresent

threat, see Star Stations of Indiana, Inc., 51 FCC 2d 95 (1975) (Hooks not participating),

appeals pending. D.C. Cir. Case Nos. 75-1203, 75-1204, 75-1205. The Star decision and

Initial Decision (51 FCC 2d at 114) are rife with instances of a broadcaster agonizing to

find ways to favor I ty candidates with broadcast coverage. How much more simple,

and legal, it would have been had the loophole we now fashion been in effect.

55 F.C.C. 2d

714 18a

The policy decision engendering the renunciation of our well

pasmnel induction of press conferences and debates (cogently set forth

in the fn. 3 cases) is based on the expressed desire of the majority to

provide fuller broadcast coverage of the activities of political candi-

dates, unencumbered by Section 315 requirements for opponent equal

time. However, I do not consider either a debate or press conference

to be the type of spontaneous, apolitical occurrence Congress regarded

as a conventional news event. Both, and particularly debates, are

species of quasi-news used as potent devices for the promulgation of

the claims of a political candidate in the course of an election; they

are staged, structured and 6 peeoery — tools imparting

very little of news value which cannot now be broadcast within a

“bona fide newscast” where such news is already exempt under

§ 315(a) (1). Indeed, both are unlikely vehicles for the formation of

hard news. For example, if an official must transmit critical informa-

tion to the citizenry, there is no assurance in a news conference that

questions relating to the critical issue will even be asked. Nor does

a news conference provide the opportunity for the sort of extended

and well considered response one expects to accompany Official reaction

to a critical event.® Political debates, on the other hand, are hard to

imagine as fast-developing news exigencies, since they are ordinarily

scheduled long in advance, with partisan hype and hoopla, and the

issues in a debate are framed and restricted by the disposition of the

participants. Moreover, and most important from the standpoint of

assuring at least a modicum of coverage equality, a candidate not

invited to participate in a debate is at a double disadvantage; not only

does the uninvited candidate miss the exposure and opportunity pro-

vided by participation in the debate itself, our ruling today means

that the uninvited candidate is not entitled to any other time to com-

pensate for opponent appearances on debate. The spirit of § 315,

ergo, has been separated from the body.

To ask the rhetorical question “if a Presidential press conference

or a majority party candidate debate is not, of itself, a ‘bona fide news

event.’ what is” begs the issue. The real issue, given our reconstruction,

is “what, then. involving important elections, is not news.” * That is

whv I seid earlier that the inevitable byproduct of this reversal is

nullification of the carefully circumscribed. intentionally limited pro-

visions of Subsections 315(a) (1)-315(a) (3).

That such provisions have been neutralized by our ruling today

requires only simple development. On its face, our ruling exempts only

press conferences and debates fitting the factual settings of Goodwill,

NBC. and CBS (fn. 3, supra).’ A strict reversal on indigenous facts

legally means that a press conference or a debate may only be covered

5 The need of an elected official to report to the public on urgent developments has been

recognized and provided for br Commission precedent. See, Republican National Committee, ,

40 FCC 408 (1964), aff'd bv an equally divided Court aub nom., Goldwater v. FCC, No. 18,

963 (D.C. Cir., Oct. 27, 1964) (per curriam), cert. denied, 279 U.S. 893 (1984).

News is dictionary defined as “renorts. collectively. of recent happenings, especially

those broadcast over radio or TT... .” Webster’s New World Dictionary of the American

Languace (2nd College Ed. 1972). This self-definition syndrone of broadcast news Is,

obviousiy, a condition reoutring a narrow reading of the statute so as not to render the

“news event” exemption meaningless. ;

* Even this limitation is not strictly trne, since the Order itself goes beyond the facts in

CBS which involved a Presidential press conference. Todavr’s ruling concedes the im-

possibility of limiting exemptions to Presidents and, ewa sponte, exempts governors and

mayors as well. Even this iimitation is tenuous at best.

55 F.C.C. 2d

Re mane RRR

19a 715

if it is (a) broadcast live; (b) in its entirety; (c) not sponsored or

controlled by the broadcaster; and (4) not rigged by the broadcast

and/or candidate.

Inasmuch as ninety-nine percent of the usual news broadcast is of

taped excerpts, the “live” and “entirety” limitations have no plausible

relationship to the question of “on-the-spot coverage of bona fide news

events.” aves a) (4). These two distinctions are so patently meritless

as to make further comment practically unnecessary. If “bona fide

news events” are only those covered live and in totality, then there is

no such thing as broadcast news currently available. The requirement

that the event not be arranged or controlled by the broadcaster (and

outside of a studio) is similarly artificial distinction because broadcast

of any event requires close cooperation between a broadcaster and

participants. Stage direction comes close to control or arrangement.®

And, finally, whether or not coverage is rigged or preference is being

afforded one or more candidates relates to the dona fides of the broad-

caster. This is a matter of intent and objective proof of favoritism is

all but impossible.®

Hence, stripped of the foregoing irrelevant distinctions (which, like

oak leaves in October, must fall). the remaining test for exempt cov-

erage of debates and press conferences will come to depend on the sub-

jective newsworthiness judgment of a licensee. Indeed, if logic and

reasoned policy play any part in our decisional processes, and if the

purpose of our policy reversal is to facilitate broadcast coverage of the

utterings and activities of political candidates, how can we consistently

limit the exemption to debates and press conferences? Is a policy state-

ment, opinion or other activity of a major candidate any less news-

worthy or entitled to coverage because it transpires in a format other

than a debate or press conference? If the gravamen is the transmittal

of substance to the populace, a statement delivered from a soap box

in Times Square—from a legal and policy aspect—is equally deserving

of a 315(a) (4) exemption.

We. therefore, have interpreted § 315(a) into oblivion. That is why

our past interpretation requiring the happenstance of a “bona fide

news event” extrinsic to the candidate or the political message was

imperative to impart any legislative meaning to $ 315(2) (4). My view

is supported by the statement of Chairman Oren Harris to the House

of Representatives, noted at the adoption of 315(a) : “appearance of

a candidate in on-the-spot-coverage of news events is not to be exempt

from the equal time requirements unless the program covers bona fide

news events.” See 40 FCC at 372-373.%° It is abundantly clear that

Congress saw the candidate appearance, qua appearance, and the “news

event” as separate and distinct happenings unless it is assumed that

Congressman Harris was talking in nonsensical circles. While Con-

gress rejected the stipulation that an exempt candidate appearance

must be “incidental to” a discretely newsworthy event, it is unreason-

® See. e.0., Complaint Concerrina the CRS Prooram, “The Selling o con”

FCC 24 150 (1971) : CRS “Hunger in America” 20 FCC 2d 143 (1969). Pi oe: oo

® Rut compare, Star Stations of Indiana, Ine., supra fn. 4.

There are. of course. manv other manifestations of Congressional intent. chief of

which is the enactment of Subsection 315(a) itself when Concress @id not delar at all

when it felt the Commission had misconstrued the intent of § 215 in the Lar Daly case. The

other ohrious examnle is the enactment of Senate Joint Resolution 207 iP _L. Sf-077) which

specifically exempted Presidential debates in the 1960 Kennedy-“ixon election,

55 F.C.C. 2d

716 20a

able to infer that Congress intended a naked candidate appearance on

a debate, press conference or street corner to be the “news event itself.

If any unrigged candidate appearance is inherently newsworthy for

purposes of a $315(a)(4) exemption, then there is no equal time

requirement for the broadcast coverage of opposing candidates save

what a broadcaster decides is equally newsworthy. If newsworthiness

is the operative test, then all the other carefully drafted 315 ( a) exemp-

tions and protections are useless and unnecessary. Without being only

“incidental to (or, fortuitously circumstantial to) uniquely news-

worthy events, there are endless examples of when a candidate’s ap-

pearance is entitled to a § 315(a) (4) exemption. And no better example

can be found than that presented by a companion item to the instant

ruling wherein a request was made to determine whether the President

could be shown initiating the annual United Way charity drive, and

which request the majority ironically rejected. Here is an illustration

of an inherently newsworthy event (i.e. initiation of the drive) in

which the President’s appearance, while not merely “incidental” there-

to. was in the context of a separate. apolitical, bona fide news event.

Although the line is thin (as are many lines we walk. ¢.g., Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1967), we cannot eradicate

by administrative fiat that line legislatively drawn by Congress. The

curiosity of our two interpretive rulings is that a purely political event

like a debate does not activate equal time whereas a purely apolitical,

separately newsworthy appearance (viz., United Way drive) does.

Von Sequitur. :

Because the effects of our action today are so sweeping and impor-

tant. and whether or not our prior holdings were of such solidified gen-

eral applicability as to require rule making for significant alteration,

an Inquiry and Rule Making would have been helpful in resolving these

issues. At least, I believe. it would have helped open our eves to the

drastic ramifications of our seemingly limited exemptions. The ques-

tion as to whether, as a iegal matter under the Administrative Proce-

dure Act. such rule making is mandatory has been ably argued by all

sides and the courts will eventually make that judgment.

Finally, our action here is in excess of necessity because if we wish to

‘ assure that licensees are not avoiding legitimate and important politi-

cal issues because they are required to fairly treat candidate access, we

are not powerless to act. A licensee has an affirmative duty “to provide

a reasonable amount of time for the presentation ... o. public issues.”

Report on Editorializing, 13 FCC 1246, 1249 (1949).

The majority may no longer be pleased with the journalistic stric-

tures set forth in § 315(a) but we cannot legally strain to interpret that

statute so as to annul Congressional Acts.

While I do not doubt the motives of the majority in liberalizing

political coverage. and as has been expressed in other ways, the road to

Perdition bisects the crossroads of Noble Intention and Muddled Per- -

ception. We have taken the wrong fork.

55 F.C.C. 2d

21a 717

STATEMENT oF ComMISSIONER Jaxues H. QvuELLo

In WuicH ComMMISSIONER RoBINson JOINS

(Re Section 315)

The action taken by the majority was, I believe, consistent with

Congressional intent, common sense and the public interest. There can

be no doubt that the prior interpretation of Section 315(a) (4) was

acting as a restraint on broadcast coverage of political candidates to

the detriment of an informed populace. I refuse to accept the cynical

view that incumbent congressmen preferred this limited coverage in

their own self-interest.

I do not view this issue as a partisan political one in which one

party or one candidate stands to gain or lose by our decision. Political

dlebates—in the limited context in which they will now be exempt from

equal time requirements—can only benefit the American people by

making us all more aware of the candidates for political office and their

stated views. The news conference, too, can serve to inform and educate

without the artificial restraints imposed by government.

The direct coverage of an event—such as debates and news confer.

ences—can present to those who will take the time to watch and listen,

many of the subtleties and nuances which often escape the para-

phrased reports we hear and read. Direct coverage—to my mind—is

one of the unique qualities broadcasting brings to public service. It per-

mits each of us to participate directly in the process of selecting our

representatives by what they have to say and how they say it, based

upon our own analysis. It helps us to better weigh a candidate’s quali-

fications for office according to our own criteria. Journalistic analysis

and commentary, too, are important to our understanding. But, such

analysis takes on added value when it is compared with the actual event.

_.herefore, I believe that a better informed American public is an inev-

itable consequence of our acti«n. '

1n added benefit to the listening and viewing public is that our

action today has removed the restraints from coverage of all political

contests. state and local, as well as Federal. For those who believe that

broadcast appre of political events will hereafter be limited to only

major party candidates, I hasten to point out that the Fairness Doc-

tril.e remains unaffected. Consistent with the Doctrine, I fully expect

that all candidates for political office will be accorded a reasonable

opportunity to present their views. I do not see our decision as limiting

access to political candidates in any way. On the contrary, it is my

hope—and my expectation—that broadcasting will now be better able

to fulfill its public interest responsibility in covering political events.

55 F.C.C, 2d

718 22a

STATEMENT oF ComMIssIONER ABBotr WasHBURN ON Topay’s AcTION

on AprpLicaTION or StBsEecTion 315(a) (4) or CostarcnicatTions Act

SEpremBer 25, 1975.

It is clear from the legislative record that it was the intent of Con-

ress in 1959, by means of the “news exemptions” to the equal-time

ection 515, to open up and facilitate broadcast coverage of political

discussions and events in this country.

However, the Commission’s narrow interpretations, in 1962 and 1964,

of the Subsection 315(a) (4) exemption (“on-the-spot coverage of bona

fide news events . . . including but not limited to politica] conven-

tions”) have had the opposite effect. They have effectively inhibited

live on-the-spot coverage of debates between candidates and live cov-

erage of Presidential news conferences.

Under the Subsection 315(a) (1) exemption, these same events may

be, and are, covered in newscasts. Our action today, rescinding the 1962

and 1964 rulings, makes it possible for broadcasters to cover these

events not just in newscasts but also live and in their entirety whenever

these events are considered bona fide news.

The Bicentennial year should be a model of the fullest possible

broadcast coverage of political activities for the benefit of the

electorate.

Separate STaTEMENT OF Comrmissioner GLEX O. Roprnson

I agree with Commissioner Quello’s views on our re-interpretation

of Section 315, but want to add a few additional thoughts of my own.

First, as Commissioner Quello correctly emphasizes, the Commission’s

declaratory order is not a partisan political act; it is precisely what

it — to be—the rehabilitation of Section 315 by correcting an

old and embarrassing mistake concerning its interpretation. Admit-

ting mistakes is not something government agencies do often or

ney but it should be a source of satisfaction that they do it at

all.

Inasmuch as our action today corrects a mistake of law, I am clear

that the agency is not obliged to go through a notice and comment

rulemaking. As I have elsewhere expounded at length, the process

of adjudication—and declaratory rulings belong to this genre of ad-

ministrative action—is an appropriate vehicle for policy decisions such

as this (particularly where, as here. the decision turns on purely legal

issues—which, it is noted. were earlier decided by adjudication). See

Robinson. The Making of Administrative Policy: Another Look at

Rulemoking and Adjudication and Administrative Procedure Reform,

118 U. Pa. L. Rev. 485 (1970). The Supreme Court has made it clear

that agencies have a very broad discretion to formulate and re-formu-

late policies outside the formal constraints of rulemaking. National,

Labor Relations Board v. Bell Aerospace Co., 416 U.S. 289 (1974).

Hence, today’s action is as sound legally as it is sensible.

55 F.C.C. 2d

—E ee Be

23a

P iz APPENDIX 2

OPINION OF COURT OF APPEALS

Notice: Thi3 Opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

Uuited States Court of Apprals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1951

THE HONORABLE SHIRLEY CHISHOLM, ET AL., PETITIONERS

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, RESPONDE’’TS

CBS, INc., AMERICAN BROADCASTING COMPANIES, INC.,

NATIONAL BROADCASTING COMPANY, INC.,

RADIO TELEVISION NEWS DIRECTORS ASSOCIATION,

THE OFFICE OF COMMUNICATION OF THE

UNITED CHURCH OF CHRIST, ET AL.,

INTERN..TIONAL UNION, UNITED AUTOMOBILE,

Uniic C3 treAmRaSPACHAND: AGRICULTURAL IMPLEMENT

fe KOK icv Workigh PHA munca, INTERVENORS

FILED «APR: 2 1975

No. 75-1994

GRORGE A FIRM RoNaL COMMITTEE, PETITIONER

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, RESPONDENTS

AMERICAN BROADCASTING COMPANY, INC., AND

RADIO TELEVISION NEWS DIRECTORS ASSOCIATION,

INTERVFNORS

24a

Petitions for Review of an Order of the

Federal Communications Commission

Argued November 26, 1975

Decided April 12, 1976

Harvey J. Shulman, with whom Collot Guerard, was

on the brief for petitioners in No. 75-1951.

Marcus Cohn, with whom Robert N. Smith, Martin J.

Gaynes and Sheldon S. Cohen were on the brief for

petitioner in No. 75-1994.

Werner K. Hartenberger, Deputy General Counsel,

Federal Communications Commission, with whom Ash-

ton LR. Hardy, General Counsel, Daniel M. Armstrong,

Acting Associate General Counsel, Slephen A. Sharp,

Counsel, I'ederal Communications Commission. B. Barry

Grossman and Lee I. Waintraub, Attorneys, Department

of Justice, were on the brief for respondents.

Timothy B. Dyk, with whom J. Roger Wollenberg and

Danicl Marcus, were on the brief for intervenor CBS

Inc., Joel Rosenbloom and Richard D. Paisner also en-

tered appearances for intervenor CBS Inc.

James A. McKenna, Jr., Thomas N. Frohock and John

J. Smith, were on the brief for intervenor American

Broadcasting Companies, Inc.

Corydon B. Dunham and Howard Monderer were on

the brief for intervenor National Broadcasting Company,

Inc.

J. Laurent Scharff, was on the brief for intervenor

Radio Television News Directors Association,

Ellen Show Agress and Earle Kk. Moore, were on the

brief for intervenor Office of Communication of the

United Church of Christ, et al.

Se ee TE ELT a

0 ene meee mene Or

25a

Henry Geller, filed a brief on behalf of Aspen Institute

Program as amicus curiae urging affirmance.

Kenneth J. Guido, Jr., filed a brief on behalf of Com-

mon Cause as amicus curiae urging affirmance.

Stephen I. Schlossberg, entered an apearance for in-

tervenor, International Union United Automobile, Aero-

space and Agricultural Implement Workers of America.

Henry Geller, entered an apnearance for the League

of Women Voters of the United States as amicus curiae.

Before: WRIGHT, TAMM and AVILKEY, Circuit Judges

Opinion for the court filed“ by Circuit Judge TAMM

with whom Circuit J {x Wi 2Y concurs.

Dissenting opinion iled by Clreuit Judge WRIGHT.

AMM, Cfiruit Judge: /

“ ~

I. INTRODUCTION AND BACKGROUND-

This case concerns perhaps the most important inter-

pretation of the equal time provision of the Communica-

tions Act of 1934, 47 U.S.C. § 315(a),’ which has arisen

in the past decade. Petitioners, the Democratic National

Committee (“DNC”), the National Organization for

Women (“NOW”), and Representative Shirley Chisholm,

ask us to review various aspects of a Memorandum Opin-

ion and Order” of the Federal Communications Commis-

sion (hereinafter “FCC” or “Commission”) reversing a

statutory interpretation of over ten years’ duration and

* Section 315(a) of the Communications Act of 1934, Act of

June 19, 1934, ch. 652, § 315, 48 Stat. 1088, was identical to

Section 18 of the Radio Act of 1927, Act of February 23,

1927, ch. 169, § 18, 44 Stat. 1170.

? The ruling under review is set forth at 55 FCC 2d 697

(1975) ; J.A. 141 (hereinafter referred to as Opinion).

26a

holdin that, henceforth, debates between qualified polit-

iva! candidates initiated by nonbroadeast entities (non-

studio debates) and candidates’ press conferences will be

exempt from the equal time requirements of Section 315,

provided they are covered live, based upon the good faith

determination of licensees that they are “bona fide news

events” * worthy of presentation, and provided further

that there is no evidence of broadeaster favoritism. Our

review of the legislative history surrounding passage of

the “bona fide news event” exemption reveals that it is

inconclusive as to whether Congress intended for these

particular formats to bé included, although we find sub-

stantial support for the Commission's new interpretation

in the broad Congressional policies behind passayve of the

exemption—increasing broadcaster discretion and encour-

aging greater coverage of political news--and in the dis-

cretion granted the Commission in interpreting and ap-

plying the amendment to particular program formats.

We therefore defer to the Commission’s interpretation of

the Act it is charged with administering. We also conclude

that the Commission has properly exercised its discretion

in accomplishing the reversal via declaratory order rather

than through notice and comment rulemaking.

A. General Factual and Legislative Background

Section 315, as originally enacted and interpreted, had

imposed upon broadcasters a duty of absolute equality of

treatment of competing political candidates in the “use”

of broadcast facilities, stating:

(a) If any licensee shall permit any person who is

a legally qualified candidate for any public office to

use a broadcasting station, he shall afford equal

opportunities to all other such candidates for that

office in the use of such broadcasting station: Pro-

vided, That such licensee shall have no power of

*47 U.S.C. §315(a) (4) (1959).

ne we earn

27a

censorship over the material broadcast under the

provisions of this section. No obligation is im-

poced upon any licensee to allow the use of its

station by any such candidate.

47 U.S.C. § 315(a).

For a number of years the FCC interpreted the equal

time provision as inapplicable to the appearance of a can-

didate on a newscast, reasoning that such an appearance

did not constitute a “use” of the broadcast facility insofar

as the candidate did not directly or indirectly initiate the

filming or presentation of the event. See, e.g., Allen H.

Blondy, 40 FCC 284, 14 P & F Rapio Rec. 1199 (1957).

This interpretation hecame embodied in the Commission’s

Official release of October 6, 1958, entitled “Use of Broad-

east Facilities by Candidates for Public Office.” Public

Notice FCC 58-936, III-12; 105 Cone. Rec. 14459 (1959).

In 1959, however, the Commission effected a radical de-

parture from its prior interpretation in the so-called “Lar

Daly” case, Columbia Broadcasting System (Lar Daly),

18 P & F Rapbio REG. 238, reconsideration denied, 26 FCC

715, 18 P & F Rapio Rec. 701 (1959), and interpreted

the statute to mean that the equal time rule applied even

to the appearance of a candidate on a regularly scheduled

newscast.‘ The Commission’s position on this matter

created a navional furor, and it was feared that its strict

application of the equal opportunities provision “would

tend to dry up meaningful radio and television coverage

of political campaigns.” S. Rep. No. 652, 86th Cong., 1st

‘Daly, a perennial candidate in both the Republican and

Democratic mayoralty primaries in Chicago, had complained

that several stations presented newsclips showing the mayor-

alty candidates in the two primaries but refused to afford him

equal time. The Commission ruled that the presentation of

these filmclips constituted a “use” of the broadcast facility

and, consequently, that Daly was entitled to equal time.

28a

Ss, 10 419500" This concern led Congress to conclude

that the coneept of ab-olute equality among competing

post enth candidates would have to vive way, to some ex-

tent, to two other “worthy and desirable” objectives:

First, the right of the public to be informed through

broaudeasts of the political events; and Second, the

di-eretion of the broudeaster to be selective with

respect to the broadcasting of such events.

Hearings on Political Broadcasts equal Tim Before the

Seocommilles on Communications and Power of the House

Committee on Interstate and Foreign Commerce, s6th

Cong., Ist Sess. 2 (1969) (comment of Chairman Harris).

Pursuant to these objectives, Congress amended Section

3151a) on September 4, 1959, to add the following ex-

emptions:

Appearance by a legally qualified candidate on

any-—

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appear-

ance of the candidate is incidental to the presenta-

tion of the subject or subjects covered by the news

documentary), or

* Congress’ concern was that rigid application of Section

315 to broudeast coverage of po. tical news would act as a

deterrent to any coverage of political news at all. This concern

was voiced in the Report of the Senate Committee on Inter-

state and loreizn Commerce, recommending the passage of

the bill which was finally enacted, as follows:

The inevitable consequence [of the FCC’s rigid inter-

pretation] is that a broadcaster will be reluctant to show

one political candidate in any news-type program |es- he

assumes the burden of presenting a parade of «spor cunts,

S. REP. No. 562, 86th Cong., Ist Sess. 9 (1959).

29a

(4) on-the-spot coverage of bona fide news events

(including but not limited to political conventions

and activities incidental thereto),

shall not be deemed to be use of a broadcasting sta-

tion within the meaning of this subsection. Nothing

in the foregoing «*ntence shall be construed as re-

lieving broadcasters, in connection with the presenta-

tion of newscasts, news interviews, news documen-

taries, and on-the-spot coverage of news events, from

the obligation imposed upon them under this chapter

to operate in the public interest and to afford rea-

sonable opportunity for the discussion of conflicting

views on issues of public importance.

P.L. 86-274, § 1, 73 Stat. 557, amending 47 U.S.C. § 315.

Thus armed with a not-so-clear Congressional directive

generally exempting news broadcasting from Section 315’s

equal time requirements, the Commission set forth to ap-

ply the news coverage exemptions to specific kinds of

events and coverage. In The Goodwill Stations, Ine.

(WJR), 40 FCC 362, 24 P & F Rapio Rec. 413 (1962),

the Commission ruled that a radio broadcast of a debate

sponsored by the Detroit Economic Club between the two

major Michigan gubernatorial candidates, part of a regu-

lar series of broadcasts of Economic Club luncheons,

failed to qualify for exemption under Section 315(a) (4)

as “on-the-spot coverage of bona fide news events... .”

Ten days later, the Commission held in National Broad-

casting Co. (Wyckoff), 40 FCC 370, 24 P & F Rapio Rec.

401 (1962), that a debate at the annual UPI convention

featuring the two major California gubernatorial candi-

dates could not qualify under the bona fide news event

exemption. These two decisions, read together, effectively

excluded all debates from the Section 315(a) (4) exemp-

tion. Two years later, the Commission ruled in response

to a network’s request that the broadcast of a press con-

ference held by an incumbent President who is a candi-

date for reelection, or by a non-incumbent candidate for

30a

President, is a non-exempt “use” of the broadcast facility

within the meaning of Section 315. Columbia Broadcast-

ing System, Ine., 40 FCC 395, 3 P & F Rapio Rec. 2d

623 (1964+. The Commission's 1975 Opinion overrules

these decisions concluding, infer alia, that they were

based on an erroneous reading of the legislative history

of Section 315¢ai (4).

B. Description of Parties and Immediate Background

The Commission's 1975 Opinion was in response to peti-

tions tiled by the Aspen Institute Program on Communi-

cations and Society (“Aspen”) and CBS, Ine. ("CBS").

The Aspen petition, filed on April 22, 1975, asked the

Commission to reexamine its 1962 Goodiill and Wyckoff

decisions, holding that debates between candidates could

net qualify as “on-the-spot coverage of bona fide news

events” under the Section 315(a) (4) exemption. <lspen

Iystitute Program on Communications and Socicty Peti-

tion for Revision of First Report. Fairness Report in

Doeckct Ne. 19260 or for Issuance of Policy Statement or

Declaratory Ruling, April 22 1975. J.A. 1. Aspen ar-

gued that these 1962 rulings were based on the mistaken

assumption that Congress intended Section 315(a) (4) to

apply only to newscasts in wnich the candidates’ appear-

ance was “incidental to” an independent newsworthy

event, and urged the Commission to adopt an interpreta-

tion of the exemption consistent with the Congressional

purpose to encourage and increase news coverage of polit-

ical events. Such a broad, remedial construction, Aspen

urged, would enable broadcasters to “more effectively and

fully .. . inform the American people of important polit-

ival races and issues” and to “make the Bicentennial a

model political broadcast year.” Opinion at 1; J.A. 1-3.

The CBS petition, filed on July 16, 1975, requested a

‘uling that Presidential press conferences could likewise

«ualifv under the Section 3151a) (4) exemption from the

RO. nes ee SO

3la

equal opportunities requirements, so that broadcasters

who covered such press conferences in the exercise of

their professional news judgment would not incur equal

opportunities obligations. Columbia Broadcasting System,

Ine., Petition for Declaratory Ruling, July 16, 1975; J.A.

22. CBS pointed out that Tresident Ford had formally

announced his candidacy for the Republican nomination

for President on July 8, 1975, more than 15 months

before the election.* All broadcast appearances by the

President thus potentially could give rise to equal oppor-

tunity demands by other candidates for the Republican

nomination unless such appearances fell within the exemp-

tions to Section 315. Broadcast coverage of Presidential

press conferences under these circumstances would not be

feasible throughout the entire period between the Presi-

dent’s announcement and the 1976 election.” CBS re-

quested that the Commission reexamine its 1964 ruling

and interpret Section 315 as exempting live broadcast

coverage of Presidential press conferences from the equal

opportunities requirements where broadcasters in the

exercise of their good faith news judgments decide that

a conference is newsworthy. CBS Brief at 4-5. CBS ar-

gued that this interpretation was consistent with “the

broad intent of Congress in enacting the 1959 amend-

°J.A. 22. The Federal Election Campaign Act Amendments

of 1974, 26 U.S.C. $§ 9032(6), 9037, encourage early declara-

tions by candidates for the Presidency by making matching

public funds available.

’In this regard, it is interesting to note the large number

of candidates for the Presidency in recent elections, both

serious and “fringe.” The Federal Election Commission has

published a listing of some 52 Presidential and Vice-presiden-

tial candidates on whose behalf reports have been filed during

1975. See 40 Fed. Reg. 49682, 49684-89 (Oct. 23, 1975). In

1960, there were at least 8 candidates, in 1968, there were 14,

and in 1972, there were 11. CBS Brief at 42, citing America

Votes 10, A Handbook of Contemporary American Election

Statistics (R. Scammon, ed. 1973).

32a

ments to Section 315 to ensure the free flow of vital news

to the public and provide ‘latitude for the exercise of good

faith news judement on the part of broadcasters and

networks.” " CES Brief at 5, quoting 105 Cong. REc.

IFes2 61959) tremarks of Rep. Harris). See also CBS

petition at 12; J.A. 33. To adhere to the earlier rulings,

CBS contended, would inhibit the free flow of news from

the President to the people.

On September 2, 1975, the Democratic National Com-

mittee filed comments on the CBS petition, opposing re-

consideration of the Commission's 1964 ruling that Presi-

dential press conferences were not exempt from the equal

opportunities requirements of Section 315, J.A. 45, Shortly

thereafter, on September 12, 1975, the Honorable Shirley

Chisholm and the National Organization for Women filed

comments opposing both the CBS and Aspen petitions.

J.A. 70, 127.

The Commission’s Opinion, released on September 30,

1975, acting on the CBS and Aspen petitions, overruled

its 1964 CBS decision that Presidential press conferences

could not qualify for exemption under Section 315ta) (4)

and further held that press conferences of other candi-

dates for political office broadcast “live and in their en-

tirety” could also quality for the “on-the-spot coverage of

bon: fide news events” exemption." The Coinmission also

overruled its Goodwill and Wyckoff decisions, supra, and

held that Section 315(a) (4) exempts from the equal op-

portunity requirement candidate debates sponsored by

non-broadeast entities, i.e., non-studio debates.

The basis for the Commission’s reversal was its deci-

sion that the earlier cases had been based on a faulty

reading of the legislative history surrounding the 1959

~The Commission reaffirmed its 1964 holding that press

conferences cannot be considered exempt as “bona fide news

interviews” under Section 315(a) (2). Opinion, para. 31-35;

TA 157-59

33a

amendment. With respect to the debates concerned in the

Goodwill and Wyckoff decisions, the Commission in 1962

had rejected the contention that, for the purposes of Sec-

tion 315(a) (4), it was sufficient that a licensee had exer-

cised its good faith news judgment in concluding that a

particular debate constituted a bona fide news event which

it wished to cover live and determined instead that de-

bates could qualify neither as “bona fide news _ inter-

views” (because the candidates, not the broadcaster, con-

trolled the format and participants), nor as “bona fide

news events” (because the appearance of the candidates

was not “incidental to” some other news event—it was

the event). In support of this “incidental to” test, the

Commission had relied in 1962 on a 1959 House Commit-

tee Report" stating that “the principal test was ‘whether

the appearance . . . is incidental to the on-the-spot cov-

erage of a news event or whether it is for the purpose of

advancing the candidacy of a candidate.’” 40 FCC 364,

372-73, quoted in FCC Brief at 5. A second rationale

advanced by the Commission was its fear that interpret-

ing a debate to constitute a “bona fide news event” would

effectively nullify the equal time objectives of Section 315

and deprive the other three exem)tions of their meaning."

° H.R. Rep. No. 806, 86th Cong., Ist Sess. (1959).

is simply whether or not the station’s decision to cover the

event and to put it on a broadcast program constitutes

a bona fide news judgment, there would be no meaning to

the other three exemptions in § 315(a) since these, too,

all involve a bona fide news judgment by the broadcaster.

Carried out to its logical conclusion, this approach would

also largely nullify the objectives of §315 to give the

public the advantage of a full, complete, and exhaustive

discussion, on a fair opportunity basis, to all legally qual-

ified candidates and for the benefit of the public at large.

40 FCC at 398 (footnotes omitted).

34a

The Commission's rationale for the 1964 CBS decision

Wit essentially the same with respect to the Section 315

fared! exemption as its rationale for the earlier debate

decisions: the appearance of the candidate was not inci-

dental to some other independently newsworthy event. In

addition, the Commission rejected the argument that the

broadcaster's good faith judgment of the newsworthiness

of an event Was sufficient to qualify coverage of the event

for the Section 315(a) (4) exemption. 55 FCC 2d at 701,

para. 18; JA. L16.

In its 1975 Opinion, the Commission concluded that the

analysis upon which it had based its decizions in these

three causes had been erroneous. The Commission now con-

cluded that the “incidental to” test had been removed

from the proposed legislation prior to its enactment in

1959. Id. at 703, para. 22; J.A. 150."' The “incidental to”

requirement was, in fact, stricken in confercnee in the

face of opposition during the floor debate in the House,"

and the conference bill was adopted without the disputed

language.'* Under the new test, the Commission no longer

"47 U.S.C. §315(a) (3), not relevant here, explicitly re-

tains the “incidental to” requirement.

'? See the statement of Rep. Bennett of Michigan, 105 Conc.

Ree, 16241. At the floor discussion of the bill following dele-

tion of the “incidental to” provision, Bennctt stated: “I am

glad to see that the conference substitute omits this language

because the majority of conferees felt as I do, that this re-

quirement would lead to even greater confusion than we have

at present under the Lar Daly decision.” Jd. at 17778.

‘Rep. Moss, who had drafted the “incidental to” language,

dissented from the conference report and during floor debate

circulated a letter detailing his reasons. Rep. Bennett re-

sponded as follows:

1 feel that this language [“incidental to the presentation

of news”] would make the task of broadcasters and the

FC ye impossible one ond that even with the hest in-

35a

seeks to determine whether the appearance of the candi-

date in a debate is the central aspect of the presentation

or is merely incidental to some other independently news-

worthy event, and

. a program which might otherwise be exempt

does not lose its exempt status because the appear-

ance of a candidate is a central aspect of the pres-

entation, and not incidental to another news event.

Id. at 704-05, para. 23; J.A. 153." The new test, in the

Commission’s words, “fA|llows reasonable latitude for

exercise of good faith news judgments by broadcasters

and networks by leaving the initial determination as to

eligibility for section 315 exemption to their reasonable

and good faith judgment.” Jd. at 708, para. 30; J.A. 157.

The Commission further found that reversal of its prior

decisions “comports with the original legislative intent

and serves the public interest by allowing broadcasters

to make a fuller and more effective contribution to an

informed electorate.” Jd. at 706, para. 27; J.A. 154.

On September 26, 1975, Representative Chisholm and

NOW filed their petition for review in this court. Shortly

tentions in the world neither broadcasters nor the Com-

mission can meet the task of distinguishing between ap-

pearances which are incidental and appearances which

are not incidental.

105 ConG. REc. 17778.

** The Commission determined that the same rationale ap-

plied with respect to press conferences, stating that, “[P]ress

conferences do not iose their exemption merely because the

candidate’s appearance is the central aspect of the news

event.” 55 FCC 2d at 708, para. 30; J.A. 157. In this regard,

the Commission declined to adopt CBS’s rationale which would

have distinguished between Presidential and other press con-

ferences based on the “unique status of the Presidency and

the inherent newsworthiness of Presidentia] communications

with the public.” 7d. at 711, para. 39; J.A. 161.

36a

thereafter, all three majer networks intervened. DNC

filed its petition for review on October 8, 1975, and the

two cases were consolidated.” Jurisdiction is properly in-

voked under 47 U.S.C. $ 402(a) and 28 U.S.C. § 2342.

Il. L&eGisLarive Tistory OF THE

NEWS CovERAGE EXEMPTIONS

Our starting point in determining the scope and mean-

ing of Section 315(a1(4) is, of course, the intent of Con-

gress. For this we look both to the statutory language

itself and to the legislative history. In the words of Jus-

tice Frankfurter,

[a] statute, like other living organisms, derives

significance and sustenance from its environment,

from which it cannot be severed without being muti-

lated. Especially is that true where the statute...

is part of a legislative process having a history and

a purpose.

United States v. Monia, 317 U.S. 424, 432 (1943)

(Frankfurter, J., dissenting).

We note initially that the four exemptions apply gen-

erally to news broadcasts and that subsection (4), with

which we are directly concerned. is limited to ‘“on-the-

spot [live] coverage of bona fide news events (including

but not limited to political conventions and activities in-

cidental thereto) ... .” 47 U.S.C. § 315(a) (4) (1959)

(emphasis added). All of the exemptions, in fact, contain

the requirement that the program or event be “bona

fide” news, yet the language itself provides no ready

clue as to how this requirement is to be satisfied. It is

unclear from the statute whether the test refers to the

characier of the event (i.e., its inherent newsworthiness),

the nature of the candidate’s appearance (i.e., whether

* Dy order dated October 17, 1975, No. 75-1994 (DNC)

was consolidated with No. 75-1951 (Rep. Chisholm and NOW).

37a

the format is that of a debate, press conference, speech,

etc.), or the candidate’s relation to the broadcast (2.¢.,

whether he “controls” it). Moreover, the exemption pro-

visions do not reveal who is to make this crucial deter-

mination, the broadcaster or the Commission. The only

clue from the language of Section 315(a)(4) is the

parenthetical phrase which states that political conven-

tions and activities incidental thereto—presumably nom-

inating and acceptance speeches—definitely constitute

“bona fide news events,” and that the scope of the exemp-

tion extends to some others news events by some standard

not apparent from the statutory language.

A. Legislative History Prior to the Passage of the News

Exemptions

Central to the Commission’s reversal of its Goodwill,

Wyckoff and Columbia Broadcasting System decisions was

its determination that those decisions were based upon

an erroneous reading of the legislative history surround-

ing passage of the 1959 amendment to Section 315. Our

examination reveals that the legislative history preceding

passage of the amendment is irconclusive on the issue of

whether Congress intended specifically to include or ex-

clude non-studio debates and candidate’s press confer-

ences. It is clear, however, that Congress intended to give

the Commission some leeway in interpreting the four

exemptions and in applying them to particular program

formats in order to further the basic purpose of the

amendment, “[{To] enable what probably has become the

most important medium of political information to give

the news concerning political races to the greatest possible

number of citizens, and to make it possible to cover the

political news to the fullest degree.” *° That the Commis-

7° 105 CoNG. REC. 14451 (1959) (remarks of Sen. Holland).

See also 106 CONG. REC. 13424 (1960). (Sen. Pastore).

38a

sion has considerable discretion in this area is clear from

the Sennte Report, Which states in part:

| Tjhe committee in adopting the language of the

proposed leeishition carefully gave the Federal Com-

miunications Commission full flexibility and complete

discretion to examine the facts in each complaint

Which may be filed with the Commission. In. this

way the Commission will be able to determine on

the facts submitted in cach case whether a news-

cast, news interview, news documentary, on-the-spot

coverage of news event, or panel discussion is bona

fide or a “use” of the facilities requiring equal op-

portunity.

The Congress created the Federal Communications

Commission as an expert ageney to administer the

Communications Act of 1934. As experts in the

field of radio and television, the Commission has

gained a workable knowledge of the type of pro-

grams offered by the broadcasters in the field of

news, and related fields. Based on this knowledge

and other information that it is in a position to

develop, the Commission can set down some definite

guidelines through rules and regulations and where-

ever possible by interpretations.

S. Rep. No. 562, 86th Cong., Ist Sess. 12 (1959) (empha-

sis added).

That Congress intended the Commission to play an im-

portant role in developing the Section 315 exemptions is

aiso evident from Congress’ decision not to legislate in

detail, but rather to set out broad categories for exemp-

tion of news-related coverage and leave the Commission

with the task of implementing Congressional intent.’

See 105 Cone. Rec. 16227 (1959) (remarks of Rep.

'* In drafting the exemptions, the Senate and House Com-

riittees drew from a number cf proposed bills, including S.

1585, S. 1604, S. 1858, S. 1929, H.R. 7122, H.R. 7180, H.R.

39a

Celler) ; 105 Conc. Rec. 14455 (1959) (remarks of Sen.

Pastore). Moreover, the equal time provision itself con-

tains a provision, Section 315(d), granting the Commis-

sion authority to prescribe apptupriate rules and regula-

tions to carry out the provisions of Section 315. This is

something more than the normal grant of authority per-

mitting an agency to make ordinary rules and regulations,

since the Commission already has such authority to

“f'mlake such rules and regulations and prescribe such

restrictions and conditions, not inconsistent with law, as

may be necessary to carry out the provisions of this

chapter.” 47 U.S.C. § 303(1) (1937). See Kay v. FCC,

443 F.2d 638, 643 (D.C. Cir. 1970).

Although we believe it unnecessary here to retrace in

detail the legislative history preceding passage of the

7216, H.R. 7602, H.R. 7985, 86th Cong., Ist Scss. (1959). The

final version did not include earlier proposals to enumerate

specific exempt events, such as debates or panel discussions.

See, e.g., the Hartke bill (S. 1858). The climination of such

specific formats, however, was not intended to exclude them

if they could qualify under one of the gencral extegories of

news coverage in the final bill. Oren Harris, Chairman of the

House Committee and the bill’s floor manager, stated:

[T]he elimination of these categories by the committze

was not intended to exclude any of these programs if

they can be properly considered to be newscasts or on-

the-spot coverage of news events.

105 Conc. Rec. 16229 (August 18, 1959). See also id. at

17782 (Sept. 2, 1959) (remarks of Rep. Harris).

In short, in the final version of the bill, Congress opted for

exemptions based on general categories relating to news cov-

erage, rather than on specific program formats, and this of

necessity left the Commission with the task of deciding which

particular events could qualify within the limits of the statu-

tory language. Jd. at 17778 (Sept. 2, 1959) (remarks of

Rep. Harris). This is also clear from the language of § 315

(a) (4), “(including but not limited te political conventions

and activities incidental thereto) . . .” (emphasis added).

40a

1959 amendment, we note that it provides substantial

support, although inconclusive, for the Commission’s in-

terpretation. Under these circumstances, we believe it our

duty to defer to the Commission’s interpretation of the

statute which it is charged with administering. This court

has often reiterated the principle that

liJn approaching the problem of statutory inter-

pretation ... we show “great deference to the in-

terpretation given the statute by the officers or agency

charged with its administration. ‘To sustain the

Commission’s application of this statutory term, we

need not find that its construction is the only rea-

sonable one or even that it is the result we would

have reached had the question arisen in the first

instance in judicial proceedings.’ ”’

Philadelphia. Tclevision Broadcasting Co. v. FCC, 128

U.S.App.D.C. 298, 359 F.2d 282, 83-84 (1966) (citation

omitted). Such deference is especially appropriate where,

as here, Congress has opted for legislative generality,

leaving the agency with the task of evolving definitions

on a case-by-case basis. Sec, e.g., Hearings on S. 1585,

S. 1604, S. 1858 and S. 1929 Before the Communications

Subcommittee of the Senate Committee on Interstate and

Foreiqn Commerce, 86th Cong., Ist Sess. 96 (1959)

(Statement of Comm’r Doerfer). |

We also find petitioners’ argument that the four ex-

emptions were intended to be narrowly construed un-

supported by the legislative history. Rather, we find

more convincing the Commission’s, and Aspen’s, conten-

tion that the purpose of the 1959 amendment was broadly

remedial, and evidenced a willingness by Congress to

take some risks with the equal time philosophy in order

to permit broadcast coverage of on-the-spot news and

to enable broadcasters more fully to cover the political

4la

news.”* Admittedly, Congress intended that the 1959

amendments would preserve the basic philosophy be-

hind the equal time requirement.” At the same time,

however, Congress was determined to increase broad-

easter discretion and allow increased live broadcast cov-

erage of political news. This was the tone set for the

opening of the hearings on the proposed 1959 amend-

ments by Representative Harris, the Chairman of the

House Subcommittee on Communications and lower,

when he stated:

This section [| § 315] by providing absolute equality

among competing political candidates comes into con-

flict with two other worthy and desirable objectives:

First, the right of the public to be informed

through broadcasts of political events; and

Second, the discretion of the broadcaster to be

selective with respect to the broadcasting of such

events.

* The Senate Report stated that, “The publie bencfits are

so great that they outweigh the risk that may result from

the favoritism that may be shown hy some partisan broad-

casters.” S. Rer. No. 562, 86th Cong., Ist Sess. 10 (1959).

#” ~A careful examination of the legislative history of Sec-

tion 315 of the Communications Act and its predecessor,

Section 18 of the Radio Act of 1927, reveals clearly that

the fundamental objective of that statute was to require

any licensee who had allowed any legally qualified candi-

date to use his facilities to afford equal opportunities to

all other candidates for that same office. Its basic purpose

was to require equal treatment by broadcasters of all

candidates for a particular public office once the broad-

caster made a facility available to any one of the candi-

dates. This was a sound principle and the committee

re-emphasizes its belief in that objective.

S. REP. No. 562, 86th Cong., Ist Sess. 8 (1959) (emphasis

——e quoted in Brief for Petitioners Chisholm and NOW

at 27 n.4.,

42a

Thus the principle of absolute equality for com-

peling political candidates requires modification in

the light of these two additional considerations and

ihat is the specific problem which the Congress must

face -just how far the equality principle should

wive Way fo these other two principles. This ques-

tion is to be developed in the course of these hearings.

Hearings on H.R. 5389, H.R. 5678, H.R. 6526, H.R. 7123,

H.R. 7180, H.R. 7206, HL. 7602, H.R. 7985 Before the

Subcommittee on Communications and Power of the

House Committee on Interstate and Foreign Commerce,

S6th Cong., Ist Sess. at 1-2 (1959) (Statement of Hon.

Oren Harris, Chairman).

Nothing in the language of subsection 315(a) (4) it-

self would indicate that debates or press conferences

could not be considered “news events” worthy of cover-

age. On the contrary, the inherent newsworthiness of

speeches and debates seems no greater or less than that

of “political conventions and activities related thereto,”

evenis expressly within the scope of the exemption. It

is indisputable that print media consider such events

newsworthy.” We remain unconvinced by petitioners’

“°TIt seems beyond dispute, from a commonscnsical point

of view, that the Presidential press conference is an impor-

tant news event. Such conferences are regularly printed in

the newspapers—indeed, the New York Times regularly

prints a transcript of each Presidential press conference.

See gencrally MorRGAN, WAYS, MOLLENHOFF, LISAGOR and

KLEIN, THE PRESIDENCY AND THE PRESS CONFERENCE (1971) ;

Strout, LBJ Meets the Press . . . Sort of, 154 New ReE-

ruBLic 12 (1966). The networks regularly have covered

Presidential press conferences in their entirety since they

first beenme available in the mid 1950’s: In this regard, NBC

notes in its brief that since 1955 it has carried more than 100

Presidential news conferences, almost all those available.

NBC Brief at 35.

Deboetes between major candidates are also “news” in this

cayee We de not understand petitioners to contend, for

wo aot the Nixe>-Browr debrte at issue in the Wyckoff

mv nowsworthy. They contend rather that the

43a

arguments that these events are distinguishable based on

the degree of control by the candidate, or the degree

to which candidates tailor such events to serve their

own political advantages. It is more reasonable to be-

lieve, as the Commission apparently does, that any ap-

pearance by a candidate on the broadcast media is de-

signed, to the best of the candidate’s ability, to serve his

own political ends.*' There is ample support in the legis-

lative history for the Commission’s conclusion that a

candidate’s partial control over a press conference or

debate does not, by itself, exclude coverage of the event

from Section 315(a) (4). This conclusion is consistent

with the Commission’s new position that, absent evi-

dence of broadcaster intent to advance a particular can-

didacy, the judgment of the newsworthiness of an event

is left to the reasonable news judgment of professionals.”

event derived its newsworthiness from the appearances of

the candidates themselves and not from some independently

newsworthy event and, hence, would have given rise to equal

time obligations.

** The Commission’s Brief states at 25-26:

In keeping with the focus on the type of news coverage

of events rather than the events themselves, Congress

chose to detcrmine the bona fides of coverage by looking

at the intent of the broadcaster rather than at the in-

tent of the candidate . . . since a candidate always in-

tends to advance his candidacy.

2 Indeed, the Lar Daly case, the event which was responsi-

ble for the passage of the news exemptions, is in point. There

Congress expressly overruled the Commission’s holding that

news coverage of a mayor’s airport greeting of a foreign

dignitary and his opening of a charity drive constituted a

use of the broadcast media entitling all other mayoral can-

didates to equal time. At least with respect to the charity

drive, the event can be deemed newsworthy only because of

the mayor’s appearance, and the appearance was certainly

under his control. Similarly,

{iJn the case of political conventions the respective

political parties largely control whether, in what ca-

44a

See, c.g. National Broadcasting Company, 25 FCC 2d

739, 20 P & F Rapto Ree. 2d 301, 303 (1970); In re

Complaint Covering CBS Program, “Hunger in America,”

20 FCC 2d 143, 17 P & F Rapio Rec. 2d 674, 683

(19091; Thomas BR. Fadell, 40 FCC 380, 381-382, 25

P& PF RAplo Ree. 288, afd per curiam sub nom.,

Fodell v, Federal Commenications Commission, 25 P & F

Rapio Ree. 2063 (7th Cir. 1963).

Concurrently with the omission of the “incidental to”

requirement from subsection (a) (4), Congress in-

creased the scope of broadcaster discretion to determine

whether a news event was “bona fide” and deserving of

coverage. In the words of Chairman Harris,

Under the substitute agreed to in conference, the

appearance of a candidate on a newscast or news

interview will not be exempt from the equal time

requirement unless the newscast or news interview

is bona fide, and appearance of a candidate in on-

the-spot coverage of news events is not to be exempt

from the equal time requirements unless the pro-

gram covers bona fide news events. This require-

ment regarding the bona fide nature of the news-

cast, news interview or news events was not in-

cluded without careful thought by the conference

pucity, and to what extent a particular political candi-

date shall participate in the convention; and the broad-

custer exercises his news judgment primarily with re-

spect to whether or not he will provide on-the-spot cov-

erage of a particular political convention, and, if so,

what parts ....

H. R. Rep. No. 802, 86th Cong., 1st Sess. 7 (1959).

“’ We note that the 1959 amendment to Section 315 re-

tained the “incidental to” test in the definition of a “bona fide

news documentary” as a compromise between the Senate bill,

which had excluded documentaries, and the House bill, which

had not. See H.R. CONF. REP. No. 1069, 86th Cong., lst

Sess. 4, printed at 105 CoNG. REC. 17777 (1959).

45a

committee. It sets up a test which appropriately

leaves reasonable latitude for the exercise of good

faith news judgment on the part of broadcasters and

networks. ...

105 Conc. Rec. at 17782 (1959) (emphasis added).

It is thus inescapable that the final bill provided more

room for broadeaster discretion than the earlier version,

which had retained the “incidental to” language.

Whether broadcaster discretion was intended to be the

sole criterion of the bona fide nature of a news event,

absent a violation of the fairness obligation, is less

certain, however, and we are unable to reach a definite

conclusion from the legislative history. We note only

that the thrust of the 1959 amendment was toward in-

creasing broadcaster discretion to cover political news.

We find the Commission’s Opinion entirely consistent with

this theme.

Based thus on the broad intent of Congress to maxi-

mize broadcast coverage of political events and to in-

crease broadcaster discretion, as well as Congress’ ex-

pressed willingness to take some risks with the equal

time philosophy in order to achieve these goals and to

grant the Commission some leeway in interpreting the

exemptions, we ccnclude that the Commission’s recent

Opinion appears consistent with the general Congres-

sional purpose expressed in the legislative history pre-

ceding the 1959 amendment.

B. Congressional Action and Inaction Subsequent to

Passage of the 1959 Amendment

Petitioners argue that Congressional action after 1959

was consistent with their interpretation that Section

315(a) (4) was never intended to apply to debates or

press conferences and, alternatively, that Congress rati-

fied the Commission’s original interpretation of the bona

46a

fide news event exemption and subsequently “reenacted”

Section 315 without modifying the news exemptions.

We turn fist to petitioners’ contention that the 1960

suspension of the equal time requirement in order to

permit the so-called “Great Debates” between Democrat

John F. Kennedy and Republican Richard M. Nixon

evidenced a legislative recognition that debates were not

exempt under the 1959 amendment. Brief for peti-

tioners Chisholm and NOW at 40. We find no = such

indication. Senate Joint Resolution 207 suspended See-

tion 315 in its entirety as it applied to all Presidential

and Vice-presidential candidates; it never addressed the

coverage of the 1959 amendments and placed no limits

whatsoever on the kinds of events covered by broad-

easters.' Such political programming took a variety of

“* Senate Joint Resolution 207 provided:

Resolved by the Senate and House of Representatives

of the United Stetes of America in Conaress assembled,

That that part of section 515(a) of the Communica-

tions Act of 1954, as amended, which requires any li-

censee of a broadcast station who permits any person

who is » legally qualified candidate for any public office

to use a broadeasting station to afford equal opportuni-

ties to all other such candidates for that oflice in the

use of such broadcasting station, is suspended for the

period of the 1960 presidential and vice presidential

campaign with respect to nominees for the offices of

President and Vice President of the United States Noth-

ing in the foregoing shall be construed as relieving

broadeasters from the obligation imposed upon them

under this Act to operate in the public interest.

(2) The Federal Communications Commission shall

make a report to the Congress, not later than March 1,

1961, with respect to the effect of the provisions of this

joint resolution and any recommendations the Commis-

sion may have for amendments to the Communications

Act of 1934 as a resu't of experience under the pro-

visions of this joint resolution.

P.1.. 86-677.

47a

different forms, including some clearly not otherwise

exempt from the equal time requirements. Sce Hearings

Before the Communications Subcommittee of the Senate

Committee on Interstate and Foreign Commerce, 87th

Cong., Ist Sess. 66 (1961). In fact, the Senate Report

accompanying the Joint Resolution stated that one rea-

son for the suspension was that the Commission had not

yet had sufficient time to interpret the new exemptions;

consequently, the across-the-boxzrd suspension was de-

signed, at least in part, to provide time for necessary

evaluation of the effects of the amendments. S. Rep.

No. 1539, 86th Cong., 2d Sess. 2 (1960) (statement

of Sen. Pastore). Given the scope of the Section 515(a)

exemptions, especially their applicability to broadcast

coverage of all 1960 election contests except the Presi-

dential race and to all future contests as well, we must

conclude that the 1960 suspension of Section 315 is

more properly viewed as an isolated experiment in total

repeal of the equal time requirements for Presidential

and Vice-presidential candidates, and not as a recogni-

tion or limitation of the scope of the news coverage

exemptions.*°

Petitioners next argue that Congressional] acquiescence

in and affirmance of the Commission’s prior interpreta-

tion of the “bona fide news event” exemption over a

period of more than ten years demonstrates that the

Commission’s former interpretation was the correct one

and, consequently, that the Wyckoff, Goodwill, and Colwm-

bia Broadcast System decisions have taken on the force

of law. Specifically, petitioners urge that Congress was

aware of the Commission’s interpretation and did not

indicate disapproval. DNC Brief at 44-47. Petitioners

then argue that this inaction ratified the Commission’s

1962 decisions by acquiescence and, further, that the

2° This interpretation is also ccnsistent with the reporting

provision in subsection (2) of the Joint Resolution, supra.

48a

Federal Election Campaign Act of 1971 “reenacted” Sec-

tion 315, thereby incorporating the Commission’s interpre-

tation into the Act such that it could be altered only by

Congress. Brief for petitioners Chisholm and NOW at

65-66; DNC Brief at 44-51.

We begin by noting that attributing legal significance

to Congressional inaction is a dangerous business. See,

e.g., Power Reactor Development Co. v. Internationa!

Union of Eleetrical, Radio and Machine Workers, AFL-

CIO, 367 U.S. 396, 408-10 (1961). The Supreme Court

has said that Congressional failure to repudiate particu-

lar decisions “frequently betokens unawareness, preoc-

cupatio.., or paralysis” rather than conscious choice,

Zuber v. Allen, 396 U.S. 168, 185-86 n.21 (1969), and

“affords the most dubiousness foundation for drawing

positive inferences,” United States v. Price, 361 U.S. 304,

310-11 (1960) (Harlan, J.).° See also Jones v. Liberty

Giass Co., 332 U.S. 524, 5383 (1947) (“The doctrine of

legislative acquiescence is at best only an auxiliary tool

for use in interpreting ambiguous statutory provisions”).

On the other hand, the Court has recently stated that

| a| court may accord ereat weight to the longstand-

ing interpretation placed on a statute by an agency

°° In Zuber v. Allen, the Court went on to state:

“It is at best treacherous to find in congressional silence

alone the adoption of a controlling rule of law.” Girouard

v. Umted States, 328 U.S. 61, 69 (1946). Its signifi-

cance is greatest when the area is one of traditional

year-by-year supervision, like tax, where watchdog com-

mittees are considering and revising the statutory

scheme. Even less deference is due silence in the wake

of unsuccessful attempts to eliminate an offending in-

terpretation by amendment .... Where, as in the case

before us, there is no indication that a subsequent Con-

gress has addressed itself to the particular problem,

we are unpersuaded that silence is tantamount to acqui-

escence, let alone ...uapproval....

396 U.S. at 186 n.21 (emphasis added).

49a

charged with its administration. This is especially

so where Congress has reenacted the statute with-

out pertinent change. In these circumstances, con-

gressional failure to revise or repeal the agency’s

interpretation is persuasive evidence that the in-

terpretation is the one intended by Congress.

NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75

(1974) (citations omitted).

Petitioners argue that Congress acquiesced in the FCC’s

prior interpretation both actively and passively; “pas-

sively by not enacting legislation to correct it, and ac-

tively by, in effect, reenacting § 315 in 1972 by amend-

ments in important particulars, without in any way

changing the language of the statute here pertinent.”

DNC Brief at 19. The Commission’s interpretation of

the 1959 amendments, petitioners assert, “was well

known and clearly understood by Congress in the ensu-

ing decade.” DNC Brief at 44.

Our examination of Congressional action subsequent

to the enactment of the equal time exemptions reveals

nothing that can be interpreted as active approval of

the Commission’s 1962 interpretation. Subsequent heer-

ings concentrated more

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